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

The request was partially successful.

Dear Cheshire West and Chester Council,

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

"The Council's Capita system allocates Council Tax payments as follows:

System will recognise set payments and allocate appropriately i.e Payments of £10 will be allocated to an instalment or arrangement payment of £10.

If payment is not a set instalment or arrangement amount it will allocate to the oldest debt."

The council's statement above does 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 West, Cheshire West and Chester Council

Dear S Staffordson

Thank you for your email dated 19 September 2019. This does not constitute a valid FOI request under Section 8(1)(c) of the FOIA because it is not a request for recorded information held by the Council.

Under Section 16 of the FOIA the council has a duty to provide advice and assistance, therefore if you would like to contact the council tax department directly as routine business, please email [email address].

Yours sincerely

Disclosures Team
Customer Relations and Information
Cheshire West and Chester Council

Tel: 0300 123 8 123
Email: [email address]
Location: Cheshire West and Chester Council, 4 Civic Way, Ellesmere Port CH65 0BE
Visit: cheshirewestandchester.gov.uk

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Dear FOI West,

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.

I therefore consider my request is a valid request under freedom of information legislation.

Yours sincerely,

S Staffordson

FOI West, Cheshire West and Chester Council

Dear S Staffordson

The Council maintains that your request is not valid. However, under advice and assistance we can confirm that the Council's payment allocation rules agree with the judgement referred to as if the customer states the specific liability the amount relates to then this is where the payment will be allocated to. More information about the Council's decision-making process can be found in its Constitution, available at: www.cheshirewestandchester.gov.uk

Yours sincerely

Disclosures Team
Customer Relations and Information
Cheshire West and Chester Council

Tel: 0300 123 8 123
Email: [email address]
Location: Cheshire West and Chester Council, 4 Civic Way, Ellesmere Port CH65 0BE
Visit: cheshirewestandchester.gov.uk

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Dear Cheshire West and Chester Council,

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

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

The Council has not supported its decision why it considers that my request is not valid, neither does the response (under advice and assistance) provide an adequate reason why it asserts that the Council's payment allocation rules agree with the judgement referred to.

The judgment (R v Miskin Lower Justices) 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. Essentially what can be taken from the judgment is that where a debtor makes no 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.

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

Dear FOI West,

Can you please give a rough idea when I can expect a response to my review request?

Yours sincerely,

S Staffordson

FOI West, Cheshire West and Chester Council

Dear Mr Staffordson

Thank you for your email dated 22 December 2019. I apologise for the delay in a response being provided. Your case is currently being a reviewed and a response will be sent in the New Year.

Yours sincerely

Disclosures Team
Customer Relations and Information
Cheshire West and Chester Council

Tel: 0300 123 8 123
Email: [email address]
Location: Cheshire West and Chester Council, 4 Civic Way, Ellesmere Port CH65 0BE
Visit: cheshirewestandchester.gov.uk

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NOREPLYcustomerrelations, Cheshire West and Chester Council

Dear S Staffordson

I am writing to update you on the outcome of your review request. Having reviewed your correspondence I can confirm that I am of the view that your request remains invalid as it is not asking for specific recorded information, rather it is a question about how a decision relating to the allocation of debt repayments has been made: "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]?". Within your request you suggest that the Council's approach conflicts with a 1953 judgment. The internal review process does not investigate complaints of maladministration and, if you believe there has been fault by the Council in its debt collection, you must raise a separate complaint.

Despite your request being invalid I have consulted the Council tax team and legal services to ascertain what information may be held that could answer your question. The answer is that no information is held.

I note that you have previously been provided with advice and assistance about the Council's decision-making process. You may also be interested in the Council's Corporate Debt policy published on the website -

https://www.cheshirewestandchester.gov.u...

Within that point 5.2 states

"The first call on any monies repaid by customers with multiple debts will be allocated to those debts which are the oldest. The Limitation Act 1980 allows 6 years to pursue most debts."

I trust that you find this helpful.

If you are dissatisfied with the outcome of the Review, or you remain dissatisfied with the way the Council conducted the original request or the Review, you may complain to the Information Commissioner at:

The Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Tel: 0856 30 60 60 or 01625 54 57 45
Website: www.ico.org.uk

Yours sincerely

Miriam Wallace
Customer Relations Manager
Cheshire West and Chester Council

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Dear NOREPLYcustomerrelations,

Thank you for your response. Please see the following which is relevant to the council's opinion that my request is invalid.

https://ico.org.uk/media/for-organisatio... (see under "Contentious criticisms and allegations" para 25)

Regarding the following stated in the Council's Corporate Debt policy I suggest this is brought to the attention of the council's Monitoring Officer immediately.

"5.2 The first call on any monies repaid by customers with multiple debts will be allocated to those debts which are the oldest. The Limitation Act 1980 allows 6 years to pursue most debts."

Yours sincerely,

S Staffordson

NOREPLYcustomerrelations, Cheshire West and Chester Council

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Dear Cheshire West and Chester Council,

Thank you for your response. Please see the following which is relevant to the council's opinion that my request is invalid.

https://ico.org.uk/media/for-organisatio... (see under "Contentious criticisms and allegations" para 25)

Regarding the following stated in the Council's Corporate Debt policy I suggest this is brought to the attention of the council's Monitoring Officer immediately.

"5.2 The first call on any monies repaid by customers with multiple debts will be allocated to those debts which are the oldest. The Limitation Act 1980 allows 6 years to pursue most debts."

Yours faithfully,

S Staffordson

Dear Cheshire West and Chester Council,

In anticipation of you not responding, I have decided against pursuing this. However, 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...

So 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 above 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 payment is not a set instalment or arrangement amount...", 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 £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