Council tax payment allocation in accordance with R. v Miskin Lower Justices [1953]

The request was partially successful.

Dear Sevenoaks District Council,

The Council makes the statement quoted below from the link:
https://www.whatdotheyknow.com/request/c...

"In summary the principles established by the Courts are:

- if the amount of the payment identifies the debt, a specific instalment etc., then it must be allocated accordingly

- where the debtor states or implies that the payment should be allocated to a specific debt, then the creditor must abide by that statement

- where the debtor does not make any reference as to where the payment should be allocated then it is up to the creditor to make the choice.

Payments received that do not identify the debt and where the debtor does not make reference as to where the payment should be allocated are put towards the oldest debt - whether this be secured or unsecured."

The final two sentences in the above do not agree with the judgment in the case of R. v Miskin Lower Justices (see below link to the judgment):

http://s000.tinyupload.com/index.php?fil...

The judgment clarifies the position in cases where a creditor has to make a decision as to which account payment should be allocated when a debtor has one account more burdensome for him than another and his payment is unspecified

Clearly the final sentence if it were to agree with the judgment would be.....

[[ Where the debtor does not make any reference as to where the payment should be allocated then the creditor must allocate the payment to the account which it is most beneficial to the debtor to reduce. ]]

Q. Where did the council obtain the information regarding the appropriation of payments case law which conflicts with the judgment in R. v Miskin Lower Justices [1953]?

Yours faithfully,

S Staffordson

autoresponder@sevenoaks.gov.uk, Sevenoaks District Council

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FOI, Sevenoaks District Council

1 Attachment

Dear S Staffordson

 

Freedom of Information Request: 611 - 2019

 

Thank you for your request received by Sevenoaks District Council on 13
September 2019.

 

In relation to your enquiry, please find the Council’s response set out
below.

 

Your enquiry was:

 

Where did the council obtain the information regarding the appropriation
of payments case law which conflicts with the judgment in R. v Miskin
Lower Justices [1953]?

 

Our response:

 

The case you have stated essentially indicates it was reasonable to infer
that the debt was intended for an “original” debt where a person was
subject to imprisonment if it was not paid – in many cases that could be a
good reason for attributing the debt to the oldest debt (though not
always).

 

Please note that Sevenoaks District Council and Dartford Borough Council
run a joint team for the provision of Revenues and Benefits and the
response is on behalf of both councils.

 

show quoted sections

Dear FOI,

I will put my request another way.

Where did the council obtain the advice/authority that enabled it to determine that it would be appropriate for the council to allocate payment which did not match a current instalment to the oldest debt outstanding. For example, a lawyer, the council's monitoring officer, the Institute of Revenues Rating and Valuation (IRRV) 10 October 2002 Insight magazine http://s000.tinyupload.com/index.php?fil...

Or here?
https://www.whatdotheyknow.com/request/4...

Yours sincerely,

S Staffordson

autoresponder@sevenoaks.gov.uk, Sevenoaks District Council

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FOI, Sevenoaks District Council

1 Attachment

Good morning

 

Freedom of Information Request: 611 – 2019, further information

 

Thank you for your request received by Sevenoaks District Council on 14
October 2019.

 

In relation to your enquiry, please find the Council’s response set out
below.

 

Your enquiry was:

 

Where did the council obtain the advice/authority that enabled it to
determine that it would be appropriate for the council to allocate payment
which did not match a current instalment to the oldest debt outstanding.
For example, a lawyer, the council's monitoring officer, the Institute of
Revenues Rating and Valuation (IRRV) 10 October 2002 Insight magazine
[1]http://s000.tinyupload.com/index.php?fil...

Or here?

[2]https://www.whatdotheyknow.com/request/4...

 

Our response:

 

We do not hold that specific information.

 

show quoted sections

Dear Sevenoaks District Council,

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

I am writing to request an internal review of Sevenoaks District Council's handling of my FOI request 'Council tax payment allocation in accordance with R. v Miskin Lower Justices [1953]'.

When a decision is made with potentially legal implications the council is required to consult the Monitoring Officer and such procedures should be formally recorded. A decision that requires setting the parameters of a council tax payment processing system to automatically allocate non-specific payments to the oldest account rather than to the in-year account is one such decision.

If the proper legal process was followed when the decision was made then there will be a record of it comprising a background outlining the relevant legal requirements and risk assessment highlighting the degree to which the council would be exposed to legal challenge if not complied with. The following is an example of the kind of assessment that should have been documented.

https://democracy.npt.gov.uk/documents/s...

