Exercising discretion when applying to the court for a Council Tax Liability Order

Roedd y cais yn llwyddiannus.

Dear Hertsmere Borough Council,

The Council Tax (Administration and Enforcement) Regulations 1992 (the "Regulations") confer a duty on the billing authority to exercise discretion under regulation 34(1) when deciding whether to institute a complaint to the Magistrates' court to enforce payment.

Regulation 34(1) as amended by Regulation 15 of SI 1992/3008 states, with the relevant part emphasised, as follows:

"If an amount which has fallen due under paragraph (3) or (4) of regulation 23 (including those paragraphs as applied as mentioned in regulation 28A(2)) is wholly or partly unpaid, or (in a case where a final notice is required under regulation 33) the amount stated in the final notice is wholly or partly unpaid at the expiry of the period of 7 days beginning with the day on which the notice was issued, THE BILLING AUTHORITY MAY, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable."

Regulation 34(2) states as follows:

"The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding."

The following are examples (but by no means exhaustive) of what are reasonable factors a recovery officer should take into account in exercising discretion to institute a complaint to the Magistrates court under paragraph (2) of regulation 34 of the Regulations:

1. the level of debt outstanding

2. any payments made subsequent to the full amount becoming due and time remaining of the financial year

3. are circumstances indicative of the debt being settled without resorting to enforcement

4. consider if enforcing the debt would unnecessarily subject the taxpayer to additional costs etc. and therefore amount to a penalty (see 3 above)

5. ensure monies have been prioritised to maintaining the in-year debt

6. allocate to the in-year any monies posted to arrears (or sufficient of it) that would if it had not been misallocated prevented the in-year liability also falling in arrears (see 5 above)

7. check for benefit claims or appeals already in the system and refrain from taking enforcement action where such genuine cases are unresolved

Q1. Does Hertsmere Borough Council exercise discretion before proceeding under regulation 34(2) of the Council Tax (Administration and Enforcement) Regulations 1992 to request a summons from a justice of the peace (it may be an automated process)

Q2. If yes to (1) what factors are taken into consideration

Yours faithfully,

Helen Barker

foi, Hertsmere Borough Council

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foi, Hertsmere Borough Council

Dear Helen Barker,

I am writing in response to your Freedom of Information request received
20^th April 2020.

Your request has now been considered under the terms of the Freedom of
Information Act and/or Environmental Information Regulations and we are
able to respond as follows:

 

Your Request:

The Council Tax (Administration and Enforcement) Regulations 1992 (the
"Regulations") confer a duty on the billing authority to exercise
discretion under regulation 34(1) when deciding whether to institute a
complaint to the Magistrates' court to enforce payment.

 

Regulation 34(1) as amended by Regulation 15 of SI 1992/3008 states, with
the relevant part emphasised, as follows:

 

"If an amount which has fallen due under paragraph (3) or (4) of
regulation 23 (including those paragraphs as applied as mentioned in
regulation 28A(2)) is wholly or partly unpaid, or (in a case where a final
notice is required under regulation 33) the amount stated in the final
notice is wholly or partly unpaid at the expiry of the period of 7 days
beginning with the day on which the notice was issued, THE BILLING
AUTHORITY MAY, in accordance with paragraph (2), apply to a magistrates'
court for an order against the person by whom it is payable."

 

Regulation 34(2) states as follows:

 

"The application is to be instituted by making complaint to a justice of
the peace, and requesting the issue of a summons directed to that person
to appear before the court to show why he has not paid the sum which is
outstanding."

 

The following are examples (but by no means exhaustive) of what are
reasonable factors a recovery officer should take into account in
exercising discretion to institute a complaint to the Magistrates court
under paragraph (2) of regulation 34 of the Regulations:

 

1. the level of debt outstanding

 

2. any payments made subsequent to the full amount becoming due and time
remaining of the financial year

 

3. are circumstances indicative of the debt being settled without
resorting to enforcement

 

4. consider if enforcing the debt would unnecessarily subject the taxpayer
to additional costs etc. and therefore amount to a penalty (see 3 above)

 

5. ensure monies have been prioritised to maintaining the in-year debt

 

6. allocate to the in-year any monies posted to arrears (or sufficient of
it) that would if it had not been misallocated prevented the in-year
liability also falling in arrears (see 5 above)

 

7. check for benefit claims or appeals already in the system and refrain
from taking enforcement action where such genuine cases are unresolved

 

Q1. Does Hertsmere Borough Council exercise discretion before proceeding
under regulation 34(2) of the Council Tax (Administration and Enforcement)
Regulations 1992 to request a summons from a justice of the peace (it may
be an automated process)

 

Q2. If yes to (1) what factors are taken into consideration

 

Our Response:

1.       We will always listen to a resident if they contact us before the
summons is issued and would use our discretion as to whether or not to
proceed

2.       Each case is decided on its own merits but factors such as
illness, disability, sudden drop in income as well as issues around the
property are all taken into account.

