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

Helen Barker made this Freedom of Information request to Bridgend County Borough Council

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Dear Bridgend County 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 Bridgend County Borough 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

Yours faithfully,

Helen Barker

foi, Bridgend County Borough Council

Dear Sir/Madam

FOI REQUEST X04-2189

We acknowledge your request for information received on 6 April 2020.

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Yours sincerely

Y Swyddfa Rhyddid Gwybodaeth | Freedom of Information Office
Gwasanaethau Gweithredol a Phartneriaethol | Operational and Partnership Services
Cyngor Bwrdeistref Sirol Pen-Y-Bont ar Ogwr | Bridgend County Borough Council
Ffon / Phone: (01656) 643473
Ffacs / Fax: (01656) 657899

E-bost / E-Mail [Bridgend County Borough Council request email]
Gwefan / Website: www.bridgend.gov.uk

Rydym yn croesawu gohebiaeth yn Gymraeg. Rhowch wybod i ni os mai Cymraeg yw eich dewis iaith.
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Dear foi,

I have been alerted to the fact that my request could have been clearer. In order to remove any ambiguity my request is amended as follows:

Q1. Does Bridgend County 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 sincerely,

Helen Barker

foi, Bridgend County Borough Council

Dear Sir/Madam,

 

FREEDOM OF INFORMATION REQUEST X04-2189

 

We refer to your email dated 5 April 2020 which contained a request for
information as set out in italics below.  Following consideration of your
request, in accordance with the Freedom of Information Act 2000, I respond
to each point as follows:

 

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 Bridgend County Borough Council exercise discretion before
proceeding to the Magistrates' court to seek permission to enforce payment
(it may be an automated process)

 

·         Yes

 

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

 

The factors taken into account are

 

·         Value of the debt below £50

·         Outstanding mail

·         Outstanding registered benefit claim.

·         Deceased account

 

All the above are excluded from the summons run.

 

I hope this response satisfies your request. If you are dissatisfied with
the handling of the request, under the Freedom of Information Act 2000 you
have the right to request a review of the Council’s response to your
request for information.  If you wish to request a review, please write to
the below address or email [1][Bridgend County Borough Council request email] .  Following ICO
guidance, a request for a review must be made within 2 months of a
response being received.

 

Monitoring Officer

Bridgend County Borough Council

Civic Offices,

Angel Street

Bridgend, CF31 4WB

 

If you remain dissatisfied with the outcome of that review, you may seek
further recourse by lodging an appeal with the Information Commissioner
at:

 

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Tel: 0303 123 1113

E:mail : [2][email address]

Website:  [3]www.ico.org.uk

 

Yours sincerely

--

Freedom of Information Office

Bridgend County Borough Council

Level 4, Civic Offices

Angel Street

Bridgend

CF31 4WB

Tel: 01656 643565

Email: [Bridgend County Borough Council request email]

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Dear foi,

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 provider - Northgate computer system (the defendant incurs a £70.00 sum for that action).

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 £70.00 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 five 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 and after the liability order has been obtained 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 £70.00 was not incurred by the council in respect of instituting the complaint;

3. the costs have been inflated to subsidise customers (if this scheme exists) who elect to make payment arrangements;

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

5. 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.

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

foi, Bridgend County Borough Council

Dear Sir/Madam

 

I write to acknowledge receipt of your e-mail dated 7 May 2020 which is
being treated as a request for a review of the Authority’s response to
your Freedom of Information request. I confirm that I have now arranged
for that review to be undertaken and would advise you that the Authority
aims to complete reviews within twenty working days.

 

In the meantime if you have any queries, please do not hesitate to contact
us.

