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

Helen Barker made this Freedom of Information request to Tandridge District Council

Automatic anti-spam measures are in place for this older request. Please let us know if a further response is expected or if you are having trouble responding.

The request was partially successful.

Dear Tandridge 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 Tandridge 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

Philippa Stennett, Tandridge District Council

Dear Ms Barker
 
We acknowledge receipt of your Freedom of Information request and we aim
to provide a full reply within 20 working days.
For requests made under the Freedom of Information Act 2000 or the
Environmental Information Regulations 2004, we have a statutory
responsibility to provide the information within 20 working days. However,
with the COVID-19 pandemic, we understand from the Information
Commissioners Office these deadlines have been suspended.
 
During this time, our first priority is to maintain services and support
our residents and businesses. This can result in officers being allocated
different roles and responsibilities to their normal tasks to support
this. If your response is delayed, please accept our apologies. We will
respond to your request as soon as possible.
 
The allocated reference number is 2020/Foi/1342.
 
 
 
 
 
 
 

Request_Response, Tandridge District Council

Dear Ms Barker,

Freedom of Information Request re 2020/Foi/1342

The information you requested is as follows:

Q1. Does Tandridge 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) - Yes

Q2. If yes to (1) what factors are taken into consideration – Minimum amount £34.00 plus withdraw summons costs for CTS cases if paid in full prior to liability order hearing.

I hope that this information is of assistance, however if you have any queries about this response, please contact me.

Please remember to quote the reference number above in any future communications.

The Council has a complaints procedure. A complaint should be made in writing to the Council's Freedom of Information Officer, James Hitchcock, or by e-mail to [Tandridge District Council request email]<mailto:[Tandridge District Council request email]>. Further information about the Council's complaints procedure can be found on our website at www.tandridge.gov.uk<http://www.tandridge.gov.uk>.

If you are still not satisfied after your complaint has been dealt with, you have a right to make a further complaint to the Office of the Information Commissioner at FOI Compliance Team (complaints), Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Further information may be found on the Information CommissionerÂ’s website at www.ico.org.uk<http://www.ico.org.uk>

Yours sincerely,

Nick Smith

Business & Income Specialist

Please don't print this e-mail unless you really need to. Save paper.

Visit http://www.tandridge.gov.uk for information about services, online forms, payments and much more.

show quoted sections

Dear Request_Response,

Thank you for your response. It does not constitute discretion if a decision of whether to apply it or not depends on 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 and various other information I have seen indicates that discretion is not exercised at the point where a decision is needed to be made about whether to request a summons. The actual process of running the complaint list and the summonses is automated via the Council’s computer system.

From those sources I have seen the defendant incurs a £62.50 sum for that action. However, that sum actually covers the council's additional expenditure, some of it in respect of officer time checking reminders etc. and dealing with any calls / queries that are made after the summons has been issued in preparation for the application for a liability order and for attending court. A further £30.00 is added making a total £92.50 costs in respect of the accounts of all customers who have not paid the total amount outstanding of their liability before the council tax liability hearing (with the exception of Council Tax Support claimants). 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, that sum actually covers the council's additional expenditure, again, some of it in respect of officer time checking reminders etc. before the summons is requested.

So the greater costs generally attributable to the liability order application are incurred by the customer in respect of the summons request and vice-versa. Additionally its possible for a customer if they are Council Tax Support claimants to avoid summons costs once they're incurred if they pay the outstanding debt before the council applies for a Liability Order.

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 incorrectly refers to the enforcement process. 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 £62.50 was not incurred by the council in respect of instituting the complaint;

3. the costs have been inflated to subsidise Council Tax Support claimants who pay their outstanding debt before the Liability Order application;

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

5. the costs attributable to the liability order application have been front loaded in respect of instituting the summons;

6. the costs in general have been inflated to subsidise expenditure incurred by the council in respect of general administration before the summons stage.

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 sincerely,

Helen Barker

Request_Response, Tandridge District Council

Dear Ms Barker,

Freedom of Information Request re 2020/Foi/1342

The information you requested is as follows:

Q1: Yes we exercise our discretion prior to issuing a summons

Q2: Factors which are considered: each case is individually checked to identify payment patterns (late payments), vulnerability, benefit cases, establish if any recent contact has been received, check the correct discount is in place and look for any outstanding correspondence that may impact on the decision to issue the notice.

I hope that this information is of assistance, however if you have any queries about this response, please contact me.

Please remember to quote the reference number above in any future communications.

The Council has a complaints procedure. A complaint should be made in writing to the Council's Freedom of Information Officer, James Hitchcock, or by e-mail to [Tandridge District Council request email]<mailto:[Tandridge District Council request email]>. Further information about the Council's complaints procedure can be found on our website at www.tandridge.gov.uk<http://www.tandridge.gov.uk>.

If you are still not satisfied after your complaint has been dealt with, you have a right to make a further complaint to the Office of the Information Commissioner at FOI Compliance Team (complaints), Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Further information may be found on the Information Commissioner’s website at www.ico.org.uk<http://www.ico.org.uk>

Yours sincerely,

Julie Chester

Business & Income Lead Specialist

Please don't print this e-mail unless you really need to. Save paper.

Visit http://www.tandridge.gov.uk for information about services, online forms, payments and much more.

show quoted sections