 

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Dear foi,

Thank you for your response. On a related matter, I would like it clarifying whether an arrangement is possible after the summons stage and if so would the liability order not be proceeded with and the £65.00 summons /£10.00 liability order costs be avoided?

I have been unable to find any information on the council's website and there doesn't seem to be a debt recovery policy available to the public.

Yours sincerely,

Helen Barker

foi, Hertsmere Borough Council

4 Atodiad

Dear Helen Barker

 

You have requested further information on your FOI.

 

Your Request

 

Thank you for your response. On a related matter, I would like it
clarifying whether an arrangement is possible after the summons stage and
if so would the liability order not be proceeded with and the £65.00
summons / £10.00 liability order costs be avoided?

 

I have been unable to find any information on the council's website and
there doesn't seem to be a debt recovery policy available to the public.

 

Response

 

If a resident contacts us after receiving the summons but before the
liability order is granted, we will always proceed with the liability
order (incurring £10.00 cost) unless the account is paid in full
(including the £65.00 summons costs).

 

I hope this answers your question.

 

Information Services

Hertsmere Borough Council | Civic Offices | Elstree Way | Borehamwood |
Herts | WD6 1WA

t: 020 8207 2277

email: [1][Hertsmere Borough Council request email]

 

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Dear foi,

Thank you for your replies.

It does not constitute discretion if a decision of whether to apply it or not depends on being prompted by the customer, parameters being agreed in advance relating to the outstanding monetary value of a customer's account or other information that can be input so the council tax processing system can detect it when running the complaint list. Discretion could only be appropriately applied at a stage when the summons is normally requested, i.e. when all the relevant circumstances are known about the customer's account at that particular time.

The council's website and information obtained indicate that discretion is not exercised at the point where a decision is needed to be made about whether to request a summons. Discretion is applied earlier than this, after a summons has been issued but before a liability order is obtained and after a liability order has been obtained, primarily to make payment arrangements which need to be monitored after the debt is secured by a liability order. The actual process of running the complaint list and the summonses is automated for which the defendant incurs disproportionate costs.

It is apparent from information I have seen that the defendant incurs a £65.00 sum in respect of the council requesting the issue of a summons (an automated procedure). However, that sum actually covers the council's additional expenditure in respect of sending out reminders and officer time engaging with customers who query their accounts at these points. Also the same for final notices (see below) and after a summons has been issued in respect of customers who query their accounts to arrange payment plans which are conditioned in the latter case upon the council obtaining a Liability Order (to secure the debt). A total £75.00 court costs are added comprising summons costs of £65.00 plus a further £10.00 for the Liability Order. The £10.00 sum is added to the £65.00 costs already incurred for the request of the summons in respect of the accounts of all customers who have not paid the total amount outstanding of their liability before the court hearing, whether choosing to query their accounts or not. This is to compensate the council for the officer time attributed to dealing with customers (in respect of those who contacted them) and making the application for a Liability Order (on day of the hearing).

Before the summons stage (final notice), it is possible for a customer to avoid summons costs, for example, a taxpayer who has lost her right to pay by instalments may have them effectively re-instated if she agrees a special payment arrangement /switches her method of payment to direct debit. Discretion whether to enter into a payment agreement with a taxpayer is applied again once the council has obtained a liability order (as an alternative to taking recovery action) but of course by that time she would have had the total £75.00 court costs added to the debt and included in the payment plan.

So the costs in reality cover the council's expenditure (additional to the issue of the summons) attributable to before the summons is requested, both after the summons is requested but before the liability order application and after the order has been obtained in respect of officer time engaging with customers who agree special payment arrangements. The costs must therefore with absolute certainty cover the general administration of the council tax and enforcement departments.

