We don't know whether the most recent response to this request contains information or not – if you are Helen Barker please sign in and let everyone know.

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

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Dear Redcar and Cleveland Borough 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 Redcar and Cleveland Borough 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

Information Security, Redcar and Cleveland Borough Council

FOI request - Ref FOI/20/0342

I wish to acknowledge receipt of you request for information.

I have asked the relevant officers of the Authority to commence enquiries immediately to find all applicable information relating to your request under the FOI Act and to supply any which is found to you.

Your request has to be processed within a maximum of 20 working days, which means the Council must provide you with the information it has (assuming no exemptions are claimed) by 16/06/2020. If it is possible to provide you with the information within a shorter timescale then that will be done.

Please be aware that there may be a delay in responding to your FOI request at this current time. Many services and resources will be keeping our essential frontline services running, which may have a knock on effect in responding within the statutory timeline. Thank you for your understanding at this very difficult time and stay safe.

Should you have any queries about this matter please don’t hesitate to contact me.

Kind Regards

FOI Officer

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Business Support Corporate Resources, Redcar and Cleveland Borough Council

1 Attachment

Good morning

 

Please find our response to your request

 

regards

 

 

Business Support Officer

Resources Business Support Team

Redcar & Cleveland House

Kirkleatham Street

Redcar

Yorkshire

TS10 1RT

 

Follow us on Twitter: @redcarcleveland

Like us on Facebook: facebook.com/redcarcleveland

 

 

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Dear Business Support Corporate Resources,

Thank you for your response. You have queried this:

" 2. any payments made subsequent to the full amount becoming due and time remaining of the financial year - Not altogether sure what this means but once they lose right to pay by instalments any remaining balance is subject to summons action.

3. are circumstances indicative of the debt being settled without resorting to enforcement If this means we won’t enter into enforcement if circumstances show that the debtor intends to pay the balance then yes? "

Firstly in respect of item 2 the point is that once customers lose their right to pay by instalments any remaining balance is subject to summons action (subject to the relevant officer's discretion). To have discretion in law is not the same as a having a choice. It is not just another way of saying that the person making the decision simply has a choice to follow a particular course of action with no consequences for him if the decision is unfair or oppressive. Officers in positions of trust have a duty to make decisions deemed most appropriate in the circumstances and should not be determined arbitrarily. An obvious factor to consider would be whether pursuing court proceedings would disproportionately increase the financial burden on the taxpayer because of expenditure incurred by the council significantly outweighing alleged sums owed.

Council Tax legislation is enacted so that in theory, if there was no provision for discretion, a customer with an outstanding balance of only £0.01 may be pursued through the court incurring costs for that action and bailiff fees on top of that, adding hundreds of pounds to the amount owed.

Secondly (item 2) to put it another way, do the circumstances suggest the likeliness of the debt being settled without resorting to enforcement? For example, a customer's payment history could indicate this and if the council were to proceed with the enforcement process regardless it could be seen an unnecessary waste of resources.

Other than the above, I would like it clarifying what the council's procedure is regarding recovery. For example, I would like to know the amount of costs charged and when they're applied etc., and whether an arrangement is possible after the summons stage and whether this avoids costs/proceeding to liability order. I have been unable to find any information on the council's website and there doesn't seem to be a debt recovery policy available to the public. If the council does not have a debt recovery policy and there is no other publicly available information perhaps the council's reminders, final notice and summons templates would be beneficial.

Yours sincerely,

Helen Barker

Information Security, Redcar and Cleveland Borough Council

Good Afternoon Ms Barker,

 

Your email has been forwarded to ourselves.  I have read your email and
I'm not entirely sure if your are requesting an internal review of your
response you have received or if you are submitting a further new Freedom
of Information request.

 

I have put down in bullet points what I believe the new FOI request may be
and will be Happy to process this for you if you are happy to proceed.

