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

Helen Barker made this Freedom of Information request to Redcar and Cleveland Borough 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 successful.

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

show quoted sections

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

 

 

show quoted sections

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

 

show quoted sections

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

 

 

 

show quoted sections

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

show quoted sections

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

Dear Business Support Corporate Resources,

Thank you. I would appreciate the council having another look at the final notice requirement.

Regulation 33(3) of the Council Tax (Administration and Enforcement) Regulations 1992 (Liability orders: preliminary steps) provides as follows (emphasis added):

" (3) A final notice need not be served on a person who has been served under regulation 23(1) with a reminder notice IN RESPECT OF THE AMOUNT CONCERNED. "

So, if after a customer has received two reminder notices and brought their account up to date and subsequently fails to pay an instalment on time, a final notice will be required because the AMOUNT CONCERNED will be different to the amount that was outstanding when she received the second reminder.

Yours sincerely,

Helen Barker

Business Support Corporate Resources, Redcar and Cleveland Borough Council

1 Attachment

Good morning

There has been some confusion on this. We thought you were implying that a final notice needs to be sent after a second reminder in all cases. In the scenario as per the quoted regulation, a final notice is issued (sample attached). The process is IT system driven and the Council uses the same system provider as used by the majority of other Local Authorities, which is fully compliant with legislation.

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

Dear Business Support Corporate Resources,

Thank you for your latest response. There is just one piece of information missing which relates to the amount of costs charged in respect of instituting the complaint (summons cost).

The summons template states that "if a Liability Order is granted a further £30 will be added to your account", but does not specify the amount it will be added to.

Yours sincerely,

Helen Barker

Business Support Corporate Resources, Redcar and Cleveland Borough Council

Good afternoon

The Summons cost is £55 and the liability costs is £30. Total £85.

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

Dear Business Support Corporate Resources,

Thank you for clarifying your response.

Since I submitted my review request a number of anomalies have come to light regarding the enforcement procedure in the area concerned. However, I do not wish to pursue this, though the council might want to reconsider its actions regarding the recovery of Council Tax in light of the issues. Note later on under the heading 'NO LEGAL BASIS TO PURSUE LIABILITY ORDER ONCE AN AMOUNT AGREED' the point discussed 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.

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.

Information obtained indicates 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 disproportionate costs.

It is apparent from information obtained that the defendant incurs a £55.00 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 this point. 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 upon the council obtaining a Liability Order (to secure the debt). A total £85.00 court costs are added comprising summons costs of £55.00 plus a further £30.00 for the Liability Order. The £30.00 sum is added to the £55.00 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 or not they take advantage of the pre-arranged payment plan. This is to compensate the council for the officer time attributed to making the application for a Liability Order (on day of the hearing).

Before the summons stage (final notice), a customer will be able 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 negotiate a payment arrangement. 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 £85.00 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 liability order has been obtained in respect of officer time engaging with customers who agree to enter into payment arrangements. 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 three which I would like to refer to regarding your response namely R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin); Regina v Miskin Lower Justices [1953] and Williams v East Northamptonshire [2016] EWHC 470 (Admin)

Regina v Miskin Lower Justices [1953]

The council's reminder/summons effectively warns that any payments made which do not exactly match the instalment amount will automatically be allocated to the oldest outstanding balance (instead of the in-year account) should the customer have outstanding liability on a previous year's account. The council's priority is to maintain a customer's in-year account so if an unspecified payment is made it has a duty to apply it to the in-year account thereby reducing the risk of unnecessary enforcement also being taken for that year's liability.

The relevance of the Miskin authority here is that it clarified the position in cases where a creditor has a decision to make as to which account payment should be allocated when a debtor has one account more burdensome for him than another and his payment is unspecified. In such circumstances the creditor must allocate the payment to the account which it is most beneficial to the debtor to reduce.

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

The Council's reminder notices state that when the summons is issued by the Magistrate’s court summons costs (£55.00) are immediately added to the amount owed.

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 summons implies that when a summons is issued, but before the Court hearing, it is possible to agree a payment arrangement but a liability order will still be pursued and the payment plan will include the £85.00 summons /liability order costs.

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, 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.

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 restricted to no more than a handful. However, there are seven 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 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 £55.00 was not incurred by the council in respect of instituting the complaint;

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

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

5. 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;

6. 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

7. the costs in general have been inflated to fund the running of the council tax and enforcement departments and/or the overall administration of council tax in the area concerned.

Yours sincerely,

Helen Barker