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

Helen Barker made this Freedom of Information request to Leicester City Council

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Dear Leicester City 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 Leicester City 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

info-requests, Leicester City Council

Website:                         [1]www.leicester.gov.uk  

E-mail:                             [2][Leicester City Council request email]   

Our Ref:                          FOI 20817

Date:                               27^th April 2020

 

Ms Helen Barker

[3][FOI #660553 email]

 

Dear Ms Barker,

 

FREEDOM OF INFORMATION ACT 2000

 

Thank you for your email of 25^th April 2020 requesting information about
Council tax liability orders.

 

We have received your request for information. The Council is facing
unprecedented pressure on services due to the Coronavirus. The Information
Commissioner has made a statement on this matter and understands that
Councils may have to prioritise other more critical services. It would be
very much appreciated if you could withdraw your request if it is not
urgent, and re-submit it at a later date when the pandemic is over. If you
wish to continue with your request, please be aware that we cannot
guarantee a response to your request within the normal timeframes.

Thank you for your patience.

 

Yours sincerely,

 

Baljeet Kaur

Information Governance Assistant

 

From today until further notice we will only be able to receive electronic
documentation.

References

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info-requests, Leicester City Council

1 Attachment

Dear Ms Barker

 

FREEDOM OF INFORMATION ACT 2000 – Tax liability orders

 

Please accept our apologies for failing to meet the deadline to respond to
your request for information on this occasion. The Council is facing
unprecedented pressure on services due to the Coronavirus. Staff absence
and re-allocation of resources to ensure critical services continue means
that we have been unable to answer your request on time. The Information
Commissioner has made a statement on this matter and understands that
Councils may have to prioritise other more critical services.

 

We will of course respond to you as soon as we are able to do so.

 

Thank you for your patience.

 

Lynn Wyeth

 

Keep up to date with the latest information on COVID-19 through
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You can also follow us on [2]Twitter and [3]Facebook. 

 

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From today until further notice we will only be able to receive electronic
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Lynn Wyeth
Head of Information Governance & Risk and Data Protection Officer
Tel. 0116 4541300

Request it – Pay it – Report it:
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info-requests, Leicester City Council

2 Attachments

Dear Ms Barker

 

FREEDOM OF INFORMATION ACT 2000 – Tax liability orders

 

Please accept our apologies for failing to meet the deadline to respond to
your request for information due to the need to prioritise critical
services. The information you have requested is now attached.

 

Regards

 

Lynn Wyeth

 

Keep up to date with the latest information on COVID-19 through
[1]Leicester City Council’s Your Leicester newsletter.
You can also follow us on [2]Twitter and [3]Facebook. 

 

[4]Subscribe to Your Leicester

 

From today until further notice we will only be able to receive electronic
documentation.

 

Lynn Wyeth
Head of Information Governance & Risk and Data Protection Officer
Tel. 0116 4541300

Request it – Pay it – Report it:
Sign up for an account to access council services 24 hours a day, from any
computer or mobile device. [5]leicester.gov.uk/myaccount

Any personal data that you provide will be processed in accordance with
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and our partners to deliver and improve services and fulfil our legal
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unless required or allowed to do so by law. Read more about how we use
personal data in our Privacy Notice on our website:
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Dear info-requests,

Thank you for your response.

The majority of checks are not discretionary related but prerequisite to issuing a summons, or applied after the summons has been requested. It does not constitute discretion if a decision of whether to apply it or not depends on being prompted by the customer, parameters being agreed in advance relating to the outstanding monetary value of a customer's account or other information that can be input so the council tax processing system can detect it when running the complaint list. Discretion could only be appropriately applied at a stage when the summons is normally requested, i.e. when all the relevant circumstances are known about the customer's account at that particular time.

The council's website, debt policy and various other information I have seen indicate 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 earlier than this, after a summons has been issued but before a liability order is obtained and after a liability order has been obtained, primarily to make payment arrangements which need to be monitored after the debt is secured by a liability order. The actual process of running the complaint list and the summonses is automated for which the defendant incurs substantial costs.

