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

The request was partially successful.

Dear Gwynedd 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 Gwynedd 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

Rhyddid Gwybodaeth, Gwynedd Council

Dear Helen Barker,

Freedom of Information (ref T23)

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

In the light of the unprecedented challenges that Gwynedd Council are now facing during the Coronavirus (COVID – 19) pandemic.

Gwynedd Council will unfortunately be anticipating a delay in the processing of Freedom of Information Requests, this is due to resources being prioritised to face the pandemic.

We apologise for any inconveniences.

Your request has been passed to me to process and I can confirm that it has been logged under the reference number T23.

The Council may take up to 20 working days, from the date of receipt, to respond to your request. You should therefore receive the information you have requested, subject to the application of any exemptions permitted under the Act, by 12/05/2020 .

If you require further information please contact me by emailing [email address].cymru by quoting the reference number above.

Yours sincerely,
Gwawr Owen

Rhyddid Gwybodaeth, Gwynedd Council

Dear Helen Barker,

Freedom of Information (ref T23)

Thank you for your recent request. Please see below for the information requested:

Q1. Does Gwynedd 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 - As there may be a possibility that the discretion used may be utilised for other purposes disclosure under Section 31 (1) (d) of the Freedom of Information Act 2000 is applicable

Public Interest Arguments for Withholding information •The council needs to effectively carry out its functions with businesses, and to rely on the utmost integrity and security.
•Releasing information would begin to establish guidance additional to the Statutory Instrument

Please note that where information is subject to copyright belonging to the Council, you will need to obtain the permission of the Council to re-use it for purposes other than private study or non-commercial research. The Council may charge for re-use. Where third party copyright material is disclosed, you must obtain permission to re-use from the copyright holders concerned.

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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. Please see below for the contact details:

Information Commissioner’s Office
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Telephone: 02920 678400
Email: [email address]
Fax: 02920 678399

Yours sincerely,
Gwawr Owen

Dear Rhyddid Gwybodaeth,

I would like it clarifying what the council's procedure is regarding Council Tax recovery. 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

Rhyddid Gwybodaeth, Gwynedd Council

Dear Helen Barker,

A full explanation has been given to you why we do not share our internal guidance, this is qualified by reference to a specific Section of the Freedom of Information Act 2000. If you can establish a public interest that outweighs the reasons provided for non disclosure we may provide the required details but presently the tests applied for non disclosure far outweigh those provided by you.

Many Thanks

-----Neges Wreiddiol/Original Message-----
Oddi wrth: Helen Barker <[FOI #658711 email]>
Anfonwyd: Dydd Sadwrn, 13 Mehefin 2020 08:05
At: Rhyddid Gwybodaeth <[email address].cymru>
Pwnc: Re: Freedom of Information (ref T23)

Dear Rhyddid Gwybodaeth,

I would like it clarifying what the council's procedure is regarding Council Tax recovery. 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 Rhyddid Gwybodaeth,

A public interest outweighing the reasons provided for non disclosure would be that recovery procedures should not be kept secret from customers as the information should be easily accessible so they are able to inform themselves about the consequences of non or late payment (an advantage to both the council and its customers).

To not disclose the information suggests that the council's objective is perversely to catch out customers to unnecessarily cause them hardship through enforcement.

Yours sincerely,

Helen Barker

Rhyddid Gwybodaeth, Gwynedd Council

Dear Helen Barker,

The recovery procedures are not 'kept secret' they are set in statute and followed accordingly.
What you are asking Gwynedd to disclose is the internal discretion exercised in applying the law.

For example if there were a minimum level under which we did not pursue a debt, that it was uneconomic if we publish these details then all taxpayers could leave this sum unpaid on their bill safe in the knowledge we had disclosed we would not seek to collect the money.

The Freedom of Information 2000 recognises that there is a need for Authorities to be able to administer and collect local taxation and a qualified exemption exists. Valid reasons for not publicising these guidelines have been given and you have been invited to provide a counter public interest for these guidelines to be issued you have yet to provide any.

The internal guidance exists to prevent hardship by providing discretion not to compel officers to follow the statutory requirements where they can see hardship will be caused to a taxpayer. If a taxpayer or a third party agency acting on their behalf believes that hardship is occurring as a consequence of the misguided application of the law they are at liberty to enter a formal complaint, which if unresolved can be followed up with the Ombudsman. Such complaints are of course recorded and I am pleased to say no such complaints have been made in the last 2 years.

You are again invited to provide a public interest for disclosure.

-----Neges Wreiddiol/Original Message-----
Oddi wrth: Helen Barker <[FOI #658711 email]>
Anfonwyd: Dydd Iau, 18 Mehefin 2020 07:59
At: Rhyddid Gwybodaeth <[email address].cymru>
Pwnc: Re: ATB/RE: Freedom of Information (ref T23)

Dear Rhyddid Gwybodaeth,

A public interest outweighing the reasons provided for non disclosure would be that recovery procedures should not be kept secret from customers as the information should be easily accessible so they are able to inform themselves about the consequences of non or late payment (an advantage to both the council and its customers).

To not disclose the information suggests that the council's objective is perversely to catch out customers to unnecessarily cause them hardship through enforcement.

Yours sincerely,

Helen Barker

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Dear Rhyddid Gwybodaeth,

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. It is not necessarily the discretion exercised by the council in applying the law that is the issue but the discretion exercised by the council which is provided in the Council Tax legislation.

What about redacting information like the minimum level under which the council would not pursue a debt. It is not really relevant in any event and it does not constitute discretion if a decision of whether to apply it or not depends 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.

Yours sincerely,

Helen Barker

Rhyddid Gwybodaeth, Gwynedd Council

Dear Helen Barker,

We have responded to your question and your assumptions as to the factors to be considered are correct.

Clear reasons have been provided why we do not publish our internal guidance when deciding which cases to take forward for enforcement action (the instance of a minimum threshold was just that an example not a subject for discussion)
You need to providing a similar reasoned public interest test for disclosure.

Many Thanks
Gwawr Owen

-----Neges Wreiddiol/Original Message-----
Oddi wrth: Helen Barker <[FOI #658711 email]>
Anfonwyd: Dydd Gwener, 19 Mehefin 2020 10:38
At: Rhyddid Gwybodaeth <[email address].cymru>
Pwnc: Re: ATB/RE: ATB/RE: Freedom of Information (ref T23)

Dear Rhyddid Gwybodaeth,

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. It is not necessarily the discretion exercised by the council in applying the law that is the issue but the discretion exercised by the council which is provided in the Council Tax legislation.

What about redacting information like the minimum level under which the council would not pursue a debt. It is not really relevant in any event and it does not constitute discretion if a decision of whether to apply it or not depends 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.

Yours sincerely,

Helen Barker

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