Additionally the fee paid to HMCTS which is incorporated into the summons cost was reduced a year or two ago. The £3.00 fee was reduced by £2.50 to £0.50 after a detailed review had been carried out by the Ministry of Justice (it identified that the court were making a profit). However, the costs recharged to the customer didn't reflect the council's reduction in expenditure, the total costs remained at £75.00.

RELEVANT LEGISLATION AND CASE LAW

I understand that the council must adhere to the Council Tax (Administration and Enforcement) Regulations 1992 and also be mindful of all established case law regarding the area concerned.

I am aware of a number of cases but particularly two which I would like to refer to regarding your response namely R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin) and Williams v East Northamptonshire [2016] EWHC 470 (Admin)

Williams v East Northamptonshire [2016] EWHC 470 (Admin)

I note the council's website states that 'if no payment, or no acceptable payment arrangement, is made within 14 days of sending the final notice, you will receive a Magistrates' Court summons and court costs of £65 will be added to the amount that you owe us'. I am making the assumption that the costs are actually added to the customer's account at this point because it is generally the approach taken by local authorities.

I am aware that in the East Northamptonshire case, the judgment went to some lengths to clarify the position with regard to when, i.e. at what stage it was permissible for a billing authority to add summons costs to a customer's account. In essence, what the judgment determined was that it was entirely lawful for the billing authority to inform the customer by stating on the summons the amount of costs it would ask for in the event it proceeded to make the application at court for a Liability Order. Implicit in this is that it is impermissible to add to the customers account at this point the costs claimed by the billing authority because there is only any legal basis to do so once the court has granted the Liability Order. The following in paragraph 28 of the judgment bears this out:

"...I have come to the clear conclusion that the summons is not an abuse of the process or otherwise invalid by reason of the fact that it includes reference to a claim for costs. The heading of the summons makes clear it seeks recovery of the Council Tax only. The complaint is therefore only as to the non payment of the Council Tax. The tax due is the Council Tax which is separately identified both on the first page and on the subsequent page. It is abundantly clear that the subject matter of the summons is therefore the recipient’s liability for the Council Tax...."

NO LEGAL BASIS TO PURSUE LIABILITY ORDER ONCE AN AMOUNT AGREED

From the various information obtained it is evident that after the summons is issued but before the liability order hearing it is possible to agree a special payment arrangement which will include a further £10.00 costs (additional to the £65.00 summons) and that the council will still seek a court order to secure the debt.

These costs are incurred at a point after the customer has tendered payment. Therefore, the cost attributable to this activity could not lawfully be included in the costs claimed because expenditure may only be recharged that has been incurred by the authority up to the time of the payment or tender and clearly resources called upon by engaging staff in the matter would occur after payment was tendered. Expenditure incurred by the authority after that point falls on the wrong side of line to be referable to the summons and would only be lawfully recharged (if eligible) in respect of those who had not paid or tendered to the authority the aggregate of the outstanding amount and costs before the court hearing because only those customers may be proceeded against further and incur additional costs.

To be clear, it is not just the costs in these circumstances which are artificially inflated by either front loading or being charged where there is no legal basis at all which is a point of contention. The consequences are that for all those cases against whom the council proceeds in order to secure the debt once an amount has been agreed (the payment arrangement), the action is unlawful because regulation 34 of SI 1992/613 provides that the authority shall accept the amount and the application shall not be proceeded with in these circumstances.

Paragraph 34(5) of the regulations, are as follows (with emphasis):

“(5) If, after a summons has been issued in accordance with paragraph (2) but before the application is heard, there is paid or TENDERED to the authority an amount equal to the aggregate of—

(a) the sum specified in the summons as the sum outstanding or so much of it as remains outstanding (as the case may be); and

(b) a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application UP TO THE TIME OF THE payment or TENDER,

the authority shall accept the amount and the application shall not be proceeded with.”

The authority could not defend its actions on the grounds that an arrangement does not constitute payment therefore it is entitled to obtain a liability order to secure the debt because the law does not say that the amount must be paid for the application not to be proceeded with, only that the amount tendered is accepted (the aggregate of the outstanding amount and costs). By agreeing a payment plan which encompasses the outstanding amount and costs (costs which are properly referable to the enforcement process) the authority has accepted the amount and so there is no legal basis to proceed to obtain a liability order from the Magistrates' court.

