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

Helen Barker made this Rhyddid Gwybodaeth request to Mansfield District Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Roedd y cais yn llwyddiannus.

Dear Mansfield District 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 Mansfield District 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

noreply, Mansfield District Council

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mdcfoi, Mansfield District Council

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Ashfield District Council
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dangos adrannau a ddyfynnir

mdcfoi, Mansfield District Council

Dear Ms Barker
 
FREEDOM OF INFORMATION REQUEST – Ref No: 005667
 
Thank you for your email of the 4 May 2020 where you requested information
about the discretion we exercise 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.
 
The information you requested is:
 
Q1. Does Mansfield District 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) - We do use our discretion where appropriate but
the generating and issuing of summonses is an automatic process and we
don’t have the capacity to check every account before issuing summonses.
 
Q2. If yes to (1) what factors are taken into consideration –

i. If we are aware of an individual’s circumstances and we consider it
inappropriate to apply for a liability order we will not issue a
summons notice.
ii. When selecting cases we exclude registered benefit claims.
iii. Our Council Tax database is set up to allocate payments to in year
debt where the amount paid matches an instalment amount.
iv. We do offer the incentive of withdrawing a summons if payment is made
in full before the liability order hearing date.
v. We used to summons for no less than £50.00 but the introduction of the
Council Tax Reduction Scheme resulted in many claimants paying 10%
annually. This meant there were lots of customers with monthly
instalments much less than £50.00 a month and if they didn’t pay they
weren’t getting selected for a summons until they were several months
in arrears.  

 
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Yours sincerely
 
Colin Sawers
Information Officer
Ashfield and Mansfield Legal Services

Ashfield District Council
Urban Road
Kirkby-in-Ashfield
NOTTINGHAM
NG17 8DA

Tel: (01623) 457332
Email: [email address]

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dangos adrannau a ddyfynnir

Dear mdcfoi,

Thank you for your response.

Since I submitted my request a number of anomalies have come to light regarding the enforcement procedure in the area concerned. However, I do not wish to pursue this, though the council might want to reconsider its actions regarding the recovery of Council Tax in light of the issues. Note later on under the heading 'NO LEGAL BASIS TO PURSUE LIABILITY ORDER ONCE AN AMOUNT AGREED' the point discussed 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.

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 indicates 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 the council's website that the defendant incurs a £70.00 sum in respect of the council requesting the issue of a summons (an automated procedure). However, that sum will actually cover 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 case of the latter, upon the council obtaining a Liability Order (to secure the debt). The £70.00 sum is added to the accounts of all customers who have not paid the total amount outstanding of their liability, whether choosing to query their accounts or not and those who have settled their accounts before a liability order is applied for. 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 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 by that time she would have had the total £70.00 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 liability order has been obtained in respect of officer time engaging with customers who agree to enter into 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 £70.00.

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 three which I would like to refer to regarding your response namely R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin); Regina v Highgate Justices ex parte Petrou [1954] 1 ALL ER 406 and Williams v East Northamptonshire [2016] EWHC 470 (Admin).

Regina v Highgate Justices ex parte Petrou [1954] 1 ALL ER 406

The council's approach in treating customers differently regarding arrangements and the application (or not) of costs etc., implies that the authority exploits the liability order application process to be used as a means of encouraging a change in behaviour. The suggestion that the council chooses to waive costs in some cases but not others points to the costs of the court application being exploited to act as a penalty.

Evidently from the council's website the customer is offered the option to carry on paying by instalments once their right to do so has been lost at the final notice stage (when the whole outstanding balance is due) if they agree to change their payment method to Direct Debit. The loss of entitlement to pay by instalments will for an element of customers inevitably lead to their debt being subject to enforcement and the addition of costs. In these circumstances, the use of enforcement is not a necessary step, not if the council can be swayed from resorting to it if the customer elects to pay her Council tax by Direct Debit. The council having such a policy is clearly exploiting the threat of enforcement as bargaining power to secure a greater number of customers using the council's preferred method of payment.