It is apparent from information I have seen that the defendant incurs a £55.50 sum in respect of the council requesting the issue of a summons (an automated procedure). However, that sum actually covers the council's additional expenditure in respect of sending out reminders and officer time engaging with customers who query their accounts at these points. Also the same for final notices (see below) and after a summons has been issued in respect of customers who query their accounts to arrange payment plans which are conditioned in the latter case upon the council obtaining a Liability Order (to secure the debt). A total £74.50 court costs are added comprising summons costs of £55.50 plus a further £19.00 for the Liability Order. The £19.00 sum is added to the £55.50 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 before the court hearing, whether choosing to query their accounts or not. This is to compensate the council for the officer time attributed to dealing with customers (in respect of those who contacted them) and making the application for a Liability Order (on day of the hearing).

Before the summons stage (final notice), it is possible for a customer to avoid summons costs, for example, a taxpayer who has lost her right to pay by instalments may have them effectively re-instated if she manages to secure a payment plan. Discretion whether to enter into a payment agreement with a taxpayer is applied again once the council has obtained a liability order (as an alternative to taking recovery action) but by that time she would have had the total £74.50 court costs added to the debt and included in the payment plan.

So the costs in reality cover the council's expenditure (additional to the issue of the summons) attributable to before the summons is requested, both after the summons is requested but before the liability order application and after the order has been obtained in respect of officer time engaging with customers who agree to enter into payment agreements. The costs must therefore with absolute certainty cover the general administration of the council tax and enforcement departments.

RELEVANT LEGISLATION AND CASE LAW

I understand that the council must adhere to the Council Tax (Administration and Enforcement) Regulations 1992 and also be mindful of all established case law regarding the area concerned.

I am aware of a number of cases but particularly two which I would like to refer to regarding your response namely R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin) and Williams v East Northamptonshire [2016] EWHC 470 (Admin)

Williams v East Northamptonshire [2016] EWHC 470 (Admin)

The council's debt policy advises that once a summons is issued 'additional summons costs [£55.50] will be added to the account on the service of the summons and must be paid together with the full Council Tax'.

I am aware that in the East Northamptonshire case, the judgment went to some lengths to clarify the position with regard to when, i.e. at what stage it was permissible for a billing authority to add summons costs to a customer's account. In essence, what the judgment determined was that it was entirely lawful for the billing authority to inform the customer by stating on the summons the amount of costs it would ask for in the event it proceeded to make the application at court for a Liability Order. Implicit in this is that it is impermissible to add to the customers account at this point the costs claimed by the billing authority because there is only any legal basis to do so once the court has granted the Liability Order. The following in paragraph 28 of the judgment bears this out:

"...I have come to the clear conclusion that the summons is not an abuse of the process or otherwise invalid by reason of the fact that it includes reference to a claim for costs. The heading of the summons makes clear it seeks recovery of the Council Tax only. The complaint is therefore only as to the non payment of the Council Tax. The tax due is the Council Tax which is separately identified both on the first page and on the subsequent page. It is abundantly clear that the subject matter of the summons is therefore the recipient’s liability for the Council Tax...."

NO LEGAL BASIS TO PURSUE LIABILITY ORDER ONCE AN AMOUNT AGREED

The Council's website informs customers that once a summons has been issued it is possible to agree a payment arrangement. The debt policy advises that if a payment arrangement is made the council will still apply to the Magistrates for a liability order to secure the debt and additional costs for the liability order will be added (£74.50 in total).

These costs are incurred at a point after the customer has tendered payment. Therefore, the cost attributable to this activity could not lawfully be included in the costs claimed because expenditure may only be recharged that has been incurred by the authority up to the time of the payment or tender and clearly resources called upon by engaging staff in the matter would occur after payment was tendered. Expenditure incurred by the authority after that point falls on the wrong side of line to be referable to the summons and would only be lawfully recharged (if eligible) in respect of those who had not paid or tendered to the authority the aggregate of the outstanding amount and costs before the court hearing because only those customers may be proceeded against further and incur additional costs.

To be clear, it is not just the costs in these circumstances which are artificially inflated by either front loading or being charged where there is no legal basis at all which is a point of contention. The consequences are that for all those cases against whom the council proceeds in order to secure the debt once an amount has been agreed (the payment arrangement), the action is unlawful because regulation 34 of SI 1992/613 provides that the authority shall accept the amount and the application shall not be proceeded with in these circumstances.