Notwithstanding the lack of provision to proceed once the aggregate of the outstanding amount and costs has been agreed by the council, even if it were permissible, these costs and any other incurred would have further criteria to meet for the court to be satisfied that they were reasonably incurred.

R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin)

The Tottenham case provides in the judgment some general guidance regarding Council Tax Liability Order court costs and give clues (paragraphs 35 and 46) as to what should not be included in the costs and an approach that might be legitimate in respect of averaging the costs.

“It is clear that there must be a sufficient link between the costs in question and the process of obtaining the liability order. It would obviously be impermissible (for example) to include in the costs claimed any element referable to the costs of executing the order after it was obtained, or to the overall administration of council tax in the area concerned.” (Paragraph 35)

"In principle, therefore, provided that the right types of costs and expenses are taken into account, and provided that due consideration is given to the dangers of double-counting, or of artificial inflation of costs, it may be a legitimate approach for a local authority to calculate and aggregate the relevant costs it has incurred in the previous year, and divide that up by the previous (or anticipated) number of summonses over twelve months so as to provide an average figure which could be levied across the board in "standard" cases.." (Paragraph 46)

However, the above does not go so far as to specify what the right types of costs and expenses are, plus the 1992 Council Tax Regulations (and associated guidance) also apply so any provisions in those capable of establishing what are "relevant costs" need taking into account. Crucially, the possibility that the approach of averaging the costs is conditional upon the right types of costs and expenses being taken into account and being mindful of the dangers of artificially inflating the costs.

Government guidance from 1993 and 2013 both provide within them that "the Court may wish to be satisfied that the amount claimed by way of costs in any individual case is no more than that reasonably incurred by the authority". They do so because the court is obliged to hear individually anyone wishing to raise a defence and regulation 35(1) of the Regulations provides that a single liability order may deal with one person and one amount.

The streamlining of the process, i.e. by hearing cases of all the defendants in a bulk application who decline the invitation to defend themselves would if the law was properly applied be met with a forfeiture of costs income because only expenditure which is common to every defendant may lawfully be included in a standard sum. For example, even if expenditure attributable to engaging with customers agreeing payment arrangements was not impermissible for the reasons discussed, they would not otherwise be deemed "relevant costs" to be included in the calculation because the expenditure is not common to every defendant but also because it would be impermissible to include in the costs any element referable to the overall administration of council tax in the area concerned (para 35, Tottenham judgment).

It can particularly be said with regard to Hertsmere that the summons costs explicitly encompass an element of front loaded expenditure because up until 2016/17 the majority of the costs were not charged at the summons stage. The costs were split in the ratio of 37:63 in respect of the summons/liability order costs (now 87:13).

There is also the anomaly that the customers who to the greatest degree drive the level of activity are ironically avoiding the recovery process and not incurring any costs. These are generally those customers who have negotiated their instalments being re-instated by agreeing special payment arrangements (agreeing to switch their payment method to direct debit), whilst customers who settle their debt without causing additional work are left subsidising this expenditure when bizarrely none is incurred in connection with their summonses.

Expanding further on the concept of "reasonably incurred". If the costs are to be recharged lawfully to the customer it must have been reasonable for the council to have incurred them. Any expenditure recharged to the customer in respect of costs has not been reasonably incurred which is attributable to activity carried out by the council above what is necessary to secure the court order. Obtaining the order is merely a formality and it functions simply as the vehicle empowering the council to make use of a range of enforcement measures to pursue monies owed should it be necessary once it is in place, so with that in mind and that applications are made en masse, then the vast majority of costs typically claimed by local authorities are not necessary in a process which amounts to no more than seeking permission from the court.

Expenditure attributable to work carried out, which is clearly by its nature referable to the overall administration (in the area of council tax concerned) would not by virtue of it coinciding with when the complaint is in progress be sufficient to link it to the actual process of obtaining the liability order. This is separable from any that is permissible to be included in the costs claimed and would need omitting from the calculation because it would not be reasonable to expect those paying them to subsidise general administration or to be exploited as a means of funding revenues/recovery staff - and - because it is not common to every defendant.

