Dear Burnley Borough Council,

A council taxpayer who owes more than just the current year's liability runs the risk of incurring additional recovery costs through a further application for a liability order if payments which are intended for the current year's liability are allocated by the council's computer to the previous year's liability. This would most likely happen where a non specific payment is made and the computer software is set to automatically allocate these payments to the oldest year's debt.

Councils computer systems have the necessary flexibility to be set to allow non specific payments to be allocated to the arrears or the current year's liability.

I understand that the majority of billing authorities have their computer software set to ensure that their customers are not subject to unnecessary recovery action, additional costs or hardship, i.e. so non specific payments are allocated to the current year's liability.

How does Burnley Council have its computer software set to deal with non specific payments. Current or oldest year's liability?

Yours faithfully,

Gwyn Worth

Dear Mollie Wiggin,

Thank you for stating that 'if you have previous year's arrears on your account and you do not pay the exact amount of the current year's instalment the payment will be allocated to your arrears'.

Would you please confirm whether or not any measures are in place to check that allocating an unmatched payment to the oldest debt in these circumstances would have the consequences of putting the current year's liability also in arrears, and if so, in accordance with R. v Miskin Lower Justices [1953] 1 Q.B. 533, whether the payment would be moved in respect of the current year's account to avoid unnecessary recovery action, additional costs etc.?

Yours sincerely,

Gwyn Worth

Dear Claudia Wilcock,

Thank you for stating that unmatched payments will be posted to the oldest debt first.

Would you please confirm whether or not any measures are in place to check that allocating an unmatched payment to the oldest debt in these circumstances (other than relying on customer contact) would have the consequences of putting the current year's liability also in arrears, and if so, in accordance with R. v Miskin Lower Justices [1953] 1 Q.B. 533, whether the payment would be moved in respect of the current year's account to avoid unnecessary recovery action, additional costs etc.?

Yours sincerely,

Gwyn Worth

Dear Claudia Wilcock,

I apologise for the sending almost the same email as previously (it was unintentional). However, I did not really have the initial query clarified.

Yours sincerely,

Gwyn Worth

Dear Claudia Wilcock,

Thank you for your reply.

Re; "According to case law (eg “Clayton’s case”), the correct approach in allocating payments which do not match an instalment is to apply to the oldest debt first and that is how our software is configured. This is the case even where the effect is to put the current year debt in arrears."

Clayton’s case does not apply in cases involving several distinct accounts. The following quoted from the judgment https://en.wikipedia.org/wiki/Devaynes_v... confirms that the case involved 'a banking account, where all the sums paid in form one blended fund.....'

"But I think the present case is distinguishable from any of those in which that point has been decided in the creditor's favour. They were all cases of distinct insulated debts, between which a plain line of separation could be drawn. But this is the case of a banking account, where all the sums paid in form one blended fund, the parts of which have no longer any distinct existence.”

Regarding council tax, the local authority issue a bill each year relating specifically to that year's liability.

See also the House of Lords "Cory Brothers & Company Ltd. v "Mecca" (Owners of Turkish Steamship)"

“The rule in Clayton's Case (1 Mer. 572)
that where there is an account current be-
tween parties, and payments are made with-
out appropriation by either debtor or cre-
ditor, such payments are to be attributed to
the earliest items in the account, does not
apply to a case in which debts arise from
distinct transactions which are not brought
into a common account, and where....”

Yours sincerely,

Gwyn Worth

Dear Claudia Wilcock,

I would appreciate some feedback to the points I made in my 23 November 2017 concerning your response to my Freedom of Information request.

For example, has the council's Monitoring Officer assessed whether it is still appropriate (and lawful) to rely on “Clayton’s case” to allocate payments which do not match an instalment to the oldest debt (even where the effect is to put the current year debt in arrears)?

Yours sincerely,

Gwyn Worth

Dear Burnley Borough Council,

Please find below the contents of my email sent on 19 December 2017. I have been informed that the message was not delivered.

"Dear Claudia Wilcock,

I would appreciate some feedback to the points I made in my 23 November 2017 concerning your response to my Freedom of Information request.

For example, has the council's Monitoring Officer assessed whether it is still appropriate (and lawful) to rely on “Clayton’s case” to allocate payments which do not match an instalment to the oldest debt (even where the effect is to put the current year debt in arrears)? "

Yours faithfully,

Gwyn Worth

Dear Burnley Borough Council,

Will you please acknowledge receipt of my 21 December 2017 request/clarification.

