Exercising discretion when applying to the court for a Council Tax Liability Order

Helen Barker made this Freedom of Information request to Northumberland County Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Northumberland County Council,

The Council Tax (Administration and Enforcement) Regulations 1992 (the "Regulations") confer a duty on the billing authority to exercise discretion under regulation 34(1) when deciding whether to institute a complaint to the Magistrates' court to enforce payment.

Regulation 34(1) as amended by Regulation 15 of SI 1992/3008 states, with the relevant part emphasised, as follows:

"If an amount which has fallen due under paragraph (3) or (4) of regulation 23 (including those paragraphs as applied as mentioned in regulation 28A(2)) is wholly or partly unpaid, or (in a case where a final notice is required under regulation 33) the amount stated in the final notice is wholly or partly unpaid at the expiry of the period of 7 days beginning with the day on which the notice was issued, THE BILLING AUTHORITY MAY, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable."

Regulation 34(2) states as follows:

"The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding."

The following are examples (but by no means exhaustive) of what are reasonable factors a recovery officer should take into account in exercising discretion to institute a complaint to the Magistrates court under paragraph (2) of regulation 34 of the Regulations:

1. the level of debt outstanding

2. any payments made subsequent to the full amount becoming due and time remaining of the financial year

3. are circumstances indicative of the debt being settled without resorting to enforcement

4. consider if enforcing the debt would unnecessarily subject the taxpayer to additional costs etc. and therefore amount to a penalty (see 3 above)

5. ensure monies have been prioritised to maintaining the in-year debt

6. allocate to the in-year any monies posted to arrears (or sufficient of it) that would if it had not been misallocated prevented the in-year liability also falling in arrears (see 5 above)

7. check for benefit claims or appeals already in the system and refrain from taking enforcement action where such genuine cases are unresolved

Q1. Does Northumberland County Council exercise discretion before proceeding under regulation 34(2) of the Council Tax (Administration and Enforcement) Regulations 1992 to request a summons from a justice of the peace (it may be an automated process)

Q2. If yes to (1) what factors are taken into consideration

Yours faithfully,

Helen Barker

Northumberland County Council

1 Attachment

Our Ref: 7620  

Dear Enquirer,

INFORMATION REQUEST

Thank you for your request for information which will be dealt with under
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Information Regulations 2004.

In some circumstances a fee may be payable and if that is the case, we
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Kind regards

Information Governance Office
Northumberland County Council
County Hall
Morpeth
Northumberland
NE61 2EF

Tel: 0345 600 6400
Email: [Northumberland County Council request email]
Web: http://www.northumberland.gov.uk

Northumberland County Council

1 Attachment

Our Ref: 7620

Date: 6 May 2020

Dear Enquirer,

FREEDOM OF INFORMATION ACT REQUEST

I refer to your Freedom of Information request in relation to recovery.

Right of Access

Section 1(1) of the Act provides any person making a request for
information to a public authority is entitled.

(a) to be informed in writing by the public authority whether it holds
information of the description specified in the request (which Section
1(6) of the Act designates as the "duty to confirm or deny"), and

(b) if that is the case, to have that information communicated to him.

The right is to obtain access to the information itself and not to the
document or record which contains it.

The Act creates a general right of access to information held by public
authorities subject to various exemptions.

Northumberland County Council confirms that it holds the information you
have requested, please see the following information in response.

A1.
Yes.

A2.
i) Checks are made to see whether there is outstanding correspondence that
may affect the liability, e.g. Council Tax Support applications, request
for payment arrangements, outstanding appeals, other changes of
circumstances.

ii) There is a minimum amount for which a summons would be issued.

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Information Governance Office
Northumberland County Council
County Hall
Morpeth
NE61 2EF

Email: [Northumberland County Council request email]

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Yours faithfully

FOI Coordinator - Revenues & Benefits
Information Governance Office
Northumberland County Council
County Hall
Morpeth
Northumberland
NE61 2EF

Tel: 0345 600 6400
Email: [Northumberland County Council request email]
Web: http://www.northumberland.gov.uk

Dear Northumberland County Council,

Thank you for your response.

The information disclosed conflicts with the council's website and various other information I have seen. It is indicated from the council's corporate debt recovery policy that discretion is not exercised at the point where a decision is needed to be made about whether to request a summons. Discretion is applied after a liability order has been obtained, predominantly to agree payment arrangements.

So no discretion is exercised when requesting the issue of a summons and the procedure is effectively automated. The defendant incurs a £50.00 sum in respect of the council requesting the issue of a summons. However, that sum must cover expenditure other than for issuing the summons because it is an automated procedure, so the majority would account for general administration within the council tax department.

