Legal dept.

geoff kelly made this Freedom of Information request to Cheshire West and Chester Council

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was partially successful.

Dear Cheshire West and Chester Council,

1)Can you confirm that the council legal dept are aware of the ruling issued by the local government ombudsman concerning
head H fees....It may help them if i post the link for you.

http://www.lgo.org.uk/GetAsset.aspx?id=f...

2)Are the council planning to contact the people wrongly charged?

3) Is there Or has been any correspondence between the council and the bailiff company's regarding the Use of Head H fees In the last twelve months.

4)If so can you disclose these documents?

Yours faithfully,

geoff kelly

Cheshire West and Chester Council

RE: Your request under the Freedom of Information Act 2000

Case Reference: 101001919118

Dear MR Kelly

Thank you for your email on March 28th 2014.

It will be treated as a request within the meaning of the Act: this means that we will send you a full response within 20 working days, either supplying you with the information which you want, or explaining to you why we cannot supply it.

If we need any further clarification or there is any problem we will be in touch.

In the meantime if you wish to discuss this further please contact FOIWEST. It would be helpful if you could quote the log number.

Yours sincerely

Will Webb
Solutions Team

Cheshire West and Chester Council

show quoted sections

Ray McHale left an annotation ()

I am asking local councillors to pursue this. And the local press are also aware of the issue.

geoff kelly left an annotation ()

Thanks ray..I have been sending links and emails to a editor and a councilor..
This wrong needs righting.

Dear Cheshire West and Chester Council,

Looks like they are late...I wonder why? Feathers ruffled?

Yours faithfully,

geoff kelly

FOI West, Cheshire West and Chester Council

Dear Mr Kelly

 

Thank you for your request for information of 27 March 2014 which was
received on 28 March 2014 and therefore due by deadline of today, 29 April
2014.  It  has been logged as 1919118 and has been dealt with under the
Freedom of Information Act 2000.  I confirm that Cheshire West and Chester
Council hold information relating to your request and am able to provide
you with the following response.

 

For the purpose of clarity,  I have reproduced your request and append the
answers beneath each question:

 

1)Can you confirm that the council legal dept are aware of the ruling
issued by the local government ombudsman concerning

head H fees....It may help them if i post the link for you.

 

[1]http://www.lgo.org.uk/GetAsset.aspx?id=f...

 

This is not considered to be a valid request under the FOIA as it is not
a request for recorded information. 

 

2)Are the council planning to contact the people wrongly charged?

 

This is not considered to be a valid request under the FOIA as it is not
a request for recorded information. 

 

3) Is there Or has been any correspondence between the council and the
bailiff company's regarding the Use of Head H fees In the last twelve
months.

 

Yes.  The timeframe the Council used to identify, locate and extract
relevant recorded information was 28 March 2013 to 27 March 2014.

 

4)If so can you disclose these documents?

 

I can confirm that there are 4 documents that fall within the remit of
your request, i.e correspondence between the Council and the bailiff
companies regarding the use of Head H fees in the last 12 months 28 March
2013 to 27 March 2014.  However we believe that we need further time to
consider exemptions, including legal professional privilege and to
consider the public interest in disclosing the information.  We estimate
that we will have reached a decision on or before 29 May 2014 and we will
write to you then.

 

I trust this answers your enquiry.

 

The Council considers that your request has been answered in full by
either confirming that information is not held, providing you with the
information requested, or explaining why any information has been withheld
and the reasons for any redaction.    Where applicable, the Council has
also told you the reasons for the delay in responding to your request.

 

If you are unhappy with the way your request for information has been
handled you can request a review by writing to the Solutions Team within

40 working days from the date of the Council’s response.  You are entitled
to a review by the Council if:

·         You are dissatisfied with the Council’s explanation of why the
application was not dealt with within the 20 working day time limit.

·         All the information requested is not being disclosed and you
have not received an explanation why some information is not being
disclosed.

·         A reason for the disclosures under the request being refused is
not received.

·         You consider that exemptions have been wrongly applied, and/or

·         You consider that a fee has been wrongly applied.

Please set out your grounds for seeking a review together with what
specific part of your request those grounds apply to and the outcome you
are seeking.  The Council reserves the right to ask you for clarification
of the grounds for your review request if the grounds are not clear, and
to delay commencing the review if such grounds are not provided.

