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

The request was refused by Lewes District Council.

Dear Lewes District 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 Lewes District 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

Thank you for your information request received today.

 

I am currently reviewing your request and investigating whether there is
any information available for disclosure.  The Council, in accordance with
Section 10 of the Freedom of Information Act 2000 (‘the Act’), will reply
to your request promptly and in any event not later than the twentieth
working day following the date of receipt. Subject Access Requests will be
responded to within one calendar month in line with the GDPR (General Data
Protection Regulation).

 

In accordance with section 8(1)(b) of the Act and related guidance from
the Information Commissioner’s Office, the Council reserves the right to
treat any request for information as invalid unless the requester supplies
their real name.  In such cases, the Council may request proof of
identity.

 

 

Please contact me again if you require any assistance with your request
and I will do my best to provide the relevant help and advice.

 

Kind Regards

 

 

Information Governance Officer

Lewes District Council and Eastbourne Borough Council

Access to Information,

1 Attachment

Dear Ms. Barker,

 

Thank you for your Freedom of Information request dated 6 April 2020 
which has been registered under reference FOI 11062

 

Q1. Does Lewes District Council exercise discretion before proceeding to
the Magistrates' court to seek permission to enforce payment (it may be an
automated process)

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

 

As the Council has concerns over the receipt of anonymous and, possibly,
pseudonymous requests, it has decided to tighten procedures and reserves
the right to ask for proof of identity. Therefore I would appreciate it if
you could provide, electronically or otherwise, some proof of your
identity.

 

The usual forms of proof such as passport, drivers licence or a utility
bill are acceptable but other formats will be considered as long as they
demonstrate the genuine identity of the requestor. Proof can be sent
directly to our Freedom of Information email address
[1][email address]

 

A request for information must contain the ‘real name’ and address of the
requestor:

 

Freedom of Information Act 2000 Section 8(1)(b):

 

In this Act any reference to a “request for information” is a reference to
such a request which—

 

        “…states the name of the applicant and an address for
correspondence”

 

I have attached the ICO guidance (Identity or motives of the applicant)
and would draw your attention to the section on page 4.

 

Alternatively, you are entitled to appeal to the Information Governance
Appeals Officer -

 

Information Governance Appeals Officer

Lewes District Council and Eastbourne Borough Council

1 Grove Road

EASTBOURNE

BN21 4TW

 

Email: [2][email address]

 

In the meantime your request has been put on hold until I receive your
reply.  If I do not hear from you within 20 working days of the date of
this email I will assume that you no longer wish to proceed with your
information request, and will take no further action.

 

Regards,

 

 

 

 

Regards,

 

Kevin Rance

Information Governance Officer

Tel: +44(0)1273 471600

[3][email address]

Lewes and Eastbourne Legal Services acting on behalf of Lewes District
Council and Eastbourne Borough Council

 

References

Visible links
1. mailto:[email address]
2. mailto:[email address]
3. mailto:[email address]

Dear Access to Information,

Thank you for your response.

The council's website indicates that no discretion is exercised before requesting the issue of a summons and the procedure is effectively automated (the defendant incurs a £82.50 sum for that action). From the council's website and various other information I have seen, it is reasonable to assume that the customer then has the option to agree a payment plan as an alternative to enforcement, providing he keeps to the agreed conditions, which include that a Liability Order is obtained and the arrangement includes the £82.50 court costs. This is presumably to compensate the council for the officer time attributed to agreeing the arrangement (in respect of those who choose that option) and making the application for a Liability Order (on day of the hearing).

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 four 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 is 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 £82.50 was not incurred by the council in respect of instituting the complaint;

3. the costs have been inflated to subsidise customers who elect to query their accounts, make payment arrangements, etc.; and

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

I would appreciate the council reviewing its decision to refuse the information and if it agrees confirm that the response to my request is "No" to (Q1) and therefore "N/A" in respect of (Q2).

Yours sincerely,

Helen Barker

Access to Information,



Thank you for your information request received today.

 

I am currently reviewing your request and investigating whether there is
any information available for disclosure.  The Council, in accordance with
Section 10 of the Freedom of Information Act 2000 (‘the Act’), will reply
to your request promptly and in any event not later than the twentieth
working day following the date of receipt. Subject Access Requests will be
responded to within one calendar month in line with the GDPR (General Data
Protection Regulation).

 

In accordance with section 8(1)(b) of the Act and related guidance from
the Information Commissioner’s Office, the Council reserves the right to
treat any request for information as invalid unless the requester supplies
their real name.  In such cases, the Council may request proof of
identity.

 

Kind Regards

 

 

Information Governance Officer

Lewes District Council and Eastbourne Borough Council

 

Access to Information,

Dear Ms. Barker,

Thank you for your email dated 30 April 2020.

The Council has not refused to provide you the information requested but has asked for evidence that your identity is not pseudonymous.

Until this is received your request will remain on hold and if not received within 20 working days of the date of the original email it will be assumed that you no longer wish to proceed with your information request, and no further action will be taken.

Regards,

Kevin Rance
Information Governance Officer
Tel: +44(0)1273 471600
[email address]
Lewes and Eastbourne Legal Services acting on behalf of Lewes District Council and Eastbourne Borough Council

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