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

Yours faithfully,

S Staffordson

autoresponder@sevenoaks.gov.uk, Sevenoaks District Council

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Martin Goodman, Sevenoaks District Council

1 Attachment

Dear S Staffordson

 

As Monitoring Officer I have carried out a review of your Freedom of
Information Request.

 

Having investigated the matter, I am of the view that the process the
Council undertook to answer your request was sound.  Those handling your
request did not deviate from the adopted procedures and the reply was
timely, albeit without any information being provided to you.

 

As to the outcome of your request - that the Council did not hold the
information you asked for - this is correct.  The Council does not hold
information on who advised it where payments should be allocated and has
not taken specific advice on any particular case. 

 

If a payment is received which does not meet the exact instalment due and
there are other amounts due, the payment automatically is paid towards the
oldest debt. If a customer requests the payment against an amount due, the
Council complies with the customers wishes.

 

I trust you are satisfied with this response.  If you remain dissatisfied
you have the right to appeal to the Information Commissioners’ Office
(ICO) [1]http://www.ico.org.uk/complaints .

 

Kind regards

 

Martin Goodman

Head of Legal and Democratic Services | Monitoring Officer | Data
Protection Officer

Sevenoaks District Council | Council Offices | Argyle Road | Sevenoaks |
Kent | TN13 1HG

Tel: 01732 227000

DX 30006 SEVENOAKS

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Dear Martin Goodman,

Thank you for you response. You will probably not wish to take this into consideration but as you have appeared to approve the council's method of applying unspecified payments with no regard to established case authority you have virtually invited comment.

A customer having one liability more onerous for him than another must have his payment if it were unspecified carried to that account which it is most beneficial for him to reduce. A customer who would be caused the additional burden from recovery action being taken in respect of his in-year liability as a consequence of payment being applied to his arrears, would clearly have intended his payment to be appropriated to his in-year liability to avoid unnecessary additional costs etc. Evidence of an intent to appropriate would be provided in those particular circumstances to be an election to pay specifically on the current year's liability. A customer who made payment in an amount sufficient to prevent his in-year liability falling in arrears would have good cause to bring legal proceedings against the council if it were to allocate his payment to a previous year's charge (thus unnecessarily burdening him further) merely because it did not match the instalment amount.

In any event, I understand that a billing authority's duty, as a priority, is to maintain a customer's in-year account with payments received in respect of his liability, and the best chance of achieving that would be if the parameters in the Council Tax processing system were set so that any unspecified payments were applied to the current year's charge.

Yours sincerely,

S Staffordson

Dear Martin Goodman,

In anticipation of you not replying, I have decided against pursuing this. However, further to my email of 2 January 2020 my thoughts are that this issue should be put before the council's Monitoring Officer as it is his duty to ensure all decision making is lawful and the legal process described in that email should have been followed in arriving at the decision.

I understand that the software supplied to local authorities for the purpose of payment allocation has a parameter which can typically be set so that when a payment fails to match one of the rules it will, option 1, be applied to the in-year account, or option 2, be applied to the oldest years account. Therefore, it is within the council's control to maximise the frequency with which non-specific payments would be correctly applied i.e. to maintain the in-year account as a priority.

Regarding the Miskin case law, despite being decided in 1953, it is obviously relevant to Council Tax or there would unlikely be guidance tailored specifically for the benefit of Local Authorities. For example, Ipswich Council demonstrates its awareness of the case and other case law relevant to Council Tax liability in the following page exhibited presumably from a book entitled "Local Authority Revenues" https://www.whatdotheyknow.com/request/4...

The relevant passage summarises a billing authority's obligations regarding the allocation of payments where a customer has several accounts payable to the council in the context of R v Miskin Lower Justices and associated case law. The Institute of the Revenues Rating and Valuation (IRRV) has published similar in its 10 October 2002 Insight magazine https://tinyurl.com/y3hoyx9v

In respect of the council's statement; "if a payment is received which does not meet the exact instalment due...", there was no precedent set in the Miskin case based on payments matching the instalment amount of a particular year.

https://tinyurl.com/vk2pwhn (R v Miskin)

It is clear from the first paragraph of the judgment that the debtor (husband) did not once in any of the payments he made, make a payment matching an amount that he was required to under the terms of the maintenance/committal orders. The judge held that an appropriation was inferred from the circumstances to be the debt which it was most beneficial for the debtor to reduce (see quoted from the judgment).