Paragraph 34(5) of the regulations, are as follows (with emphasis):

“(5) If, after a summons has been issued in accordance with paragraph (2) but before the application is heard, there is paid or TENDERED to the authority an amount equal to the aggregate of—

(a) the sum specified in the summons as the sum outstanding or so much of it as remains outstanding (as the case may be); and

(b) a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application UP TO THE TIME OF THE payment or TENDER,

the authority shall accept the amount and the application shall not be proceeded with.”

The authority could not defend its actions on the grounds that an arrangement does not constitute payment therefore it is entitled to obtain a liability order to secure the debt because the law does not say that the amount must be paid for the application not to be proceeded with, only that the amount tendered is accepted (the aggregate of the outstanding amount and costs). By agreeing a payment plan which encompasses the outstanding amount and costs (costs which are properly referable to the enforcement process) the authority has accepted the amount and so there is no legal basis to proceed to obtain a liability order from the Magistrates' court.

Notwithstanding the lack of provision to proceed once the aggregate of the outstanding amount and costs has been agreed by the council, even if it were permissible, these costs and any other incurred would have further criteria to meet for the court to be satisfied that they were reasonably incurred.

R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin)

The Tottenham case provides in the judgment some general guidance regarding Council Tax Liability Order court costs and give clues (paragraphs 35 and 46) as to what should not be included in the costs and an approach that might be legitimate in respect of averaging the costs.

“It is clear that there must be a sufficient link between the costs in question and the process of obtaining the liability order. It would obviously be impermissible (for example) to include in the costs claimed any element referable to the costs of executing the order after it was obtained, or to the overall administration of council tax in the area concerned.” (Paragraph 35)

"In principle, therefore, provided that the right types of costs and expenses are taken into account, and provided that due consideration is given to the dangers of double-counting, or of artificial inflation of costs, it may be a legitimate approach for a local authority to calculate and aggregate the relevant costs it has incurred in the previous year, and divide that up by the previous (or anticipated) number of summonses over twelve months so as to provide an average figure which could be levied across the board in "standard" cases.." (Paragraph 46)

However, the above does not go so far as to specify what the right types of costs and expenses are, plus the 1992 Council Tax Regulations (and associated guidance) also apply so any provisions in those capable of establishing what are "relevant costs" need taking into account. Crucially, the possibility that the approach of averaging the costs is conditional upon the right types of costs and expenses being taken into account and being mindful of the dangers of artificially inflating the costs.

Government guidance from 1993 and 2013 both provide within them that "the Court may wish to be satisfied that the amount claimed by way of costs in any individual case is no more than that reasonably incurred by the authority". They do so because the court is obliged to hear individually anyone wishing to raise a defence and regulation 35(1) of the Regulations provides that a single liability order may deal with one person and one amount.

The streamlining of the process, i.e. by hearing cases of all the defendants in a bulk application who decline the invitation to defend themselves would if the law was properly applied be met with a forfeiture of costs income because only expenditure which is common to every defendant may lawfully be included in a standard sum. For example, even if expenditure attributable to engaging with customers agreeing payment arrangements was not impermissible for the reasons discussed, they would not otherwise be deemed "relevant costs" to be included in the calculation because the expenditure is not common to every defendant but also because it would be impermissible to include in the costs any element referable to the overall administration of council tax in the area concerned (para 35, Tottenham judgment).

There is also the anomaly that the customers who to the greatest degree drive the level of activity are ironically avoiding the recovery process and not incurring any costs. These are generally those customers who have negotiated their instalments being re-instated by agreeing new payment terms, whilst customers who settle their debt without causing additional work are left subsidising this expenditure when bizarrely none is incurred in connection with their summonses.

Expanding further on the concept of "reasonably incurred". If the costs are to be recharged lawfully to the customer it must have been reasonable for the council to have incurred them. Any expenditure recharged to the customer in respect of costs has not been reasonably incurred which is attributable to activity carried out by the council above what is necessary to secure the court order. Obtaining the order is merely a formality and it functions simply as the vehicle empowering the council to make use of a range of enforcement measures to pursue monies owed should it be necessary once it is in place, so with that in mind and that applications are made en masse, then the vast majority of costs typically claimed by local authorities are not necessary in a process which amounts to no more than seeking permission from the court.

