Ensuring customers are not subject to unnecessary recovery action, additional costs or hardship

The request was partially successful.

Dear Stockport Metropolitan 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 Stockport Council have its computer software set to deal with non specific payments. Current or oldest year's liability?

Yours faithfully,

Gwyn Worth

FOI Officer, Stockport Metropolitan Borough Council

Dear Gwyn Worth,

Thank you for your request for information (FOI 44860) submitted under the Freedom of Information Act 2000 which has been given the above mentioned reference number. Please quote this on any correspondence regarding your request.

Stockport Council will respond to your request within 20 working days from the date of receipt. If there will be a charge for disbursements e.g. photocopying in order to provide the information, we will inform you as soon as possible to see if you wish to proceed; however such charges are usually waived if they amount to less than £10.

Yours sincerely,

Daniel Dilworth
CSS Officer
Information Governance, Stopford House (Upper Ground South)
Stockport Metropolitan Borough Council, SK1 3XE
0161 474 5147

FOI Officer, Stockport Metropolitan Borough Council

Dear Gwyn Worth,

 

I am writing in response to your request for information (ref FOI 44860).

 

The relevant Council Service(s) has searched for the requested information
and our response is as follows.

 

 

 

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

 

Where a  Council Tax account has

 

·         an outstanding balance from a previous year

 

and

 

·         Payments  are made whose amount does not match the figure for
the current years instalments or arrangement

 

the payment will be allocated to the oldest debt first.

 

 

 

If you are unhappy with the way we have handled your request for
information, you are entitled to ask for an internal review; however you
must do so within 40 working days of the date of this response. Any
internal review will be carried out by a senior member of staff who was
not involved with your original request. To ask for an internal review,
contact [1][email address] in the first instance.

                          

If you are unhappy with the outcome of any internal review, you are
entitled to complain to the Information Commissioner. To do so, contact:

 

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

[2]www.ico.gov.uk

 

01625 545 745

 

Yours sincerely,

 

Daniel Dilworth

CSS Officer

Information Governance, Stopford House (Upper Ground South)

Stockport Metropolitan Borough Council, SK1 3XE

0161 474 5147

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Dear FOI Officer,

Thank you for stating that unmatched payments are allocate to the oldest outstanding 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 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

FOI Officer, Stockport Metropolitan Borough Council

Dear Gwyn Worth,

 

I am writing in response to your request for information (ref FOI 44860).

 

The relevant Council Service(s) has searched for the requested information
and our response is as follows.

                                  

 

 

Thank you for stating that unmatched payments are allocate to the oldest
outstanding debt first.

 

Are there measures in place to check that allocating an unmatched payment
to the oldest debt would have the consequences of putting the current
year's liability also in arrears?

 

No.

 

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.?

 

N/A.

 

 

 

If you are unhappy with the way we have handled your request for
information, you are entitled to ask for an internal review; however you
must do so within 40 working days of the date of this response. Any
internal review will be carried out by a senior member of staff who was
not involved with your original request. To ask for an internal review,
contact [1][email address] in the first instance.

                          

If you are unhappy with the outcome of any internal review, you are
entitled to complain to the Information Commissioner. To do so, contact:

 

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

[2]www.ico.gov.uk

 

01625 545 745

 

Yours sincerely,

 

Daniel Dilworth

CSS Officer

Information Governance, Stopford House (Upper Ground South)

Stockport Metropolitan Borough Council, SK1 3XE

0161 474 5147

 

Do you suffer from diabetes, COPD, asthma or any other long term
condition? Flu kills around 8,000 people with a long term condition every
winter. Contact your GP or Pharmacist as soon as possible to book your
FREE flu jab. To find about eligibility for a free flu vaccination see
[3]www.nhs.uk/staywell.
Confidentiality:- This email, its contents and any attachments are
intended only for the above named. As the email may contain confidential
or legally privileged information, if you are not, or suspect that you are
not, the above named or the person responsible for delivery of the message
to the above named, please delete or destroy the email and any attachments
immediately and inform the sender of the error.

References

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mailto:[email address]
2. http://www.ico.gov.uk/
http://www.ico.gov.uk/
3. https://www.nhs.uk/staywell

Dear FOI Officer,

Thank you for clarifying my query. I consider Stockport Borough Council has provided the information I requested, however, the purpose of this exercise was to ascertain whether or not the principles surrounding the appropriation of payments were being adhered to.

R v Miskin Lower Justices (1953)

It was held in R v Miskin Lower Justices, that where an amount obviously relates to a specific liability, it would be an unwarranted assumption to allocate the payment elsewhere.