 

The Solutions Team can be contacted by email via: 
[2][Cheshire West and Chester Council request email] or at the following address:

 

Solutions Team

Cheshire West and Chester Council

HQ

58 Nicholas Street

Chester

CH1 2NP

 

The Solutions Team will acknowledge a request for an internal review
within 5 working days and complete the review as soon as possible and no
later than 40 working days from receipt of the request.

 

More information about the Council’s internal review process can be found
via:
[3]http://www.cheshirewestandchester.gov.uk...

 

If you remain dissatisfied following the outcome of your review, you have
a right of appeal to the Information Commissioner at:

 

The Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

Telephone: 08456 30 60 60 or 01625 54 57 45

Website: [4]www.ico.gov.uk

 

There is no charge for making an appeal.

 

Yours sincerely

 

Ruth Winson

Solutions Team

Cheshire West and Chester Council

 

 

 

show quoted sections

geoff kelly left an annotation ()

Looks like the common purpose committee might be meeting over this one...Or maybe they are devising a plan..

FOI West, Cheshire West and Chester Council

1 Attachment

Dear Mr Kelly

 

Further to my colleague’s email below I am now able to provide you with a
response to your question 4.

 

As advised, the Council holds 4 emails relevant to your request, being a
copy of the email from the Council to the 3 bailiffs on the subject of
Head H fees and other matters outside the remit of your request.  Please
find attached redacted copies of those emails.  A significant part of the
redaction relates to queries and responses to matters unrelated to the use
of Head H Fees.  The other redaction has been applied for the following
reasons:

 

Section 42 – Legal Professional Privilege

 

The Council considers that this information is exempt under Section 42
(Legal Professional Privilege) of the Freedom of Information Act 2000. 

The email correspondence refers to legal advice produced for CIVEA for the
purpose of giving legal advice to them and the bailiff companies they
represent. All references to  legal advice is exempted from disclosure
pursuant to Section 42, Legal Professional Privilege.

The convention of legal advice privilege is part of the principle of Legal
Professional Privilege (“LPP”).  Legal advice privilege may apply whether
or not there is any litigation in prospect. It will only cover
confidential communications between the client and the lawyer made for the
dominant purpose of seeking or giving legal advice. Only communications
are covered. This will include written correspondence (letters, emails or
faxes) and oral communications, or documents setting out the content of
those communications. The dominant purpose of the communication or
document must be to obtain legal advice, or to give it. The advice itself
must concern legal rights, liabilities, obligations or remedies or
otherwise have a relevant legal context.

 

The documents falling within this exception are the emails from
representatives of Jacobs, Dukes and Bristow & Sutor, summarising the
advice they received about the use of Head H Fees. The communications were
not intended for wider disclosure and were written for the purpose of
confirming legal advice.

As the information is covered by LPP the public interest test applies. The
information must still be disclosed unless the public interest in
maintaining the exemption outweighs the public interest in disclosure. If
the balance of the public interest is equal, the information should be
disclosed. The public interest will be particularly strong if the advice
is recent or still being relied upon. The public interest may also be
particularly strong if the advice is related to significant interests of
individuals or a commercial interest.

            In relation to the public interest test the following should
be recorded:

·         Public interest factors in favour of maintaining the exemption
and the weight attached to them.

·         Public interest factors in favour of disclosure, and the weight
attached to them.

·         The outcome of the public interest test. The information can
only be withheld if the public interest in maintaining the exemption
outweighs the public interest in disclosure.

Factors in favour of maintaining the Factors in favour of disclosure
exemption
Fundamental principle at common law General principle of disclosure of
that a client is entitled to receive information under FOI
confidential advice from a lawyer
HIGH
HIGH
The ability to obtain full free and Transparency of administrative
frank legal advice is fundamental to actions and decision making within a
the administration of justice public authority  

HIGH HIGH
The advice from the legal officer was
solely for the client and provided in
confidence. Further disclosure  was
not contemplated and is not for third
parties HIGH

The factors against disclosure are all HIGH in terms of maintaining the
exception and there are two factors in favour of not maintaining the
exception and these are both HIGH. In all the circumstances of the case,
the public interest in maintaining the exception outweighs the public
interest in disclosing the information.

In respect of the additional test “would adversely affect”, if legal
advice is disclosed, the disclosure would cause general harm to the
principle of LPP and this on its own is sufficient to meet the “would
adversely affect” test.