Yours faithfully,

Gwyn Worth

Dear Burnley Borough Council,

Will you please acknowledge receipt of my 21 December 2017 and 1 March 2018 request/clarification.

Yours faithfully,

Gwyn Worth

Dear Burnley Borough Council,

Further to your 23 April 2018 communication, can you please say whether you intend to deal with this matter.

Yours faithfully,

Gwyn Worth

Dear FOI,

Please find below my email of 23 November 2017

'Dear Claudia Wilcock,

Thank you for your reply.

Re; "According to case law (eg “Clayton’s case”), the correct approach in allocating payments which do not match an instalment is to apply to the oldest debt first and that is how our software is configured. This is the case even where the effect is to put the current year debt in arrears."

Clayton’s case does not apply in cases involving several distinct accounts. The following quoted from the judgment https://en.wikipedia.org/wiki/Devaynes_v... confirms that the case involved 'a banking account, where all the sums paid in form one blended fund.....'

"But I think the present case is distinguishable from any of those in which that point has been decided in the creditor's favour. They were all cases of distinct insulated debts, between which a plain line of separation could be drawn. But this is the case of a banking account, where all the sums paid in form one blended fund, the parts of which have no longer any distinct existence.”

Regarding council tax, the local authority issue a bill each year relating specifically to that year's liability.

See also the House of Lords "Cory Brothers & Company Ltd. v "Mecca" (Owners of Turkish Steamship)"

“The rule in Clayton's Case (1 Mer. 572)
that where there is an account current be-
tween parties, and payments are made with-
out appropriation by either debtor or cre-
ditor, such payments are to be attributed to
the earliest items in the account, does not
apply to a case in which debts arise from
distinct transactions which are not brought
into a common account, and where....” '

I then asked in an email of 19 December 2017 the following:

'I would appreciate some feedback to the points I made in my 23 November 2017 concerning your response to my Freedom of Information request.

For example, has the council's Monitoring Officer assessed whether it is still appropriate (and lawful) to rely on “Clayton’s case” to allocate payments which do not match an instalment to the oldest debt (even where the effect is to put the current year debt in arrears)? '

Yours sincerely,

Gwyn Worth

Dear Robie-Lea Stowell,

"You may, if dissatisfied with the treatment of your request, ask the council to conduct a review of its decision under the council's complaints procedure"

I would like the council to conduct a review of its decision please.

Yours sincerely,

Gwyn Worth

Dear Burnley Borough Council,

I write to remind you of my 22 July 2018 email (see below).

'Dear Robie-Lea Stowell,

"You may, if dissatisfied with the treatment of your request, ask the council to conduct a review of its decision under the council's complaints procedure"

I would like the council to conduct a review of its decision please.'

Yours faithfully,

Gwyn Worth

Dear FOI,

Can I expect to have this matter dealt with in the near future?

Yours sincerely,

Gwyn Worth

Dear Robie-Lea Stowell,

Thank you for your response. However, I never received the response you refer to as having been dealt with in August 2018.

I raised specifically the matter below on 23 November 2017 and 5 June 2018 because of the council's statement regarding Clayton’s case (re, "According to case law (eg “Clayton’s case”), the correct approach in allocating payments which do not match an instalment is to apply to the oldest debt first and that is how our software is configured").

'Thank you for your reply.

Re; "According to case law (eg “Clayton’s case”), the correct approach in allocating payments which do not match an instalment is to apply to the oldest debt first and that is how our software is configured. This is the case even where the effect is to put the current year debt in arrears."

Clayton’s case does not apply in cases involving several distinct accounts. The following quoted from the judgment https://en.wikipedia.org/wiki/Devaynes_v... confirms that the case involved 'a banking account, where all the sums paid in form one blended fund.....'

"But I think the present case is distinguishable from any of those in which that point has been decided in the creditor's favour. They were all cases of distinct insulated debts, between which a plain line of separation could be drawn. But this is the case of a banking account, where all the sums paid in form one blended fund, the parts of which have no longer any distinct existence.”

Regarding council tax, the local authority issue a bill each year relating specifically to that year's liability.

See also the House of Lords "Cory Brothers & Company Ltd. v "Mecca" (Owners of Turkish Steamship)"

“The rule in Clayton's Case (1 Mer. 572)
that where there is an account current be-
tween parties, and payments are made with-
out appropriation by either debtor or cre-
ditor, such payments are to be attributed to
the earliest items in the account, does not
apply to a case in which debts arise from
distinct transactions which are not brought
into a common account, and where....”

Yours sincerely,

Gwyn Worth