If no instruction is given at the time of payment, then the council has a duty to allocate payment to the account which it is most beneficial to the debtor to reduce. That would be in the majority of cases the current liability if the consequences of allocating payment to the arrears meant that the customer was subject to unnecessary recovery action, additional costs etc.

I understand by the council indicating that there are no measures in place to ensure that unspecified payments are allocated to the account which it is least burdensome for the debtor that the laws surrounding the appropriation of payments are not being complied with. If the laws of appropriation were being complied with, an unmatched payment allocated to the oldest debt (having the consequences of putting the current year's liability also in arrears) would be reallocated to the current year's liability on account of the circumstances implying that this was the debtor's intention (least burdensome for the debtor).

If it appears I have misunderstood anything from what I have stated above I would appreciate if you would correct me.

P.S. Do you have anything to support why you stated "N/A" to the second element of my query.

Yours sincerely,

Gwyn Worth

Dear FOI Officer,

Please ignore my query regarding your statement, 'N/A'.

Yours sincerely,

Gwyn Worth

FOI Officer, Stockport Metropolitan Borough Council

Dear Gwyn Worth,

 

I am writing in response to your request for information (ref FOI 44860).

 

The relevant Council Service(s) has searched for the requested information
and our response is as follows.

 

 

 

1.       It was held in R v Miskin Lower Justices, that where an amount
obviously relates to a specific liability, it would be an unwarranted
assumption to allocate the payment elsewhere.

 

This is why payments that don’t equal the amount of instalments for the
current year are allocated to any arrears.

 

2.       the council has a duty to allocate payment to the account which
it is most beneficial to the debtor to reduce

 

This is why payments that don’t equal the amount of instalments for the
current year are allocated to any arrears.

 

3.       That would be in the majority of cases the current liability if
the consequences of allocating payment to the arrears meant that the
customer was subject to unnecessary recovery action, additional costs etc.

 

This is why payments that don’t equal the amount of instalments for the
current year are allocated to any arrears.

 

 

 

If you are unhappy with the way we have handled your request for
information, you are entitled to ask for an internal review; however you
must do so within 40 working days of the date of this response. Any
internal review will be carried out by a senior member of staff who was
not involved with your original request. To ask for an internal review,
contact [1][email address] in the first instance.

                          

If you are unhappy with the outcome of any internal review, you are
entitled to complain to the Information Commissioner. To do so, contact:

 

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

[2]www.ico.gov.uk

 

01625 545 745

 

Yours sincerely,

 

Daniel Dilworth

CSS Officer

Information Governance, Stopford House (Upper Ground South)

Stockport Metropolitan Borough Council, SK1 3XE

0161 474 5147

 

 

Do you suffer from diabetes, COPD, asthma or any other long term
condition? Flu kills around 8,000 people with a long term condition every
winter. Contact your GP or Pharmacist as soon as possible to book your
FREE flu jab. To find about eligibility for a free flu vaccination see
[3]www.nhs.uk/staywell.
Confidentiality:- This email, its contents and any attachments are
intended only for the above named. As the email may contain confidential
or legally privileged information, if you are not, or suspect that you are
not, the above named or the person responsible for delivery of the message
to the above named, please delete or destroy the email and any attachments
immediately and inform the sender of the error.

References

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mailto:[email address]
2. http://www.ico.gov.uk/
http://www.ico.gov.uk/
3. https://www.nhs.uk/staywell

Dear FOI Officer,

Re; "This is why payments that don’t equal the amount of instalments for the current year are allocated to any arrears"

It is not clear from the above whether the council would transfer the payment if it considered it to be in the customer’s interest, for example to avoid further costs.

The summary of the case authority (which I quoted) in respect of R v Miskin Lower Justices, appeared in an article (magazine) published by Institute of Revenues Rating and Valuation (IRRV), interpreting various case law on appropriation of payments. The article was written by consultant and trainer Paul Russell who made the disclaimer that "the views given in this column are personal views and should not be construed as a legal opinion"

Quoted from the article:

"R v Miskin Lower Justices [1953] held that where an amount so obviously relates to a specific liability, it would be an unwarranted assumption to allocate the payment elsewhere.

Thus, if the amount of the payment identifies the debt, then it must be allocated to that debt. Where the debtor states or implies that the payment should be allocated to a specific debt, the creditor must abide by that statement. Where the debtor does not make any reference as to where the payment should be allocated and the amount gives no clue, then it is up to the creditor (local authority) to make the choice."