Disclosure of part of the legal advice is not a possible consideration
because even partial disclosure is against the principle of legal advice
privilege.

Section 40 – Personal Data

Minor redaction of personal data relating to the correspondents has been
redacted under Section 40 (2) of the Freedom of Information Act 2000.

Section 40(2) provides an exemption from disclosure if that disclosure
would contravene one of the data protection principles in the DPA.   If
the disclosure is unfair then it would contravene the first data
protection principle and the information is exempt from disclosure under
section 40(2) of the FOIA. Even if the disclosure is considered to be fair
and meets a condition in Schedule 2 of the Data Protection Act, the
disclosure must still be lawful in order to comply with the first data
protection principle.

 

The Council considers that the information is exempt from disclosure under
subsection 40 (2) for the following reasons:

 

1.    The requested information is the personal data of a third party,
namely the individual correspondents. The definition of personal data is
taken from Section 1 of the DPA.

 

It is the Council’s view that: - 

 

·         Disclosing the data would be unfair to the individual concerned,
 

·         Disclosure is considered incompatible with the purpose for which
the information was gathered.

 

2.    The Data Protection Act Principles - the council considers that
disclosure will contravene the first data protection principle, which
states that “ personal data shall be processed fairly and lawfully, and in
particular, shall not be processed unless –

 

(a)  At least one of the conditions in schedule 2 is met, and

(b)  In the case of sensitive personal data, at least one of the
conditions in Schedule 3 is also met.”

 

The Council considers that disclosure will be unfair, as the requested
information held in relation to the individual was not intended for wider
public disclosure. 

 

I trust this answers your enquiry.

 

The Council considers that your request has been answered in full by
either confirming that information is not held, providing you with the
information requested, or explaining why any information has been withheld
and the reasons for any redaction.    Where applicable, the Council has
also told you the reasons for the delay in responding to your request.

 

If you are unhappy with the way your request for information has been
handled you can request a review by writing to the Solutions Team within

40 working days from the date of the Council’s response.  You are entitled
to a review by the Council if:

·         You are dissatisfied with the Council’s explanation of why the
application was not dealt with within the 20 working day time limit.

·         All the information requested is not being disclosed and you
have not received an explanation why some information is not being
disclosed.

·         A reason for the disclosures under the request being refused is
not received.

·         You consider that exemptions have been wrongly applied, and/or

·         You consider that a fee has been wrongly applied.

Please set out your grounds for seeking a review together with what
specific part of your request those grounds apply to and the outcome you
are seeking.  The Council reserves the right to ask you for clarification
of the grounds for your review request if the grounds are not clear, and
to delay commencing the review if such grounds are not provided.

 

The Solutions Team can be contacted by email via: 
[1][Cheshire West and Chester Council request email] or at the following address:

 

Solutions Team

Cheshire West and Chester Council

HQ

58 Nicholas Street

Chester

CH1 2NP

 

The Solutions Team will acknowledge a request for an internal review
within 5 working days and complete the review as soon as possible and no
later than 40 working days from receipt of the request.

 

More information about the Council’s internal review process can be found
via:
[2]http://www.cheshirewestandchester.gov.uk...

 

If you remain dissatisfied following the outcome of your review, you have
a right of appeal to the Information Commissioner at:

 

The Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

Telephone: 08456 30 60 60 or 01625 54 57 45

Website: [3]www.ico.gov.uk

 

There is no charge for making an appeal.

 

Yours sincerely

 

Miriam Wallace

Solutions Team

Cheshire West and Chester Council

 

 

 

 

From: FOI West
Sent: 29 April 2014 14:44
To: '[FOI #204160 email]'
Subject: 1919118 Freedom of Information request - Legal dept.

 

Dear Mr Kelly

 

Thank you for your request for information of 27 March 2014 which was
received on 28 March 2014 and therefore due by deadline of today, 29 April
2014.  It  has been logged as 1919118 and has been dealt with under the
Freedom of Information Act 2000.  I confirm that Cheshire West and Chester
Council hold information relating to your request and am able to provide
you with the following response.

 

For the purpose of clarity,  I have reproduced your request and append the
answers beneath each question:

 

1)Can you confirm that the council legal dept are aware of the ruling
issued by the local government ombudsman concerning

head H fees....It may help them if i post the link for you.

 

[4]http://www.lgo.org.uk/GetAsset.aspx?id=f...