 

Yours sincerely

 

 

 

Y Swyddfa Rhyddid Gwybodaeth | Freedom of Ffon / Phone: (01656) 643473
Information Office
Ffacs / Fax: (01656) 657899
Cyfarwyddiaeth y Prif Weithredwr|  Chief
Executive’s Directorate  

Cyngor Bwrdeistref Sirol Pen-Y-Bont ar Ogwr | E-bost / E-Mail
Bridgend County Borough Council [1][Bridgend County Borough Council request email]

Gwefan / Website:
[2]www.bridgend.gov.uk

 

 

 

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foi, Bridgend County Borough Council

Dear Sir/Madam,

 

Further to your email of 7 May 2020 in respect of the above I have
reviewed the Authority’s response and advise as follows:

 

The response which the Authority provided indicates the discretion
Bridgend County Borough Council (BCBC) exercises before summonses are
presented before the Magistrates Court.

 

We do not agree that BCBC do not exercise any discretion as the factors
listed are not set in legislation and are therefore discretionary. 
Therefore our answers to the questions remain the same.

 

These factors are taken into account prior to the summons being issued.
However not all the relevant circumstances are known about a customer's
account prior to the issue of the summons. If an account holder advises
BCBC of a change in their circumstances after the issue of a summons and
it is found that a summons should not have been issued or a benefit
application is made resulting in full council tax reduction being awarded,
then the summons will be withdrawn, along with the costs , at that point.

 

Should you be dissatisfied with my response to your review you may contact
the Information Commissioner’s Office:

 

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Tel: 0303 123 1113

E:mail : [1][email address]

Website: [2]www.ico.org.uk

 

Yours sincerely,

 

Charlotte Branford | Information and Data Protection Officer
Chief Executive’s Directorate | Bridgend County Borough Council | Civic
Offices | Angel Street | Bridgend | CF31 4WB
Tel :    (01656) 643565|  Email: [3][email address]|
Website: [4]www.bridgend.gov.uk

Swyddog Gwybodaeth a Diogelu Data

Cyfarwyddiaeth y Prif Weithredwr| Cyngor Bwrdeistref Sirol Pen-y-bont ar
Ogwr | Swyddfeydd Dinesig | Stryd yr Angel | Pen-y-bont ar Ogwr | CF31 4WB
Ffon :  (01656) 643565  |  Ebost: [5][email address] | 
Gwefan: [6]www.bridgend.gov.uk

Rydym yn croesawu gohebiaeth yn Gymraeg. Rhowch wybod i ni os mai Cymraeg
yw eich dewis iaith.

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choice is Welsh.

 

 

 

 

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Dear foi,

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.

Further to my 7 May email it is evident that discretion is not exercised at the point where a decision is needed to be made about whether to request a summons but rather at the other stages mentioned and consequently the costs must 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)

It is implicit from information on the council's website that when the customer receives a summons they incur the court summons costs (£70.00). I am making the assumption that the costs are actually added to the customer's account at this point because it is generally the approach taken by local authorities.

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

It is also implicit from the council's apparent acceptance of my previous email (7 May) that when a summons is issued, but before the Court hearing, it is possible to agree a payment arrangement but on the basis that the court will still be asked to grant a Liability Order and that the payment plan will include the £70.00 costs incurred in obtaining the Liability Order.

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).

Looking now just at general expenditure incurred in dealing with customer's queries in the context that all the £70.00 costs are applied on issue of the summons so that the same sum is incurred by customers whether or not their cases proceed to court. For those customers whose cases do not proceed, their costs are artificially inflated because the amount they're charged requires to be a lesser sum than the £70.00 total claimed to have been incurred by the council to obtain the order which is referable to regulation 34(7). The costs claims in connection with issuing the summons, which are relevant for these customers, are provided in regulation 34(5). The Tottenham judgment reinforces this in para 46, warning that a standard sum would require the right types of expenses being taken into account with due consideration given to the dangers of double-counting, or of artificial inflation and in para 50 saying that "what matters is that the costs that it does decide to claim are properly referable to the enforcement process". So, even if the work was not referable to the overall administration of council tax (which arguably it is) and considered referable to 'the right types of costs and expenses', the expenditure attributable to dealing with those customer's queries who subsequently pay to the authority the aggregate of the outstanding amount and costs before the court hearing would have paid an element of front loaded costs, i.e. which were not properly referable to the enforcement process.

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.

Below is a revised list of 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 £70.00 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 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;

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; 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