"...the question whether the payments made by the husband should be appropriated to the original debt depended on the particular facts of the case. The husband would be likely to wish the payments to be utilized in discharge of the original debt..." (so that he would secure his release from the committal order).

As for the Council defending the practice of applying non-specified payment to the oldest year where a debt remains outstanding, the overwhelming evidence is that this does not accord with established case law.

Possibly the council has been influenced by the ruling in Devaynes v Noble 1816 merivale 529 (Clayton's Case). Clayton's Case is confined to cases where there is an unbroken account between the parties, or “one blended fund,” as in the case of a current account at a bank or between traders; it does not apply where there is no such account or fund, but merely distinct and separate debts. Snells Principles Of Equity's gives a definition in the document here: https://tinyurl.com/y3uzpd5n

A number of billing authorities wrongly rely on the Clayton Case ruling to justify allocating non-specific payment to the arrears because the effect of the rule is that in the absence of any express appropriation, each payment is impliedly appropriated to the earliest debt that is not statute-barred (payments are presumed to be appropriated to debts in the order in which the debts are incurred). They are of course misinformed because the rule does not apply to Council Tax as it consists of distinct insulated debts, between which a plain line of separation can be drawn (a bill is issued each year relating specifically to that year's liability).

Conveniently in the Clayton Case judgment the rules by which the application of indefinite payments are governed have been discussed. Clearly before any consideration is given as to the order in which the debts have arisen it must be asked, to which of the debts would the allocation be most beneficial to the debtor? (where the purpose for which a payment is made is unspecified it must be carried to that account which it is most beneficial to the debtor to reduce). Only if it was of no more benefit to the debtor which of the accounts payment was applied to could it be said that allocating non-matching payments to any arrears would be in accordance with established case law.

https://en.wikipedia.org/wiki/Devaynes_v... (Clayton's Case)

It is noteworthy that the Sri Lankan case, Ephraims v. Jansz (1895) 3 N.L.R. 142, similarly discussed the rules relating to the appropriation of payments in the context of the onerous nature of debt due on several accounts. The condition in the below quoted from the judgment could not be more relevant to the circumstances that are in issue with Council Tax liability:

https://www.lawnet.gov.lk/wp-content/upl... (Ephraims v. Jansz)

"If no such appropriation is made at the time of payment, the creditor must apply it to some claims which could be enforced at the time of payment and which at the moment is not in controversy."

Council Tax may be enforced (subject to payments being met) so a customer's in-year liability is not in controversy, providing his instalments are paid when due. An unspecified payment then, applying this principle, would have clearly been misappropriated if the council applied it to arrears so causing his in-year liability instalment to have not been met.

But regardless of whether the principle in the Sri Lankan case can be relied on, a customer having one liability more onerous for him than another must have his payment if it were unspecified carried to that account which it is most beneficial for him to reduce in line with other case authority mentioned.

The council's processing system applies payments in respect of the customer's implied intention but on a severely restricted basis (solely on the sum paid corresponding with an instalment amount). A payment matching a specific liability covers only one of several ways that the taxpayer's election may be implied. For example, case authority has consistently found that a debtor's intention may be indicated from the circumstances of the transaction (see Khandanpour v Chambers [2019] EWCA Civ 570 "Appropriation" from para 25). https://www.bailii.org/ew/cases/EWCA/Civ...

A debtor's payment pattern could indicate a debtor's intention to appropriate payment to a particular debt, so if a pattern had emerged of a customer's payment being made and accepted as credited to a particular debt then it would be inferred from the nature of the transaction, even if not expressed at the time by the customer, that he intended to ascribe it to that account. A customer having one liability more onerous for him than another must have his payment if it were unspecified carried to that account which it is most beneficial for him to reduce.

A customer who would be caused the additional burden from recovery action being taken in respect of his in-year liability as a consequence of payment being applied to his arrears, would clearly have intended his payment to be appropriated to his in-year liability to avoid unnecessary additional costs etc. Evidence of an intent to appropriate, although falling short of being express, would be provided in those particular circumstances to be an election to pay specifically on the current year's liability (the inference from the circumstances of a transaction is just as valid an election to pay specifically on one of several accounts as if his election were expressed).

