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

We're waiting for S Staffordson to read a recent response and update the status.

Dear Gosport Borough Council,

The Council makes the statement quoted below from the link:
https://www.lgo.org.uk/decisions/benefit...

"the Council explained that following its normal policy it allocated Mr A’s £20 payments to his oldest debt and that it had done so in the absence of any instruction from him as to what the payments were for, because the payments did not match the instalments due for the 2017/2018 bill....

....The Council quoted from various legal cases and summarised from them that if a debtor states or implies that payment should be made to a specific debt, or the amount of the payment identifies the debt, then the creditor must allocate the payments to that debt. "

The council's statements 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 council's statement, 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

FOI Enquiries, Gosport Borough Council

Thank you for your email that was received in the FOI email box, you will
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Council Tax, Gosport Borough Council

Good morning,

 

Freedom of Information Act 2000 - Request for Information

GBC Ref: FOI128FS

 

Thank you for your request for information dated 14^th September 2019,
this is currently being dealt with in accordance with the legislation and
the information you have requested will be sent to you within 20 working
days (7^th October 2019).

 

In the meantime if I can be of further assistance please do not hesitate
to contact me.

 

 

Many thanks

 

Gemma Hanham

FOI Co-ordinator (Council Tax, Finance)

Gosport Borough Council

[1][email address]

02392 545470

 

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Dear Council Tax,

Response to this request is delayed. By law, Gosport Borough Council should normally have responded promptly and by 11 October 2019.

Yours sincerely,

S Staffordson

Council Tax, Gosport Borough Council

 
Thank you for your email which has been passed to the appropriate team. We
will aim to respond to your enquiry within 10 working days.
 
For general advice about council tax please refer to our website at 
[1]www.gosport.gov.uk
 
The Local Taxation Section opening hours are:
 
Monday – Friday 9.00 am until 5.00 pm.
 
If you have a Freedom of Information request please redirect to the
following email address – [2][email address]  Any statutory timeframe
will not commence until the request is received at this address.
 
 
 

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Council Tax, Gosport Borough Council

Good afternoon,

 

Freedom of Information Act 2000 - Request for Information

GBC Ref: FOI128FS

                  

Thank you for your information request dated (14^th September 2019).

 

Please find attached the information you have requested.

 

Dear Mr/Ms Staffordson,

 

Reference Freedom of Information Request –  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)?

The council did not obtain information which conflicts with the judgment
in R v Miskin Lower Justices Ex Parte Young.

 

Please contact me again if you require any further assistance on this
matter and I will do my best to provide relevant help and advice.

 

If you are not content with the outcome of your request, you have the
right to apply directly to the Information Commissioner for a decision.
The Information Commissioner can be contacted at:  Information
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF; or telephone: 08456 30 60 60 or 01625 54 57 45; or at
[1]www.ico.gov.uk  There is no charge for making an appeal.  The Council
does not provide an internal review or complaints procedure relating to
the handling of requests for information.

 

 

Dear Mr/Ms Staffordson,

 

Reference Freedom of Information Request –  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)?

The council did not obtain information which conflicts with the judgment
in R v Miskin Lower Justices Ex Parte Young.

 

 

 

Many Thanks

 

Gemma Hanham

Senior Local Taxation Officer

Gosport Borough Council

Tel No: 02392 545470

Email: [email address]

 

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Council Tax, Gosport Borough Council

Council Tax would like to recall the message, "FOI128FS".

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Unless you are the named addressee (or authorised to receive it for the addressee) you may not copy or use it, or disclose it to anyone else.
If you have received this transmission in error please notify the sender immediately. All GCSx traffic may be subject to recording and/or monitoring in accordance with relevant legislation" This email has been scanned for content and viruses.

Council Tax, Gosport Borough Council

Good afternoon,

 

Freedom of Information Act 2000 - Request for Information

GBC Ref: FOI128FS

                  

Thank you for your information request dated (14^th September 2019).

 

Please find attached the information you have requested.

 

Dear Mr/Ms Staffordson,

 

Reference Freedom of Information Request –  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)?

The council did not obtain information which conflicts with the judgment
in R v Miskin Lower Justices Ex Parte Young.

 

Please contact me again if you require any further assistance on this
matter and I will do my best to provide relevant help and advice.

 

If you are not content with the outcome of your request, you have the
right to apply directly to the Information Commissioner for a decision.
The Information Commissioner can be contacted at:  Information
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF; or telephone: 08456 30 60 60 or 01625 54 57 45; or at
[1]www.ico.gov.uk  There is no charge for making an appeal.  The Council
does not provide an internal review or complaints procedure relating to
the handling of requests for information.

 

 

Dear Mr/Ms Staffordson,

 

Reference Freedom of Information Request –  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)?

The council did not obtain information which conflicts with the judgment
in R v Miskin Lower Justices Ex Parte Young.

 

 

 

Many Thanks

 

Gemma Hanham

FOI Coordinator

Gosport Borough Council

Tel No: 02392 545470

Email: [email address]

 

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Council Tax, Gosport Borough Council

Good afternoon,

 

Freedom of Information Act 2000 - Request for Information

GBC Ref: FOI128FS

                  

Thank you for your information request dated (14^th September 2019).

 

Please find attached the information you have requested.

 

Dear Mr/Ms Staffordson,

 

Reference Freedom of Information Request –  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)?

The council did not obtain information which conflicts with the judgment
in R v Miskin Lower Justices Ex Parte Young.

 

Please contact me again if you require any further assistance on this
matter and I will do my best to provide relevant help and advice.

