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

Gwrthodwyd y cais gan Dudley Council.

Dear Dudley 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 Dudley Council exercise discretion before proceeding to the Magistrates' court to seek permission to enforce payment (it may be an automated process)

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

Yours faithfully,

Helen Barker

Dudley Triggers, Dudley Council

Dear Helen Barker,

Information Access Request - Information Request DMBCIR:23005
Description : Exercising discretion when applying to the court for a
Council Tax Liability Order

I acknowledge your request for information received on 2020-04-03
18:48:00.

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[Dudley Metropolitan Borough Council request email]

Dear Dudley Triggers,

I have been alerted to the fact that my request could have been clearer. In order to remove any ambiguity my request is amended as follows:

Q1. Does Dudley 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 sincerely,

Helen Barker

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Information Governance, Dudley Council

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Corporate Information Governance Team
3/5 St James’s Road, Dudley West Midlands. DY1 1HP
Tel: (01384) 815607  Fax: (01384) 815660
Email:[Dudley Metropolitan Borough Council request email]
[1]www.dudley.gov.uk
 

Our ref: 23005 Direct Line: 01384 816546 Date: 30/04/2020

 
 
Dear Helen Barker,
 
Freedom of Information Act 2000 - Information Request 23005
 
I acknowledge your request for information received on 03/04/20. Our
response is 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 Dudley Council exercise discretion before proceeding to the
Magistrates' court to seek permission to enforce payment (it may be an
automated process)
 
Q2. If yes to (1) what factors are taken into consideration
 
 
Our Response
 
1. Yes Dudley Council can and does use discretion, where the customer or a
representative contacts prior to action taking place.
 
2. Each case is reviewed on its own merits, factors considered may
include, but not limited to:

* Financial circumstances
* Illness
* Bereavement.

 
 
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request; it would be helpful if you could refine your request so that we
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Dudley Council Plus on 0300 555 2345 who will be able to assist you.
 
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the decision, you should write to the Freedom of Information Officer at
Dudley MBC, The Council House, Dudley, West Midlands, DY1 1HF, telephone
0300 555 2345, e-mail [2][Dudley Metropolitan Borough Council request email]. 
 
Please remember to quote the reference number above in any future
communications.
 
If you are not content with the outcome of your complaint, you may apply
directly to the Information Commissioner for a decision.  Generally, the
ICO cannot make a decision unless you have exhausted the complaints
procedure provided by Dudley MBC.
 
The Information Commissioner may be contacted at:
 
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow 
Cheshire 
SK9 5AF
Telephone:   01625 545 700
[3]www.ico.org.uk
 
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Information Act 2000 requests will be subject to copyright protection.  In
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supplied for your own use, including for non-commercial research
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reporting.  However, any other type of re-use, for example, by publishing
the information or issuing copies to the public will require the
permission of the copyright owner.
 
For information where the copyright is owned by the Council details of
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[4]www.dudley.gov.uk.
 
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organisation, you must apply to the copyright owner to obtain their
permission.
 
 
Yours sincerely,
 
 
Steven Attwood
Information Governance Officer
 
Corporate Information Governance Team
The Council House
Priory Road, Dudley, West Midlands, DY1 1HF
 
01384 81 6546
 
[5]www.dudley.gov.uk
 
 
 
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References

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1. http://www.dudley.gov.uk/
2. mailto:[Dudley Metropolitan Borough Council request email]
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Dear Information Governance,

Thank you for your response.

It does not constitute discretion if a decision of whether to apply it or not depends on being prompted by the customer.

In any event, the council's website indicates that no discretion is exercised before requesting the issue of a summons and the procedure is effectively automated (the defendant incurs a £92.50 sum for that action). From the council's website and various other information I have seen the customer then has the option to agree a payment plan as an alternative to enforcement, providing he keeps to the agreed conditions, which include that a Liability Order is obtained and the arrangement includes the £92.50 court costs. It also appears that an arrangement is possible at the final notice stage and if so potential costs are avoided. So the costs in reality cover the council's additional expenditure both before and after the summons is requested in respect of officer time engaging with customers who choose to query their accounts and arrange payment plans which is conditioned upon the council obtaining a Liability Order in some cases (to secure the debt). This is presumably to compensate the council for the officer time attributed to agreeing the arrangement (in respect of those who choose that option) and making the application for a Liability Order (on day of the hearing).

However, the costs are £92.50 only when the balance outstanding is above £95.00. If the balance is less than this only £12.50 costs are added.

The councils recovery policy also states in a list what would be valid defences against the issue of a Liability Order at the court hearing and another stating what are not valid defences. However, there are six 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 both before and once the summons has been issued are included in those costs and there are different amounts of costs added. 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 £92.50 was not incurred by the council in respect of instituting the complaint;

3. the costs have been inflated to subsidise customers who elect to query their accounts, make payment arrangements, etc.;

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

5. the higher level of costs have been inflated to subsidise expenditure incurred by the council in respect of the lower level of costs (see Bexley Council v Magistrates' Court: [2016] EWHC 711 Admin); and

6. the costs in general have been inflated to subsidise expenditure incurred in respect of potential applications to the court but which are not made by virtue of payment plans being arranged for those who agree them and for whom benefit from avoiding the costs

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

Yours sincerely,

Helen Barker

Information Governance, Dudley Council

Dear Helen Baker,

Thank you for your email dated 2nd May 2020 requesting a review of the response the council provided in regards to your request for information DMBCIR:23005.

Your request was for:

"Q1. Does Dudley Council exercise discretion before proceeding to the Magistrates' court to seek permission to enforce payment (it may be an automated process)

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

The council's response was:

Q1. Yes Dudley Council can and does use discretion, where the customer or a representative contacts prior to action taking place.

Q2. Each case is reviewed on its own merits, factors considered may include, but not limited to:

* Financial circumstances
* Illness
* Bereavement.

You have subsequently communicated that you disagree with this response and specifically requested:

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

The Freedom of Information Act 2000 provides you with a general right of access to information held by a public authority. The Act specifically provides:

(1) Any person making a request for information to a public authority is entitled -

(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him

In this context, it is clear that the council has provided you with a response based on its understanding of the situation. The Act does not require the council to change its response to one that you would have preferred to have received.

In conclusion, I confirm that the response originally provided is the position of the council at this time and the response remains unchanged.

To try and ensure that we are not missing any particular point, contact can be made directly with our Recovery Manager, Mr Karl Gray, on 01384 811700, should you wish to discuss this further.

If you are not content with the outcome of your complaint, you may apply directly to the Information Commissioner for a decision. Generally, the ICO cannot make a decision unless you have exhausted the complaints procedure provided by Dudley MBC.

The Information Commissioner may be contacted at:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Telephone: 0303 123 1113
www.ico.org.uk

Most of the information that we provide in response to Freedom of Information Act 2000 requests will be subject to copyright protection. In most cases the copyright will be owned by Dudley MBC. The copyright in other information may be owned by another person or organisation, as indicated in the information itself. You are free to use any information supplied for your own use, including for non-commercial research purposes. The information may also be used for the purposes of news reporting. However, any other type of re-use, for example, by publishing the information or issuing copies to the public will require the permission of the copyright owner.

For information where the copyright is owned by the Council details of the conditions on re-use can be found on our website at www.dudley.gov.uk.

For information where the copyright is owned by another person or organisation, you must apply to the copyright owner to obtain their permission.

Yours sincerely,

Mr L J Bourne
Data Protection and Information Governance Manager

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