It is generally accepted by billing authorities that defences against the issue of a Liability Order at the court hearing which are considered to be valid are restricted to no more than a handful. However, there are nine obvious additional defences that would be valid if no discretion is exercised prior to requesting the issue of a summons and expenditure incurred by the council outside the process of applying for and obtaining a liability order is included in those costs. They would be that;

1. the billing authority has not (does not) comply with regulation 34(1) of the Council Tax (Administration and Enforcement) Regulations 1992;

2. expenditure amounting to £65.00 was not incurred by the council in respect of instituting the complaint;

3. the costs have been inflated to subsidise customers who opt to make payment in line with the pre-arranged payment plans;

4. the costs in respect of instituting the summons include expenditure which is incurred by the council after that action;

5. the costs have been inflated specifically by an amount equal to the reduction of the fee payable to HMCTS for each application;

6. the costs have been inflated to subsidise expenditure incurred by the council in respect of potential applications to the court but which are not made by virtue of negotiations that have taken place to arrange for direct debit payments;

7. the costs have been inflated to subsidise expenditure incurred by the council in respect of potential applications to the court but which are not made by virtue of negotiations that have taken place to reinstate instalments;

8. the costs in general have been inflated to subsidise expenditure incurred by the council in respect of officer time monitoring arrangements and/or engaging with customers after the process of applying for and obtaining the liability order has ended; and

9. the costs in general have been inflated to fund the running of the council tax and enforcement departments and/or the overall administration of council tax in the area concerned.

I would appreciate the council confirming that the response to my request is "No" to (Q1) and therefore "N/A" in respect of (Q2).

Yours sincerely,

Helen Barker

foi, Hertsmere Borough Council

Dear Ms Barker,

I refer to your emails of 20.4.20, 11.6.20 and 20.7.20 in which you were
enquiring into the way in which the council considers whether to institute
proceedings to apply for a liability order as part of its council tax
enforcement process.  Your query had been treated as a request for
information under the Freedom of Information Act 2000.  In the
circumstances, as it appears that you are dissatisfied with the council’s
reply, I have carried out a review of the matter.

 

By your email of 20.4.20 you posed the following questions:

 

Q1. Does Hertsmere Borough Council exercise discretion before proceeding
under regulation 34(2) of the Council Tax (Administration and Enforcement)
Regulations 1992 to request a summons from a justice of the peace (it may
be an automated process).

 

Q2. If yes to (1) what factors are taken into consideration.

 

By email dated 27.5.20 the council replied to your questions as follows:

 

“1.          We will always listen to a resident if they contact us before
the summons is issued and would use our discretion as to whether or not to
proceed.

2.            Each case is decided on its own merits but factors such as
illness, disability, sudden drop in income as well as issues around the
property are all taken into account.”

 

By your further email dated 11.6.20 you enquired:

 

On a related matter, I would like it clarifying whether an arrangement is
possible after the summons stage and if so would the liability order not
be proceeded with and the £65.00 summons /£10.00 liability order costs be
avoided?

 

By its email dated 16.7.20 the council replied:

 

 

“If a resident contacts us after receiving the summons but before the
liability order is granted, we will always proceed with the liability
order (incurring £10.00 cost) unless the account is paid in full
(including the £65.00 summons costs).”

 

 

In your subsequent email dated 20.7.20 you asked for confirmation that the
council’s previous response was confirmation in the negative to your
question 1 and “N/A” to question 2.

 

 

It is the council’s contention that it is not obliged to enter into
discussions of legal analysis with the public at large as to how it might
exercise its discretion in considering to apply for summonses for
liability orders.

 

The questions you have asked have been adequately answered in the
council’s above replies and the council is not required to take any more
action in this matter.

 

In accordance with Section 50 Freedom of Information Act 2000 you have the
right to complain to the Information Commissioner’s Office if you are
dissatisfied with this determination.

 

 

You may make contact with the Information Commissioner at:

Information Commissioners Office

Wycliffe House, Water Lane

Wilmslow

Cheshire    SK9 5AF

Telephone: 0303 123 1113            Website:  [1]www.ico.org.uk

 

Yours sincerely,

 

 

 

 

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Dear foi,

Thank you for your response. I do not wish to pursue this, however, the council might want to reconsider its actions regarding the recovery of Council Tax in light of the issues. Incidentally, the point discussed re 20 July email under the heading 'NO LEGAL BASIS TO PURSUE LIABILITY ORDER ONCE AN AMOUNT AGREED' is not a discretionary matter. I suggest this and the other points raised are considered by the Monitoring Officer, but that is of course a matter for the council.

Yours sincerely,

Helen Barker