An additional sum of £50.00 is added to the costs already incurred for the request of the summons in respect of the accounts of all customers who have not paid the total amount outstanding of their liability by the time the case is heard, making the court costs in total £100.00. This is presumably to compensate the council for the officer time attributed to making the application for a liability order (on day of the hearing). However, the application is typically a bulk one in respect of 100's if not 1,000's of defendants in one go so the sum must cover expenditure other than for just obtaining the liability order. The majority is likely to account for administration within the recovery department in respect of officer time engaging with customers who are eligible for payment plans (and the monitoring of them) and for enforcing the debt for those not eligible.

Additionally the fee paid to HMCTS which is incorporated into the summons cost was reduced a year or two ago. The £3.00 fee was reduced by £2.50 to £0.50 after a detailed review had been carried out by the Ministry of Justice (it identified that the court were making a profit). However, the costs recharged to the customer didn't reflect the council's reduction in expenditure, the total costs remained at £100.00.

It is generally accepted by billing authorities that defences against the issue of a Liability Order at the court hearing which are considered to be valid are very restricted. However, there are six obvious additional defences that would be valid if no discretion is exercised prior to requesting the issue of a summons and expenditure incurred by the council once the summons has been issued and after the liability order has been obtained are included in those costs. They would be that;

1. the billing authority has not (does not) comply with regulation 34(1) of the Council Tax (Administration and Enforcement) Regulations 1992;

2. expenditure amounting to £50.00 was not incurred by the council in respect of instituting the complaint;

3. the costs have been inflated to subsidise customers who are eligible to make payment arrangements, etc.

4. the costs have been inflated specifically by an amount equal to the reduction of the fee payable to HMCTS for each application;

5. the costs in respect of instituting the summons include expenditure which is incurred by the council after that action; and

6. the costs in general have been inflated to subsidise expenditure incurred by the council in respect of general administration before the summons stage and officer time monitoring arrangements and/or engaging with customers after the process of applying for and obtaining the liability order has ended.

I would appreciate the council reviewing my request and confirming that the response to my request is "No" to (Q1) and therefore "N/A" in respect of (Q2).

Yours faithfully,

Helen Barker

Northumberland County Council

1 Attachment

Our Ref: 7620   

Dear Enquirer,

INTERNAL REVIEW OF FREEDOM OF INFORMATION REQUEST - Exercising discretion
when applying to Court for a Council Tax Liability 

Thank you for your request for an internal review received 07.05.2020 into
the response to your Freedom of Information request received on
15.04.2020.

A Senior Officer independent of the original response will review all
correspondence and write to you with our final response by 08.06.2020.

Kind regards

Information Governance Office
Northumberland County Council
County Hall
Morpeth
Northumberland
NE61 2EF

Tel: 0345 600 6400
Email: [Northumberland County Council request email]
Web: http://www.northumberland.gov.uk

Northumberland County Council

1 Attachment

Our Ref: 7620   

Dear Enquirer,

INTERNAL REVIEW

I refer to your request for Information in relation to exercising
discretion when applying to the court for a Council Tax Liability Order.

Please accept our apologies as it's taking longer than expected to review
the information relating to your Internal Review. An officer is currently
working on this and will send their response to you as soon as possible.

Yours faithfully

FOI/EIR Coordinator -
Information Governance Office
Northumberland County Council
County Hall
Morpeth
Northumberland
NE61 2EF

Tel: 0345 600 6400
Email: [Northumberland County Council request email]
Web: http://www.northumberland.gov.uk

Carole Beswick-Lisle, Northumberland County Council

1 Attachment

Good morning
Please find attached a letter in respect of the above for your
information.
Kind regards.
Carole Beswick-Lisle
P A to Paul Jones - Service Director - Local Services 
P A to Philip Soderquest - Head of Housing and Public Protection
Northumberland County Council
County Hall
Morpeth
NE61 2EF
Tel: 01670 620148
e-mail: [1][email address]
Website: [2]www.northumberland.gov.uk
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Dear Carole Beswick-Lisle,

Thank you for your response. I do not wish to pursue this, however, my request referred to discretion before proceeding under regulation 34(2) of the Council Tax (Administration and Enforcement) Regulations 1992 to request a summons from a justice of the peace rather than at any stage before or after.

Yours sincerely,

Helen Barker

Carole Beswick-Lisle, Northumberland County Council

Good afternoon
Thank you for your email and I have let the author have your comments.
Carole Beswick-Lisle
P A to Paul Jones - Service Director - Local Services 
P A to Philip Soderquest - Head of Housing and Public Protection
Northumberland County Council
County Hall
Morpeth
NE61 2EF
Tel: 01670 620148
e-mail: [1][email address]
Website: [2]www.northumberland.gov.uk

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