 

o I would like it clarifying what the council's procedure is regarding
recovery.
o I would like to know the amount of costs charged and when they're
applied etc.,
o whether an arrangement is possible after the summons stage
o whether this avoids costs/proceeding to liability order.
o If the council does not have a debt recovery policy and there is no
other publicly available information perhaps the council's reminders,
final notice and summons templates would be beneficial.
o do the circumstances suggest the likeliness of the debt being settled
without resorting to enforcement? For example, a customer's payment
history could indicate this and if the council were to proceed with
the enforcement process regardless it could be seen an unnecessary
waste of resources.

 

For this point - Council Tax legislation is enacted so that in theory, if
there was no provision for discretion, a customer with an outstanding
balance of only £0.01 may be pursued through the court incurring costs for
that action and bailiff fees on top of that, adding hundreds of pounds to
the amount owed.  It may be helpful to rephase it. For example, if there
is a maximum amount of debt on ones account before recovery is initiated?

 

Please let me know what is your preference and I will get it processed for
you.

 

Kindest regards

 

FOI Officer

 

From: Helen Barker [[1]mailto:[FOI #665435 email]]

Sent: 12 July 2020 17:29

To: Business Support Corporate Resources
<[2][email address]>

Subject: Re: FOI-20-0342

 

Dear Business Support Corporate Resources,

 

Thank you for your response. You have queried this:

 

" 2. any payments made subsequent to the full amount becoming due and time
remaining of the financial year - Not altogether sure what this means but
once they lose right to pay by instalments any remaining balance is
subject to summons action.

 

3. are circumstances indicative of the debt being settled without
resorting to enforcement If this means we won’t enter into enforcement if
circumstances show that the debtor intends to pay the balance then yes? "

 

Firstly in respect of item 2 the point is that once customers lose their
right to pay by instalments any remaining balance is subject to summons
action (subject to the relevant officer's discretion). To have discretion
in law is not the same as a having a choice. It is not just another way of
saying that the person making the decision simply has a choice to follow a
particular course of action with no consequences for him if the decision
is unfair or oppressive. Officers in positions of trust have a duty to
make decisions deemed most appropriate in the circumstances and should not
be determined arbitrarily. An obvious factor to consider would be whether
pursuing court proceedings would disproportionately increase the financial
burden on the taxpayer because of expenditure incurred by the council
significantly outweighing alleged sums owed.

 

Council Tax legislation is enacted so that in theory, if there was no
provision for discretion, a customer with an outstanding balance of only
£0.01 may be pursued through the court incurring costs for that action and
bailiff fees on top of that, adding hundreds of pounds to the amount owed.

 

Secondly (item 2) to put it another way, do the circumstances suggest the
likeliness of the debt being settled without resorting to enforcement? For
example, a customer's payment history could indicate this and if the
council were to proceed with the enforcement process regardless it could
be seen an unnecessary waste of resources.

 

Other than the above, I would like it clarifying what the council's
procedure is regarding recovery. For example, I would like to know the
amount of costs charged and when they're applied etc., and whether an
arrangement is possible after the summons stage and whether this avoids
costs/proceeding to liability order. I have been unable to find any
information on the council's website and there doesn't seem to be a debt
recovery policy available to the public. If the council does not have a
debt recovery policy and there is no other publicly available information
perhaps the council's reminders, final notice and summons templates would
be beneficial.

 

Yours sincerely,

 

Helen Barker

 

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Dear Information Security,

Yes that is it thank you.

Yours sincerely,

Helen Barker

Information Security, Redcar and Cleveland Borough Council

FOI request - Ref FOI/20/0458

 

I wish to acknowledge receipt of you request for information. 

 

I have asked the relevant officers of the Authority to commence enquiries
immediately to find all applicable information relating to your request
under the FOI Act and to supply any which is found to you.  I have
requested the following information:

 

I would like it clarifying what the council's procedure is regarding
recovery:

 

•             I would like to know the amount of costs charged and when
they’re applied etc.,

•             whether an arrangement is possible after the summons stage

•             whether this avoids costs/proceeding to liability order.

•             If the council does not have a debt recovery policy and
there is no other publicly available information perhaps the council's
reminders,  final notice and summons templates would be beneficial.

•             do the circumstances suggest the likeliness of the debt
being settled  without resorting to enforcement? For example, a customer's
payment  history could indicate this and if the council were to proceed
with  the enforcement process regardless it could be seen an unnecessary 
waste of resources.