Expenditure attributable to work carried out, which is clearly by its nature referable to the overall administration (in the area of council tax concerned) would not by virtue of it coinciding with when the complaint is in progress be sufficient to link it to the actual process of obtaining the liability order. This is separable from any that is permissible to be included in the costs claimed and would need omitting from the calculation because it would not be reasonable to expect those paying them to subsidise general administration or to be exploited as a means of funding revenues/recovery staff - and - because it is not common to every defendant.

BREAKDOWN OF COSTS

A breakdown has been obtained in relation to the councils costs when they were charged at a lesser total amount of £72.50. The sum determined to be the amount which the council deems it is entitled to for taking its customers to court is £1,667,802. This figure is split between the cost of issuing a summons and obtaining the Liability Order, which is £1,287,719 (77%) and £380,082 (23%) respectively. The £1.3 million figure is divided by the total number of summonsed accounts (24,054) and the £0.38 million figure divided by the number of Liability Orders obtained (19,692) to arrive at a cost of £53.50 and £19.00 per case in respect of the summons and liability order costs.

An element of the summons costs is made up with expenditure attributable to the issue and preparation of reminders and the final notice which is incurred by the council before a decision has been made to pursue a complaint to the court. The Tottenham judgment (para 43) defines the point when this decision is made to be when the process of enforcement gets underway (only then can costs be incurred in connection with the application). This element would be impermissible because the decision to actually pursue a complaint can not be taken by the council until either the Statutory reminder or Final Notice has failed to obtain payment. In any event, even if the expenditure was permissible, the Revenues & Benefits (R&B) Team Leader's involvement, for which £24,502 is added to the costs at this stage, has been artificially inflated by £9,470 (see hourly rate manipulation later).

The same amount is attributed again at a point described in the breakdown as the "Summons Stage", so this has similarly been artificially inflated by £9,470.

The rest of the summons cost is made up from expenditure which is in the vast majority of cases clearly referable to the overall administration of council tax in the area concerned. "System and Payments", to which £93,528 is attributed, includes estimated payment transaction costs as well as maintenance and running costs. "Other Staff Costs" exclusively accounts for man hours (38,633) attributed to the R&B Team Leader, R&B Officers (two grades) and the R&B Manager which equates to £1,112,300.10. However, even before considering whether the expenditure is referable to general administration, the sum can be calculated to have been artificially inflated by £429,974.82 due to manipulating hourly rates. The majority of expenditure in this category is attributed to the aforementioned officers handling customer complaints, monitoring cases, processing claims for Council Tax Reduction (CTR) & related queries and dealing with enquiries (telephone, face to face, email etc.). With the exception of the CTR scheme (it is not even related), this expenditure is referable to the overall administration of council tax in the area concerned so should all be excluded from the costs claimed.

The Liability Order costs almost exclusively account for man hours (11,977) attributed to the aforementioned officers which equates to £378,294.38. However, because of the manipulation of hourly rates this figure has been artificially inflated by £146,212.61. The only element that does not account for man hours is payment processing to which £1,788 is attributed. Again the majority of expenditure is referable to general administration as before, i.e. handling customer complaints, monitoring cases, processing claims for CTR & related queries and dealing with enquiries (telephone, face to face, email etc.). Additionally some of this is referable to activity carried out after the order has been obtained and obviously impermissible.

It is hardly credible that over £380,000, which represents the cost attributable to the court hearing is incurred because the resources required in terms of officer time can not amount to more than a few hours each time a hearing takes place which is typically one a month. Although, in the case of this local authority, the number of hearings each year is 27 the average would still be over £14,000 per hearing. The breakdown, however, implies that expenditure is accounted for from when the summons is served up until the liability order hearing. It is argued that this would technically fall under the previous process because the Council Tax regulations (SI 1992/613) refer to this as a sum equal to the costs reasonably incurred by the authority in connection with the application up to the time of the payment (or tender). Though in practice, that amounts to the cost of issuing the summons because the council incurs no more expenditure once that has been done in respect of those who pay their outstanding liability before the hearing whether they do so straightaway or leave it until immediately before the court hearing.