Alternatively

The general principles, which take into consideration the relevant case law (relevant to the debtor’s rights) are set out in Chitty on Contracts (31st Edition) Volume 1 at Para 21-061 (see below, note R v Miskin Lower Justices):

'21-061
Debtor’s right to appropriate. It is essential that an appropriation by the debtor should take the form of a communication, express or implied, to the creditor of the debtor’s intention to appropriate the payment to a specified debt or debts so that the creditor may know that his rights of appropriation as creditor cannot arise [353]. It is not essential that the debtor should expressly specify at the time of the payment which debt or account he intended the payment to be applied to. His intention may be collected from other circumstances showing that he intended at the time of the payment to appropriate it to a specific debt or account [354]. Thus, where at the date of payment some of his debts are statute barred and others are not, it will be inferred (in the absence of evidence to the contrary) that the debtor appropriated the payment to the debts that were not so barred. [355]

353 Leeson v Leeson [1936] 2 K.B. 156, 161; Stepney Corp v Osofsky [1937] 3 All E.R. 289; Thomas v Ken Thomas Ltd [2006] EWCA Civ 1504, [2007] Bus. LR 429 at [19].

354 Newmarch v Clay (1811) 14 East 239, 244; Shaw v Picton (1825) 4 B. & C. 715; Young v English (1843) 7 Beav. 10; Nash v Hodgson (1855) 6 De G.M. & G. 474; R. v Miskin Lower Justices [1953] 1 Q.B. 533.

355 Nash v Hodgson (1855) 6 De G.M. & G. 474; cf. a balance owing on a current account: Re Footman Bower & Co Ltd [1961] Ch. 443 (and see below, para. 21-067). '

It was held in R v Miskin Lower Justices, that where an amount obviously relates to a specific liability, it would be an unwarranted assumption to allocate the payment elsewhere. Hence, if the laws of appropriation were to be complied with, an unmatched payment allocated to the oldest debt (having the consequences of putting the current year's liability also in arrears) would require reallocating to the current year's liability. The circumstances would imply that this was the debtor's intention as it would be least burdensome for him and would be an unwarranted assumption to do differently.

There is another source providing guidance on the appropriation of payments here:

https://www.whatdotheyknow.com/request/4...

"Where several accounts are payable to the local authority by one debtor, the debtor may, when making a payment which is insufficient to discharge all the debts, appropriate the money paid to a particular debt or debts and if the payment is accepted as so appropriated it must be applied in the manner directed by the debtor.

It may be, as frequently happens, that payments are received without any indication of appropriations by the debtor and in these cases the creditor may apply the payments as he best thinks fit (Peter v Anderson (1814) 5 TAUNT 596). The allocation will eventually have to be communicated to the debtor but this is frequently done at the time of payment in the form of the receipt.

The debtor has first choice but his right to appropriate must take the form of a communication of his intention. This communication may be express or implied but should be clear enough for the creditor to know that his own right of appropriation cannot arise (Stepney Corporation v Osofsky (1937) 3 All ER 289). It follows that it is not essential for there to be a specific expression by the debtor as to which account is to be credited. The intention may be gathered from other circumstances or implied by the debtor's conduct. The amount paid may so obviously relate to a specific liability that it would be an unwarranted assumption to allocate it elsewhere (R v Miskin Lower Justices (1953) 1 QB 533).

Once an election is made by the creditor and communicated to the debtor, it is irrevocable (Albermarle Supply Co Ltd v Hind and Co (1928) KB 307)."

Of further interest

It was held in Fernando v. Fernando (Sri Lankan case around the time of Miskin) that 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".

http://www.lawnet.gov.lk/wp-content/uplo...

Yours sincerely,

Gwyn Worth

FOI Officer, Stockport Metropolitan Borough Council

Dear Mr Worth,

Thank you for your additional request for information (FOI 44860) submitted under the Freedom of Information Act 2000 which has been given the above mentioned reference number. Please quote this on any correspondence regarding your request.

Stockport Council will respond to your request within 20 working days from the date of receipt. If there will be a charge for disbursements e.g. photocopying in order to provide the information, we will inform you as soon as possible to see if you wish to proceed; however such charges are usually waived if they amount to less than £10.

Yours sincerely,

Daniel Dilworth
CSS Officer
Information Governance, Stopford House (Upper Ground South)
Stockport Metropolitan Borough Council, SK1 3XE
0161 474 5147

show quoted sections

FOI Officer, Stockport Metropolitan Borough Council

Dear Mr Worth,

 

I am writing in response to your request for information (ref FOI 44860).

