High Court ruling and Ombudsman's difference of opinion

Roedd y cais yn rhannol lwyddiannus.

Seb Tarantino (Ataliwyd y cyfrif)

Dear The Local Government and Social Care Ombudsman,

In reference to the Ombudsman's final decision in a complaint concerning Trafford Council featuring council tax court applications for orders of liability

https://www.lgo.org.uk/decisions/benefit...

The High Court has ruled that the sum which is included as standard on Council Tax summonses in respect of costs is merely additional information to what is statutorily required on a summons under rule 98(2) of the Magistrates Court Rules. The amount stated is to inform the recipient of the amount of costs which will be claimed by the council if it proceeds to make the application at court for a liability order. The sum is not incurred until (and if) the court grants the costs which may be a different amount to that which is included on the summons.

https://www.scribd.com/document/37563681...

Why therefore does it state in paragraph 9 of the Decision that "The summons cost was incurred the day it was issued"

Yours faithfully,

Seb Tarantino

FOI Officer,

1 Atodiad

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[2]another test with borders

 

References

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FOI Officer,

3 Atodiad

Dear Seb Tarantino

 

Please find attached the response to your request.

 

Yours faithfully

 

Alison Benson

 

 

 

Alison Benson I Information and Records Management Officer

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Listen - Understand - Communicate - Learn

 

Direct: 0330 403 4658 | Mobile: not applicable

www.lgo.org.uk

 

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Seb Tarantino (Ataliwyd y cyfrif)

Dear The Local Government and Social Care Ombudsman,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of The Local Government and Social Care Ombudsman's handling of my FOI request 'High Court ruling and Ombudsman's difference of opinion'.

Thank you for your reply in which you state the following:

"I am unable to provide further information about the summons cost. Although the public do have rights to see information held by public bodies under the Freedom of Information Act, this Act (section 44(1)(a)) does not override any restriction on the release of information covered by an earlier law.

Such a restriction applies to the Ombudsman’s complaint files. Under the Local Government Act 1974 (section 32(2)), the Ombudsman is not permitted to disclose any information obtained in the course of, or for the purposes of, the investigation of a complaint, unless he considers it is necessary for the purposes of the investigation (or for other very limited reasons mostly related to legal proceedings).

Providing such information to you is not necessary for the purposes of the investigation and therefore I cannot provide any further information to you."

The restriction you have relied on to withhold the requested information applies to the contents of the Ombudsman’s complaint files. I am asking for information which the Ombudsman holds outside the contents of a complaint file as it unquestionably must have been held in order for the case worker to complete his investigations.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/h...

Yours faithfully,

Seb Tarantino

FOI Officer,

1 Atodiad

This is to acknowledge receipt of your email.  If you are making a request
for information, you should get an acknowledgement from us within the next
2-3 days with a reference number and a date by which we will respond to
your request. Please note, however, that this address is only for use in
relation to requests for information made under the Freedom of Information
Act and subject access requests made under the Data Protection Act. If
your email is in relation to a new complaint please follow this link to a
[1]complaint form or call 0300 061 0614 to speak to one of our Advisers,
as the FOI Officer cannot deal with your complaint.

 

[2]another test with borders

 

References

Visible links
1. http://www.lgo.org.uk/forms/ShowForm.asp...

FOI Officer,

This is to acknowledge receipt of your request for a review of the handling of your information request. This will be considered by the Director of Investigation, Karen Sykes. We will aim to respond within 20 working days (which would be 21 April 2018, or, if unable to meet this target, we will write to you again explaining why.”

Alison Benson I Information and Records Management Officer

Listen - Understand - Communicate - Learn

Direct: 0330 403 4734 | Mobile: not applicable
www.lgo.org.uk

dangos adrannau a ddyfynnir

FOI Officer,

Dear Mr Tarantino

It has come to my attention that the date I provided for the completion of your internal review as inaccurate. Your request for review was received on 24 April 2017, and therefore the target date is 23 May 2018.

I apologise for this inaccuracy.

Yours sincerely

Alison Benson I Information and Records Management Officer

Listen - Understand - Communicate - Learn

Direct: 0330 403 4734 | Mobile: not applicable
www.lgo.org.uk

dangos adrannau a ddyfynnir

Trish Farman,

2 Atodiad

Dear Mr Tarantino

 

Please find response letter attached.

 

Your sincerely

 

Trish Farman I Executive Assistant

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Listen - Understand - Communicate - Learn

 

 

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Seb Tarantino (Ataliwyd y cyfrif)

Dear Trish Farman,

Thank you for your decision letter of 16 May 2018 in which the following was included:

"The only other place where information about summons costs might be found is our internal casework guidance for staff. I have looked at this internal guidance. There is nothing about when summons costs are actually incurred and no reference to the court case you cite. For information, we do not consider summons costs themselves as they are outside our jurisdiction (under Schedule 5.1 of the Local Government Act 1974) as they are considered as part of court proceedings. We do not hold any information outside the complaints file to disclose to you."

The Ombudsman clearly does not hold the information either inside or outside the complaints file and the admission that the Ombudsman does not consider summons costs themselves as they are outside his jurisdiction suggests that the statement was an assumption (i.e. "the summons cost was incurred the day it was issued"). However, I have some comments regarding the matter which you may or may not want to note.

Regulation 34(5) of the Council Tax (Administration & Enforcement) Regulations 1992 makes provision for an out of court settlement (the application does not proceed if the sum of costs which the Billing Authority are to apply for at the Magistrates' court hearing are paid or tendered beforehand). As a matter of interest, if a court had the opportunity to adjudicate on the matter there would be every reason for it to find that the Statutory Instrument in respect of regulation 34(5) was ultra vires the enabling act (Local Government Finance Act 1992). Schedule 4 of the enabling act almost certainly does not make provision for regulation 34(5) to be enacted in its current form. This would explain why proceedings in Council Tax Liability Order cases can not properly follow due process.

However, even in the way it is enacted, regulation 34(5) does not permit any costs to be added to the customer's account at the summons issuing stage. Any amount of costs stated on the summons merely informs the debtor of the amount of costs that will be applied for at the hearing.

The process of issuing/authorising the summons (i.e. Magistrate etc. signing the complaint) merely authorises the council to serve the summons on the defendant. The application for the liability order is not made until and if the council does so on the designated date of the liability hearing at the Magistrates' court when another judicial decision is made (the summons issue is the initial and separate judicial decision) whether to grant a Liability Order and award costs, both in respect of the summons and potentially any additional costs (Liability Order costs).

The judge in the High Court case linked to in my request made a ruling that it was not unlawful to include the amount of costs that would be requested on the summons should the council proceed to make the application at court for a Liability Order. That is not the same as declaring it lawful to add the sum of costs to the customer's account when the summons is issued (before the court grants an order).

Yours sincerely,

Seb Tarantino

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