Hourly rate manipulation (artificially inflating costs)

The hourly rates, which already incorporate National Insurance, superannuation and employee insurance have 63% added to them (Other costs).

The Team Leader hourly rate of £26.28 is increased to £42.84

Revenues Grade 5 - £16.14 increased to £26.31

Benefits Grade 6 - £18.57 increased to £30.27

Manager - £31.77 increased to £51.79

This adds a total £588,352 to the costs and is the amount by which they are artificially inflated.

For the court to properly consider the breakdown it would be necessary for it to contain sufficient information as to how the figure was arrived at, and what costs it represents. It would also need to contain enough information to satisfy the court that the costs were incurred in obtaining the order and not for carrying out general council tax administration. But there is clear enough evidence in the breakdown to satisfy the court that expenditure attributed to work done outside the process of applying for and obtaining the liability order is being claimed.

Clearly the calculation does not contain sufficient information to satisfy the court that the costs are reasonably incurred, but it is quite obvious that in the majority of cases the court simply rubber stamps the orders without questioning them. It is hardly credible that the Magistrates would be mindful of the regulations, guidance and case law relevant to costs which is what the majority of councils must rely on to succeed in getting council tax administration funded from the costs recharged to customers for the formality of summonsing them to court.

Information obtained from the council's website also suggests what would be valid defences against the issue of a Liability Order at the court hearing and what are not valid defences.. However, there are eight 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 outside the process of applying for and obtaining a liability order 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 £55.50 was not incurred by the council in respect of instituting the complaint;

3. expenditure amounting to £19.00 was not incurred by the council in respect of obtaining the liability orders;

4. the costs have been inflated to subsidise customers who opt to make payment in line with the pre-arranged payment plans;

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

6. the costs have been inflated to subsidise expenditure incurred by the council in respect of potential applications to the court but which are not made by virtue of negotiations that have taken place to reinstate instalments;

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

8. the costs in general have been inflated to fund the running of the council tax and enforcement departments.

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

Yours sincerely,

Helen Barker

info-requests, Leicester City Council

1 Attachment

Dear Ms Barker

 

The Council believes that it does comply with the regulations. The rest of
your follow up does not appear to be a request for information held, and
therefore is not a valid request under the FOI Act. The Council believes
that it has provided the information previously as requested and the FOI
Act does not require it to give an opinion, if that is not information
held. If you are unhappy with the information you received, you have been
informed how to submit a request for an internal review.

 

Regards

 

Lynn Wyeth

 

Keep up to date with the latest information on COVID-19 through
[1]Leicester City Council’s Your Leicester newsletter.
You can also follow us on [2]Twitter and [3]Facebook. 

 

[4]Subscribe to Your Leicester

 

From today until further notice we will only be able to receive electronic
documentation.

 

Lynn Wyeth
Head of Information Governance & Risk and Data Protection Officer
Tel. 0116 4541300

Request it – Pay it – Report it:
Sign up for an account to access council services 24 hours a day, from any
computer or mobile device. [5]leicester.gov.uk/myaccount

Any personal data that you provide will be processed in accordance with
current data protection laws. It will be used by Leicester City Council
and our partners to deliver and improve services and fulfil our legal
duties. We will not disclose any personal information to anyone else
unless required or allowed to do so by law. Read more about how we use
personal data in our Privacy Notice on our website:
[6]www.leicester.gov.uk

 

Leicester City Council will operate with creativity and drive

for the benefit of Leicester and its people

Be confident / Be clear / Be respectful / Be fair / Be accountable

 

 

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Dear info-requests,

Thank you for your response. I do not wish to pursue this, however, the council might want to reconsider its actions regarding the recovery of Council Tax in light of the issues. Incidentally, the point discussed re 15 June email under the heading 'NO LEGAL BASIS TO PURSUE LIABILITY ORDER ONCE AN AMOUNT AGREED' is not a discretionary matter. I suggest this and the other points raised are considered by the Monitoring Officer, but that is of course a matter for the council.

Yours sincerely,

Helen Barker

Helen Barker left an annotation ()

For anyone interested or wondering where the breakdown of costs referred to in the above 15 June 2020 correspondence was obtained it can be found in the FOI response here:

2019 02 22 Summons Costs Calculation August 2018.pdf
https://www.whatdotheyknow.com/request/h...