We don't know whether the most recent response to this request contains information or not – if you are S Staffordson please sign in and let everyone know.

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 Milton Keynes Council,

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

"The Council’s software for the administration of Council Tax has 26 rules built in that it will use to match a payment to the correct liability. If the payment does not match to any of those rules then it will by default be set against 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

Freedom of Information Act, Milton Keynes Council

Dear Requestor

FREEDOM OF INFORMATION ACT 2000 - INFORMATION REQUEST - INTERNAL REFERENCE 305174

I acknowledge your request for information.

Your request is being considered and you will receive the information requested within the statutory timescale of 20 working days, as defined by the Freedom of Information Act 2000, subject to the information not being exempt or containing reference to a third party.

Please be aware that the Act defines a number of exemptions which may prevent release of the information you have requested. In the event that an exemption category applies information may not be released. You will be informed if this is the case, including your rights of appeal.

If the information you request contains reference to a third party then they may be consulted prior to a decision being taken on whether or not to release the information to you. You will be informed if this is the case.

Best Regards
Freedom of Information Team
[email address]

show quoted sections

Freedom of Information Act, Milton Keynes Council

Dear Requestor

FREEDOM OF INFORMATION ACT 2000 - INFORMATION REQUEST - INTERNAL REFERENCE 305174

Your request for information has now been considered and the information requested is below.

If you have a complaint about the handling of your request then please contact me within the next 40 working days and I’ll arrange for an internal review which will be considered as part of Stage 2 of the Council’s complaints procedure.

You also have a right of appeal to the Information Commissioner at:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Tel: 0303 123 1113
www.ico.org.uk

Best Regards
Freedom of Information Team
[email address]

show quoted sections

Dear Freedom of Information Act,

Thank you for your reply but I have to disagree with the council’s reasons for holding the view that the creditor has the right to determine how payments are allocated where the debtor does not expressly elect the account.

Reason 1 quoted below:

'The Judgment suggests that where the debtor does not request how the payment should be applied, the creditor is bound to appropriate “the whole of such payment to that part of the total amount due which first accrued” i.e. the oldest debt.'

I understand that the authority in the Miskin case generally clarifies that where an amount obviously relates to a specific liability, it would be an unwarranted assumption to allocate the payment elsewhere thus payment must be carried to that account (in the present case to avoid prison) which is most beneficial to the debtor to reduce.

The case concerned maintenance payments in R v Miskin, so the Judgment's reference to the allocation of monies to the amount first accruing specifically referred to legislation governing the collection of arrears under a maintenance order. For context see the following commons web-page (Maintenance Orders Bill)

https://api.parliament.uk/historic-hansa...

Reason 2 quoted below:

'There are further comments that it was likely in that case the debtor would have wanted those payments to be “utilized in discharge of the original debt” and that that decision would depend on the particular facts of the case.'

In the Judgment, Pearson J inferred an appropriation from the particular circumstances, including that the debtor “would be likely to wish these payments to be utilized in discharge of the original debt so that he would secure his release from the committal order”. The inference that the debtor would likely have wished his payments to be utilized in discharge of the original debt was evidently because it was the debt which it was most beneficial to him to reduce. It was merely his circumstances that meant discharging the earliest debt was most beneficial to him. Thus in another case (perhaps not concerning Maintenance Orders) if those circumstances meant that discharging the later debt was most beneficial, then by the same reasoning a judge would have inferred an appropriation on the basis that the debtor would have likely wished his payments to have discharged the more recent debt.

Yours sincerely,

S Staffordson

Freedom of Information Act, Milton Keynes Council

Dear Requestor

Thank you for your below comments, which have been passed to the Revenues team.

Best Regards
Laura Ward
Corporate Information Officer
01908 254 217
Milton Keynes Council | Civic | 1 Saxon Gate East | Milton Keynes | MK9 3EJ
www.milton-keynes.gov.uk

show quoted sections

Dear Freedom of Information Act,

Do you have a reviewed response to this request now that the Revenues team has had a chance to reconsider it?

Yours sincerely,

S Staffordson

Freedom of Information Act, Milton Keynes Council

Dear Requestor

As previously advised your comments have been passed on and noted. The request is not being reconsidered.

Best Regards
Freedom of Information Team

show quoted sections

Dear Milton Keynes Council,

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

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

I allowed myself to be side tracked by the council's response which did not actually deal with the request but rather gave its opposing opinion about why it considered its approach to payment allocation was lawful.

What I actually asked was where did the council obtain the information regarding the appropriation of payments case law?

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...

P.S. 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 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.

For example, 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.

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

Freedom of Information Act, Milton Keynes Council

Dear Requestor

FREEDOM OF INFORMATION ACT 2000 - INTERNAL REVIEW

I acknowledge your request for an internal review in relation to the response you received to your Freedom of Information request.

You will receive a response in no later than 20 working days however we will of course respond as soon as possible.

Best Regards
Freedom of Information Team

show quoted sections

Hulatt, Katrina, Milton Keynes Council

Dear Sirs, I have reviewed this matter and it seems that the query is the
below;

 

Does our previous statement that "The Council’s software for the
administration of Council Tax has 26 rules built in that it will use to
match a payment to the correct liability. If the payment does not match to
any of those rules then it will by default be set against the oldest debt"
conflict with R. v Miskin Lower Justices [1953]?

 

This is an FOI process and I am content that all that has been requested
has been properly considered. In fact it seems that this is not an FOI
review as such, but a legal question as to the Council’s opinion on
compatibility with case law.

 

I am content that the system that Council Tax employ does not prejudice an
individual and therefore the mischief as outlined in the Miskin case is
avoided. Council Tax clearly allow the allocation of payments to whatever
year is indicated by the customer. It is only where there is no
indication, that this payment is added to the oldest debt, but clearly a
determination has been made to move this payment if requested.

 

Kind regards

 

 

Kat

 

 

Katrina Hulatt

Acting Head of Legal Services

Milton Keynes Council  | Civic Offices | 1 Saxon Gate East | Central
Milton Keynes | MK9 3EJ

[1]www.milton-keynes.gov.uk

 

 

Visit the Milton Keynes Council web site at https://www.milton-keynes.gov.uk

Any personal data will be processed in line with the Data Protection legislation, further details at https://www.milton-keynes.gov.uk/privacy

Please consider the environment and don't print this email unless you really need to

**** This email and any attachments hereto are strictly confidential and intended solely for the addressee. It may contain information which is privileged. If you are not the intended addressee, you must not disclose, forward, copy or take any action in reliance of this email or attachments. If you have received this email in error, please delete it and notify us as soon as possible.

The anti-virus software used by Milton Keynes Council is updated regularly in an effort to minimise the possibility of viruses infecting our systems. However, you should be aware that there is no absolute guarantee that any files attached to this email are virus free.****

References

Visible links
1. http://www.milton-keynes.gov.uk/

Dear Hulatt, Katrina,

The council has dealt with this matter without any regard for the review grounds. However, I have decided against pursuing this, but further to my email of 10 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 matched are allocated accordingly...", 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 sincerely,

S Staffordson

Freedom of Information Act, Milton Keynes Council

Dear Sir

Thank you for your comments which I have passed to MKC's monitoring officer as requested.

Best Regards
Freedom of Information Team

show quoted sections

We don't know whether the most recent response to this request contains information or not – if you are S Staffordson please sign in and let everyone know.