It is likely that the council would prefer not to have to pursue payment by the various recovery methods permitted by the liability order because it would be more convenient and cause less administration not to and in any event, the chances of the whole amount being recovered would be greater (and quicker) if private contractors were not first having to be paid their enforcement fees. Whether the recovery action is pursued and costs imposed hinges on how the customer engages with the council after payment has been defaulted on. Pursuing recovery in some cases but not others suggests that rather than enforcement being necessary and the most appropriate course of action in every case, the costs of the court application are exploited to act as a penalty.

The law makes no provision for one party wishing to make use of the court to do so in order to inflict a penalty on the other by way of the costs which the court may order against the defendant. The judgment in the Highgate Justices case held that costs should not exceed the proper expenditure incurred and should not be a penalty. If the council requires further powers to enforce the debt, the court's permission must first be obtained, so the costs are incurred as a consequence, rather than the purpose of the application. Local authorities which exploit the judicial procedure to act as a deterrent in a way that penalises the defendant or to act as a threat to encourage prompt payment are doing so for an improper purpose.

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

The council's website states that "you will be issued with a summons for the amount you owe plus £70 costs". 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

The council's website effectively states that when a summons is issued, but before the Court hearing, it is possible to agree a payment arrangement but on the basis that the court will still be asked to grant a Liability Order (to secure the debt) implying that the payment plan will include the costs incurred in obtaining the Liability Order (£70.00 summons).

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).

Looking now just at general expenditure incurred in dealing with customer's queries in the context that all the £70.00 costs are applied on issue of the summons so that the same sum is incurred by customers whether or not their cases proceed to court. For those customers whose cases do not proceed, their costs are artificially inflated because the amount they're charged requires to be a lesser sum than the £70.00 total claimed to have been incurred by the council to obtain the order which is referable to regulation 34(7). The costs claims in connection with issuing the summons, which are relevant for these customers, are provided in regulation 34(5). The Tottenham judgment reinforces this in para 46, warning that a standard sum would require the right types of expenses being taken into account with due consideration given to the dangers of double-counting, or of artificial inflation and in para 50 saying that "what matters is that the costs that it does decide to claim are properly referable to the enforcement process". So, even if the work was not referable to the overall administration of council tax (which arguably it is) and considered referable to 'the right types of costs and expenses', the expenditure attributable to dealing with those customer's queries who subsequently pay to the authority the aggregate of the outstanding amount and costs before the court hearing would have paid an element of front loaded costs, i.e. which were not properly referable to the enforcement process.

It can particularly be said with regard to Mansfield that the summons costs explicitly encompass an element of front loaded expenditure because the council's website admits that the "£70.00 court costs we charge is based on a calculation of the cost of obtaining a liability order". Also in 2012/13 the proportion of the total costs charged at the summons stage was 60% but now the composition has changed so that the cost is weighted so that 100% of it is charged in respect of instituting the complaint.

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, 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 ten obvious additional defences that would be valid if no discretion is exercised prior to requesting the issue of a summons, expenditure incurred by the council outside the process of applying for and obtaining a liability order is included in those costs and a decision to charge costs can depend on whether or not a customer agrees to pay by direct debit or the council wants them to act as a penalty. 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 £70.00 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 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;

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 specifically by an amount equal to the reduction of the fee payable to HMCTS for each application;

8. decisions whether to apply/waive court costs or not to enforce being dependent on a customer agreeing to pay by direct debit is evidence that the enforcement process is exploited for an improper purpose, i.e. to encourage behaviour (see Regina v Highgate Justices ex parte Petrou)

9. 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

10. 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.

Yours sincerely,

Helen Barker

noreply, Mansfield District Council

FREEDOM OF INFORMATION REQUEST

Thank you for your email requesting information held by Mansfield District
Council.

Your request is being dealt with under the terms of the Freedom of
Information Act 2000 and will be answered within twenty working days.

Your privacy: We use your personal information such as name and address so
that we can comply with our legal obligations to respond to FOI requests.
For further details about the use of information about you, please see the
privacy notice on our website at
[1]http://www.mansfield.gov.uk/privacy.

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