 

If you are not content with the outcome of your request, you have the
right to apply directly to the Information Commissioner for a decision.
The Information Commissioner can be contacted at:  Information
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF; or telephone: 08456 30 60 60 or 01625 54 57 45; or at
[1]www.ico.gov.uk  There is no charge for making an appeal.  The Council
does not provide an internal review or complaints procedure relating to
the handling of requests for information.

 

Many Thanks

 

Gemma Hanham

FOI Coordinator

Gosport Borough Council

Tel No: 02392 545470

Email: [email address]

 

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Dear Council Tax,

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

Council Tax, Gosport Borough Council

 
Thank you for your email which has been passed to the appropriate team. We
will aim to respond to your enquiry within 10 working days.
 
For general advice about council tax please refer to our website at 
[1]www.gosport.gov.uk
 
The Local Taxation Section opening hours are:
 
Monday – Friday 9.00 am until 5.00 pm.
 
If you have a Freedom of Information request please redirect to the
following email address – [2][email address]  Any statutory timeframe
will not commence until the request is received at this address.
 
 
 

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Council Tax, Gosport Borough Council

Good morning,

 

Freedom of Information Act 2000 - Request for Information

 

GBC Ref: FOI128FS

 

 

Thank you for your response dated 14^th October 2019

 

Please find attached the information you have requested.

 

We don’t hold that information :

 

The information you have requested is not available.

 

 

Please contact me again if you require any further assistance on this 
matter and I will do my best to provide relevant help and advice.

 

If you are not content with the outcome of your request, you have the 
right to apply directly to the Information Commissioner for a decision.

The Information Commissioner can be contacted at:  Information 
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire,
SK9  5AF; or telephone: 08456 30 60 60 or 01625 54 57 45; or at 
[1][1]www.ico.gov.uk  There is no charge for making an appeal.  The
Council  does not provide an internal review or complaints procedure
relating to  the handling of requests for information.

 

 

Many thanks

 

Gemma Hanham

FOI Co-ordinator (Council Tax, Finance)

Gosport Borough Council

[2][email address]

02392 545470

 

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Dear Council Tax,

I would have expected that the information would be held because 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.

Yours sincerely,

S Staffordson

Council Tax, Gosport Borough Council

 
Thank you for your email which has been passed to the appropriate team. We
will aim to respond to your enquiry within 10 working days.
 
For general advice about council tax please refer to our website at 
[1]www.gosport.gov.uk
 
The Local Taxation Section opening hours are:
 
Monday – Friday 9.00 am until 5.00 pm.
 
If you have a Freedom of Information request please redirect to the
following email address – [2][email address]  Any statutory timeframe
will not commence until the request is received at this address.
 
 
 

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Dear Gosport Borough Council,

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

I am writing to request an internal review of Gosport Borough 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

FOI Enquiries, Gosport Borough Council

Thank you for your email that was received in the FOI email box, you will
receive a response to this in the next 10 days

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Young, Lisa, Gosport Borough Council

Dear S Staffordson

An FOI Internal Review has been carried out by Mr David Eland, Data Protection Officer in accordance with the Councils FOI internal review scheme and concludes:
Your question 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?”

The response remains unaltered - “We don’t hold that information :
The information you have requested is not available.”

We do not have a record of discussions regarding the setting of the parameters of our council tax payment processing system, the setting of automatically allocating non-specific payments to the oldest account rather than to the in-year account been one such parameter.

If you are not content with the outcome of your request, you have the right to apply directly to the Information Commissioner for a decision.
The Information commissioner can be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF; or telephone: 08456 30 60 60 or 01625 54 57 45; or at www.ico.org.uk There is no charge for making an appeal.

Kind regards

Lisa

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Dear Young, Lisa,

Thank you for your response, but further to my email of 3 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 should have been followed in arriving at the decision.

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. 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 respect of the council's statement specifically regarding R v Miskin; "Thus, if the amount of the payment identifies the debt, then it must be allocated to that debt.", 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).

More appropriately then (to the case authority) is the council's agreement that the inference from the circumstances of a transaction can be just as valid as an election by the debtor to pay specifically on one of several accounts as if his election were expressed, i.e,:

"The Council quoted from various legal cases and summarised from them that if a debtor states or implies that payment should be made to a specific debt, or the amount of the payment identifies the debt, then the creditor must allocate the payments to that debt."

In furtherance to this, the council's processing system applies payments in respect of the customer's implied intention on a severely restricted basis (solely if the sum paid corresponds with an instalment amount). A payment matching a specific liability is only one of a number of 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 would be provided in those particular circumstances to be an election to pay specifically on the current year's liability.

Yours sincerely,

S Staffordson

Young, Lisa, Gosport Borough Council

I am away from my desk and can be cotacted if urgent on  07921556483

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Dear Gosport Borough Council,

In anticipation of you not responding, I have decided against pursuing this. However, your Monitoring Officer, if he has been referred the matter, might wish to consider these additional comments:

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.

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.

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).

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 £70.00 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 £90.00 so the total amount owing the council for that year's charge has increased to £160.00. 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 £90.00 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 £90.00 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 £160.00 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 £38.00). The customer's in-year liability did not only remain unchanged as a result of the misapplied £122.00 payment it actually increased by £90.00 because of the court costs attributable to the council's further application to the Magistrates' court (the in-year liability increased to £1,291.95 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 £90.00 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 faithfully,

S Staffordson

FOI Enquiries, Gosport Borough Council

Thank you for your email that was received in the FOI email box, you will
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