 

The relevant Council Service(s) has searched for the requested information
and our response is as follows.

 

 

 

Thus, if

 

1.       the amount of the payment identifies the debt, then it must be
allocated to that debt.

 

Yes that is what happens.

 

2.       Where the debtor states or implies that the payment should be
allocated to a specific debt, the creditor must abide by that statement.

 

Yes that is what happens.

 

3.        Where the debtor does not make any reference as to where the
payment should be allocated and the amount gives no clue, then it is up to
the creditor (local authority) to make the choice."

 

Payment allocation is automatic and based on the criteria already
explained .i.e. Does the payment match an instalment amount for the
account number quoted ? If no and there is a balance from a previous year
for the account number quoted allocate to oldest year 1^st. So that is the
choice made by the LA on the basis that this will be in the best interests
of the account holder. Given the number of accounts and amounts of payment
transactions  being received this has to be an automated process. 
However, if  an individual account is being reviewed and it is noted that
it is in the best interests of the customer to move the payment  to
another liability  e.g. to avoid recovery costs that would be considered .
It is council policy to avoid further costs being incurred at every stage
of the billing and recovery policy . The Council does not seek to make
recovery action more difficult by adding unnecessary costs.

  

 

 

If you are unhappy with the way we have handled your request for
information, you are entitled to ask for an internal review; however you
must do so within 40 working days of the date of this response. Any
internal review will be carried out by a senior member of staff who was
not involved with your original request. To ask for an internal review,
contact [1][email address] in the first instance.

                          

If you are unhappy with the outcome of any internal review, you are
entitled to complain to the Information Commissioner. To do so, contact:

 

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

[2]www.ico.gov.uk

 

01625 545 745

 

Yours sincerely,

 

Daniel Dilworth

CSS Officer

Information Governance, Stopford House (Upper Ground South)

Stockport Metropolitan Borough Council, SK1 3XE

0161 474 5147

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Dear FOI Officer,

Thank you for your further response, however, I still hold the view expressed in my email of 27 November 2017 (and further supported on 7 December 2017).

It should be noted that it can not be assumed that a customer who has arrears is not making payments as required on his outstanding liability as well as making payment (unmatched possibly) on his in year account. A system which blindly allocates unmatched payments in this scenario without any checks prior to action being taken would certainly end up burdening the customer unnecessarily with recovery costs etc. in respect of his in-year liability.

One further point which seems to have been overlooked is that the interpretation of the case authority on which the council relied came with the following disclaimer:

"the views given in this column are personal views and should not be construed as a legal opinion"

The interpretation was a summary of the various cases which were cited in the IRRV article (see below)

Peter v Anderson (1814)
Albermarle Supply Co Ltd v Hind & Co (1928)
Stepney Corporation v Osowsky (1937)
R v Miskin Lower Justices (1953)

For example, the article cited in respect of the first case was; "Peter v Anderson (1814) held that where there is no indication from the debtor, the creditor may apply payments as they think fit."

However, the authority from the "Peter v Anderson" case is as follows:

"A person who is indebted to another on two several accounts, may, on paying him money, ascribe it to which account he pleases.–And his election may either be expressed, –Or may be inferred from the circumstances of the transaction. –But if the payer does not pay specifically on one account, the receiver may afterwards appropriate the payment to the discharge of either of the accounts that he pleases."

So, the above affirms 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. It is therefore self-evident that in the case of Council Tax liability (where one account is more onerous for the debtor than another) that an unmatched payment must be carried to that account which it is most beneficial to the debtor to reduce. It follows that a debtor 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 appropriated to his arrears, would clearly intend that his payment 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.

The judgment considers different circumstance which could indicate evidence of an intent to appropriate where an election has not been expressed. The above example is considered to be circumstances which would infer that the money was paid in application to a particular debt (where the allocation to one account instead of another would prevent an unnecessary burden). Also highlighted in the judgment are the circumstances attributable to a debtor's payment pattern which would provide evidence of an intent to appropriate payment to a particular debt. 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.

Yours sincerely,

Gwyn Worth

Dear FOI Officer,

Will you please acknowledge receipt of my 30 December 2017 request/clarification.

Yours sincerely,

Gwyn Worth

FOI Officer, Stockport Metropolitan Borough Council

Dear Mr Worth,

 

Apologies for the delayed response, your query has been forwarded to our
internal complaints manager who will be in touch shortly.