A customer who made payment in an amount sufficient to prevent his in-year liability falling in arrears would have good cause to bring legal proceedings against the council if it were to allocate his payment to a previous year's charge (thus unnecessarily burdening him further) merely because it did not match the instalment amount. In any event, I understand that a billing authority's duty, as a priority, is to maintain a customer's in-year account with payments received in respect of his liability, so logically the frequency with which payment would be correctly applied would be maximised (under automated conditions) if the parameters in the Council Tax processing system were set so that any unspecified payments were applied to the current year's charge.

P.S. Your Monitoring Officer might wish to look at this from the following perspective:

Let's say a Customer has an outstanding balance of £75.00 secured by a Magistrates' court Liability Order from a previous year's charge. This gives councils the power to use various enforcement methods to collect the debt and adds costs to the arrears. The standard costs rubber stamped by the court are in the sum of £60.00 so the total amount owing the council for that year's charge has increased to £135.00. The customer now has his in-year Council Tax obligation to meet as well as the amount secured by a court order from the previous year's charge.

The customer's in-year payments are set at £121.95 for the first instalment and £120.00 for the remaining nine (£1,201.95 in total). The customer makes his first payment of £122.00 but because the council's system applies payments that do not exactly match to the oldest debt, his in-year Council Tax obligations have been detected by the computer system to have not been met even though the payment was made in sufficient an amount to prevent his in-year liability falling in arrears. Although Council Tax liability consists of distinct insulated debts, between which a plain line of separation can be drawn, the benefit to the council is the same (£122.00) whether payment is applied to the in-year account or arrears so there is no legitimate advantage for the council nor justification in engineering a further burden for the customer in respect of his in-year liability. The previous year's debt has already been secured with a court order which has no time limit restricting its use.

It is therefore reasonable to suspect that the council allocates non-matching payments to the arrears thus imposing an additional £60.00 standard costs in respect of the in-year engineered non-payment for a non-legitimate reason. But there is no theoretical advantage to the council in respect of the costs it claims because the law only entitles it to claim the actual expenditure it incurs. It would therefore be self defeating if the council were to go about obtaining court orders merely to benefit from the application if its costs claim was genuine and not inflated. Another possible motive would be to punish the customer, but this is troublesome for the council because it is making use of the Magistrates' court unnecessarily and in so doing burdening the customer with a further £60.00 debt. This by definition is penalising the customer with imposed costs which is impermissible according to established case authority. It was held on judicial review of a licensing case R v Highgate Justices ex parte Petrou [1954] 1 ALL ER 406 that costs should not exceed the proper costs incurred and should not be a penalty.

In the more recent case it was held that the Magistrates were bound to decide the matter of costs in accordance with the Council Tax (Administration and Enforcement) Regulations 1992 (the court needs to be satisfied that it was reasonable for the council to incur them) i.e. they would not reasonably have been incurred if it was not reasonable for the council to take steps to enforce payment (see paras 34 and 51 of R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252) http://www.bailii.org/ew/cases/EWHC/Admi...

In the aforementioned scenario the council would have impermissibly obtained a court order to enforce the misappropriated £122.00 element of the liability TWICE. This is because the payment which was intended to be applied to the in-year liability was misapplied to the arrears.

Each year's liability is a distinct debt so if the council has a secured debt in respect of one year's charge it cannot use the same court order to enforce payment if a customer defaults in a subsequent year (another order must be obtained from the court). However, the court order securing £135.00 debt from a previous year was effectively used to collect the sum of £122.00 which was actually paid in respect of the in-year liability (the amount secured by the previous court order reduced to £13.00). The customer's in-year liability did not only remain unchanged as a result of the misapplied £122.00 payment it actually increased by £60.00 because of the court costs attributable to the council's further application to the Magistrates' court (the in-year liability increased to £1,261.95 which was secured by a fresh court order).

The upshot of all this is that the customer has outstanding liability relating to two separate debts, each independently subject to enforcement by the various oppressive methods enabled by the court order. The customer's overall indebtedness arising from the misappropriated payment has immediately increased by £60.00 because of unnecessary court costs. In engineering the default, the council has clearly been shown to have unlawfully used an order securing a previous year's debt to enforce payment from the in-year liability which was perversely the cause of the Council Tax processing system triggering recovery in respect of the in-year liability (the same £122.00 amount has been subject to enforcement by two separate court orders).

Yours sincerely,

S Staffordson