 

•             Council Tax legislation is enacted so that in theory, if 
there was no provision for discretion, a customer with an outstanding 
balance of only £0.01 may be pursued through the court incurring costs
for  that action and bailiff fees on top of that, adding hundreds of
pounds to  the amount owed. Is there a maximum amount of debt on ones
account before recovery is initiated?

 

 

Your request has to be processed within a maximum of 20 working days,
which means the Council must provide you with the information it has
(assuming no exemptions are claimed) by 17/08/2020. If it is possible to
provide you with the information within a shorter timescale then that will
be done.

 

Please be aware that there may be a delay in responding to your FOI
request at this current time.  Many services and resources will be keeping
our essential frontline services running, which may have a knock on effect
in responding within the statutory timeline.   Thank you for your
understanding at this very difficult time and stay safe.

 

Should you have any queries about this matter please don’t hesitate to
contact me.

 

Kind Regards

 

FOI Officer

 

 

 

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Business Support Corporate Resources, Redcar and Cleveland Borough Council

7 Attachments

Good Morning,

Please find attached our response to your request.

Regards

Business Support Officer
Resources Business Support Team
Redcar & Cleveland House
Kirkleatham Street
Redcar
Yorkshire
TS10 1RT
Website: http://www.redcar-cleveland.gov.uk

Follow us on Twitter: @redcarcleveland
Like us on Facebook: facebook.com/redcarcleveland

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Dear Business Support Corporate Resources,

Thank you for your response effectively confirming that the application for a liability order is not proceeded with if, after a summons has been issued, a payment arrangement is agreed.

Is this because by agreeing a payment plan, the authority has accepted the amount and so there is no legal basis to proceed to obtain a liability order from the Magistrates' court which would be in accordance with paragraph 34(5) of the Council Tax (Administration and Enforcement) Regulations 1992 (or some other reason)?

Also I would like check that the council's response was correct regarding not sending final notices. I ask because my understanding is that it is a statutory requirement, if after a customer has received two reminder notices and brought their accounts up to date and subsequently fails to pay an instalment on time, a final notice is sent.

Yours sincerely,

Helen Barker

Business Support Corporate Resources, Redcar and Cleveland Borough Council

Hi Helen,

The Manager who gave the initial response is on leave until 10th August and I would rather he answered your follow up questions.
As soon as he returns I'll find out the information for you.

Regards,

Business Support Officer
Resources Business Support Team
Redcar & Cleveland House
Kirkleatham Street
Redcar
Yorkshire
TS10 1RT
Website: http://www.redcar-cleveland.gov.uk

Follow us on Twitter: @redcarcleveland
Like us on Facebook: facebook.com/redcarcleveland

show quoted sections

Business Support Corporate Resources, Redcar and Cleveland Borough Council

Good morning

The answer to the new questions are:

Is this because by agreeing a payment plan, the authority has accepted the amount and so there is no legal basis to proceed to obtain a liability order from the Magistrates' court which would be in accordance with paragraph 34(5) of the Council Tax (Administration and Enforcement) Regulations 1992 (or some other reason)? - No. It is because the Council has discretion to withdraw the summons without prejudice to any legal basis for recovering unpaid tax. The Council accepts arrangements where it can and seeks to avoid enforcement and additional costs to residents, as it is mindful of the adverse effect that this can have on residents making determined and best efforts to pay their council taxes.

The Council does not issue final notices for unpaid council tax. It issues first and second reminders and then a summons. Further default on instalments after second reminder would result in a summons. The Council Tax (Administration and Enforcement) Regulations 1992 do not require that a final notice is sent.

Kind regards

Business Support Officer
Resources Business Support Team
Redcar & Cleveland House
Kirkleatham Street
Redcar
Yorkshire
TS10 1RT

Follow us on Twitter: @redcarcleveland
Like us on Facebook: facebook.com/redcarcleveland

show quoted sections

We don't know whether the most recent response to this request contains information or not – if you are Helen Barker please sign in and let everyone know.