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

The request was partially successful.

Dear Mole Valley 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 Mole Valley 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

Freedom Of Information, Mole Valley District Council

 

 

Dear Ms Barker

 

Thank you for your information request submitted under the Freedom of
Information Act 2000.

 

Please be advised that your request is being dealt with and you will
receive a response within 20 working days, which will be 13^th May 2020.

 

Regards

 

Kate Butcher

Customer Care Officer

Freedom of Information Officer

Mole Valley District Council

01306 885001

[1]www.molevalley.gov.uk

 

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Freedom Of Information, Mole Valley District Council

 

 

Dear Ms Barker

 

Thank you for your information request submitted under the Freedom of
Information Act 2000.

 

Please be advised that the answers to your request are listed below.

 

Regards

 

Kate Butcher

Customer Care Officer

Freedom of Information Officer

Mole Valley District Council

01306 885001

[1]www.molevalley.gov.uk

 

 

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Dear Freedom Of Information,

Thank you for your response. The discretion referred to is applied after the point at which a decision is needed to be made about whether to request a summons which is not what I requested. Also checking the pre summons list only implies that discretion might be applied at this point.

Yours sincerely,

Helen Barker

Freedom Of Information, Mole Valley District Council

Dear Miss Barker

Thank you for your email.

Please can you clarify if you require additional information.

Thank you and kind regards

Kate Butcher
Customer Care Officer
Freedom of Information Officer
Mole Valley District Council
01306 885001
www.molevalley.gov.uk

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Dear Freedom Of Information,

I think the council was wrong to say that it exercised discretion at the point where a decision is needed to be made about whether to request a summons.

Yours sincerely,

Helen Barker

Freedom Of Information, Mole Valley District Council

Dear Ms Barker

 

In your original request you provided a list of examples 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.  The Revenues
team have provided a response for each of the factors:

 

1. the level of debt outstanding – we don’t summons under £5 – check pre
summons list on individual accounts before issue summons

 

2. any payments made subsequent to the full amount becoming due and time
remaining of the financial year – if full payment is made, the local
authority will not apply for a Liability Order (LO), or a part payment is
made before the court date, the local authority will still apply for LO.

 

3. are circumstances indicative of the debt being settled without
resorting to enforcement – invite customer to contact council to discuss
account, we always look at personal circumstances, payment arrangement are
made prior to court hearing inclusive of LO costs.

 

4. consider if enforcing the debt would unnecessarily subject the taxpayer
to additional costs etc. and therefore amount to a penalty (see 3 above) –
again always look at individual circumstances and invite them to contact
us.  Encourage taxpayer to complete an income and expenditure form to
evaluate their affordability and taking into consideration, lower earners,
all state related benefits and arrangement is made in line with the
Government minimum weekly payment as stated i.e. £14.75 per month. Thus
each cases will be treated on their merits.

 

5. ensure monies have been prioritised to maintaining the in-year debt –
encourage taxpayer to pay no more than the in-year payment plan to avoid
misallocation of fund.

 

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) – again system does this
but we will always manually check to ensure gone to correct debt

 

7. check for benefit claims or appeals already in the system and refrain
from taking enforcement action where such genuine cases are unresolved –
this is always checked at pre summons stage before summons issued. LO
letters are individually check and an interim arrangement is put in place
to avoid enforcement action and review at a regular intervals. 

 

I hope this is helpful.

 

If you are dissatisfied with the handling of your request, you have the
right to ask for an internal review. Internal review requests should be
submitted within two months of the date of receipt of the response to your
original letter and should be addressed to: Louise Bircher, Mole Valley
District Council, Pippbrook, Dorking, Surrey, RH4 1SJ.

 

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at: Information
Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF Or by calling 0303 123 1113 (local rate) Monday to Friday 9am – 5pm.

Thank you and kind regards

 

Kate Butcher

Customer Care Officer

Freedom of Information Officer

Mole Valley District Council

01306 885001

[1]www.molevalley.gov.uk

 

 

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Dear Freedom Of Information,

Thank you for your response. You state that the council agrees payment arrangements which are made prior to the court hearing which include Liability Order costs. I note from the council's website that the Liability Order costs are £40.00 which are additional to the costs already incurred by the customer in respect of issuing the summons (£47.50).

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 an issue. 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.

Yours sincerely,

Helen Barker

Freedom Of Information, Mole Valley District Council

Thank you for your information request submitted under the Freedom of
Information Act 2000 (FOI).  Please be advised an acknowledgement will be
sent to your request within 3 working days.  Your request will be dealt
with and you will receive a full response within 20 working days.

This MVDC email is only intended for the individual or organisation to
whom or which it is addressed and may contain, either in the body of the
email or attachment/s, information that is personal, confidential and/or
subject to copyright. If you are not the intended recipient, please note
that copying or distributing this message, attachment/s or other files
associated within this email, is strictly prohibited. If you have received
this email in error, please notify the sender immediately and then delete
it.

Freedom Of Information, Mole Valley District Council

Dear Ms Barker

 

Thank you for your email.

 

I am unsure how you wish to proceed with this matter.  The Freedom of
Information Act 2000 provides public access to information held by public
authorities, it is not a platform that can be used to debate a Council’s
processes and procedures. 

 

The purpose of an internal review is to determine whether Mole Valley
District Council handled your request in a manner consistent with our
duties under the Freedom Of Information Act 2000 (FOI).  The internal
review process is normally invoked when the authority has refused to
disclose information by relying on a relevant exemption.  This is not the
case here as we are not refusing to disclose the information. To be clear
I have copied your original request and our response below:

 

Q1. Does Mole Valley 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 – Every
account is checked at pre summons list before issuing the summons.
Customers are invited to contact the Council to discuss the account. We
always look at personal circumstances, payment arrangements are made prior
to court hearing inclusive of liability order costs. We liaise with all
stakeholders (Housing Benefits team, welfare rights, etc.) to ensure that
enforcement action is always the last resort.

 

It is not clear from your email if you wish to proceed with an Internal
Review and if so what your reasons for doing so are?  Please can you
advise stating explicitly what information you wish to receive that has
not already been disclosed.  

 

Thank you and kind regards

 

Kate Butcher

Customer Care Officer

Freedom of Information Officer

Mole Valley District Council

01306 885001

www.molevalley.gov.uk

 

 

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Dear Freedom Of Information,

Thank you for your further response. The correspondence I sent on 23 May 2020 was for the council's information. The council's Monitoring Officer would be the most appropriate person to review the content.

Yours sincerely,

Helen Barker

Freedom Of Information, Mole Valley District Council

Thank you for your information request submitted under the Freedom of
Information Act 2000 (FOI).  Please be advised an acknowledgement will be
sent to your request within 3 working days.  Your request will be dealt
with and you will receive a full response within 20 working days.

This MVDC email is only intended for the individual or organisation to
whom or which it is addressed and may contain, either in the body of the
email or attachment/s, information that is personal, confidential and/or
subject to copyright. If you are not the intended recipient, please note
that copying or distributing this message, attachment/s or other files
associated within this email, is strictly prohibited. If you have received
this email in error, please notify the sender immediately and then delete
it.