 

Many thanks,

 

Danial Farooq

Freedom of Information Officer

Information Governance, Stopford House (Upper Ground South)

Stockport Metropolitan Borough Council, SK1 3XE

Tel: 0161 474 2388

 

 

show quoted sections

Anwar Majothi, Stockport Metropolitan Borough Council

Dear Mr Worth,

I am writing to you with respect to the above matter. The Freedom of Information team regrettably missed your email of the 30th March 2018. I have therefore been asked to investigate this matter under Stage 2 of the Corporate Complaints procedure. I apologise on behalf of the Council for the failure to respond to your earlier correspondence.

As I am approaching the complaint cold, I need to ascertain the issues you raised in your previous correspondence with the FOI team. I have asked the team for this information and will be in touch further regarding scoping the issues you would like investigating. Alternatively, please feel free to give me a call if you wish to discuss the complaint, or please bullet point the specific issues you wish to raise and email me.

I will be in touch shortly.

Yours sincerely,

Anwar Majothi
Corporate Complaints Manager (CSS)
Stopford House
Stockport Council
SK1 3XE

Tel: 0161 474 3182
[mobile number]
http://www.stockport.gov.uk

show quoted sections

Anwar Majothi, Stockport Metropolitan Borough Council

2 Attachments

Dear Mr Worth,

Please see attached my Stage 2 decision letter in relation to the above matter. I have also attached a copy of the Ombudsman's leaflet.

Yours sincerely,

Anwar Majothi
Corporate Complaints Manager (CSS)
Stopford House
Stockport Council
SK1 3XE

Tel: 0161 474 3182
[mobile number]
http://www.stockport.gov.uk

Stockport Local<https://www.stockport.gov.uk/groups> is the place to find out about community groups, services and activities. If you want to take up something new, find support or get more involved, it’s the easiest way to find out what’s on, when it's on and how to join in.>.

Confidentiality:- This email, its contents and any attachments are intended only for the above named. As the email may contain confidential or legally privileged information, if you are not, or suspect that you are not, the above named or the person responsible for delivery of the message to the above named, please delete or destroy the email and any attachments immediately and inform the sender of the error.

Dear Anwar Majothi,

Thank you for taking the time to review this. I note your suggestion to take this matter up with the Local Government and Social Care Ombudsman (LG&SCO) if I am unhappy with your decision. This won't be necessary, not least because it would unlikely fall under the Ombudsman's remit. The purpose of this exercise, as mentioned in a previous correspondence, was to ascertain whether or not the principles surrounding the appropriation of payments were being adhered to. I am now more than satisfied they are not and all though it would have been favourable for the customers of Stockport Borough Council that the principles were adhered to that is not the issue.

Although I do not want to press the matter I would just like reiterate the point I made in my 30 December 2017 correspondence regarding the Peter v Anderson case which is cited below from the judgment (see emphasis):

"A person who is indebted to another on two several accounts, may, on paying him money, ascribe it to which account he pleases.–And his election may either be expressed, –Or may be INFERRED FROM THE CIRCUMSTANCES OF THE TRANSACTION. –But if the payer does not pay specifically on one account, the receiver may afterwards appropriate the payment to the discharge of either of the accounts that he pleases."

There is a world of difference between the above and what Stockport Borough Council has cited which is an interpretation from someone writing for the IRRV magazine who made the disclaimer that "the views given in this column are personal views and should not be construed as a legal opinion", i.e....

"Peter v Anderson (1814) held that where there is no indication from the debtor, the creditor may apply payments as they think fit."

Yours sincerely,

Gwyn Worth

Anwar Majothi, Stockport Metropolitan Borough Council

Dear Mr Worth,

Thank you for your email. It is very astute of you to observe that the Ombudsman may not review your complaint further. I signposted you to them if you were unhappy with the handling of your complaint. As you know, the Information Commissioner's office is the appropriate body that deals with FOI matters but the issues you raise do not appear to be about what has been disclosed (or not) to you.

I have noted your comments.

Thank you for bringing these issues to the Council's attention on behalf of rate payers'.

Yours sincerely,

Anwar Majothi
Corporate Complaints Manager (CSS)
Stopford House
Stockport Council
SK1 3XE

Tel: 0161 474 3182
[mobile number]
http://www.stockport.gov.uk

show quoted sections

Dear Anwar Majothi,

I would like to say that my comment regarding the remit of the LG&SCO was not intended to be sarcastic.

I understood there was no issue requiring involvement of the Information Commissioner and the reason the LG&SCO was suggested was because the matter had moved away from Freedom of Information. My comment regarding the matter unlikely falling under the Ombudsman's jurisdiction was based on it raising a point of law.

Yours sincerely,

Gwyn Worth

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