 

This is not considered to be a valid request under the FOIA as it is not
a request for recorded information. 

 

2)Are the council planning to contact the people wrongly charged?

 

This is not considered to be a valid request under the FOIA as it is not
a request for recorded information. 

 

3) Is there Or has been any correspondence between the council and the
bailiff company's regarding the Use of Head H fees In the last twelve
months.

 

Yes.  The timeframe the Council used to identify, locate and extract
relevant recorded information was 28 March 2013 to 27 March 2014.

 

4)If so can you disclose these documents?

 

I can confirm that there are 4 documents that fall within the remit of
your request, i.e correspondence between the Council and the bailiff
companies regarding the use of Head H fees in the last 12 months 28 March
2013 to 27 March 2014.  However we believe that we need further time to
consider exemptions, including legal professional privilege and to
consider the public interest in disclosing the information.  We estimate
that we will have reached a decision on or before 29 May 2014 and we will
write to you then.

 

I trust this answers your enquiry.

 

The Council considers that your request has been answered in full by
either confirming that information is not held, providing you with the
information requested, or explaining why any information has been withheld
and the reasons for any redaction.    Where applicable, the Council has
also told you the reasons for the delay in responding to your request.

 

If you are unhappy with the way your request for information has been
handled you can request a review by writing to the Solutions Team within

40 working days from the date of the Council’s response.  You are entitled
to a review by the Council if:

·         You are dissatisfied with the Council’s explanation of why the
application was not dealt with within the 20 working day time limit.

·         All the information requested is not being disclosed and you
have not received an explanation why some information is not being
disclosed.

·         A reason for the disclosures under the request being refused is
not received.

·         You consider that exemptions have been wrongly applied, and/or

·         You consider that a fee has been wrongly applied.

Please set out your grounds for seeking a review together with what
specific part of your request those grounds apply to and the outcome you
are seeking.  The Council reserves the right to ask you for clarification
of the grounds for your review request if the grounds are not clear, and
to delay commencing the review if such grounds are not provided.

 

The Solutions Team can be contacted by email via: 
[5][Cheshire West and Chester Council request email] or at the following address:

 

Solutions Team

Cheshire West and Chester Council

HQ

58 Nicholas Street

Chester

CH1 2NP

 

The Solutions Team will acknowledge a request for an internal review
within 5 working days and complete the review as soon as possible and no
later than 40 working days from receipt of the request.

 

More information about the Council’s internal review process can be found
via:
[6]http://www.cheshirewestandchester.gov.uk...

 

If you remain dissatisfied following the outcome of your review, you have
a right of appeal to the Information Commissioner at:

 

The Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

Telephone: 08456 30 60 60 or 01625 54 57 45

Website: [7]www.ico.gov.uk

 

There is no charge for making an appeal.

 

Yours sincerely

 

Ruth Winson

Solutions Team

Cheshire West and Chester Council

 

 

 

show quoted sections

Arnold Layne (Account suspended) left an annotation ()

Bristow & Sutor's email response:

"Nothing Has changed, no-one has ever dared challenge it in court. It is easy for people to spout on the internet, less so to convince a judge of their half baked ideas."

Bristow & Sutor are duping Cheshire West and Chester council with the misconception that just because "seized" requires no removal that this idea can be adapted to raising a fee for making available goods for collection (Head H). This is exactly how North East Lincolnshire Council pulled the wool over the eyes of Humberside Police.

http://www.consumeractiongroup.co.uk/for...

The definition of "seized" which may apply to goods kept on the debtor's premises (Evans v South Ribble 1991) is a different issue. What they are unwilling to acknowledge is that "seized goods" can not refer to goods that are seized, via for example, a walking possession agreement (WPA) for the purposes of raising a head H. It is not in dispute that "seized goods" can refer either to goods secured via a WPA or those removed from the debtor's premises, however, those secured by WPA can not be made available for collection, so "seized" – for the purpose of raising a fee under head H – refers only to seized goods which have been removed.

Jacobs response to Cheshire West and Chester's enquiries (although redacted) may be referring in its email, to the legal opinion brought to light in the thread: Councils (Ross & Roberts) opinion.....

The following quote makes you think that Jacobs are confident that the Police will never consider there a criminal element whilst an avenue also exists in Civil litigation to challenge the Statutory Instrument.

"Ultimately only a Court can decide the above and as the new Regulations come in on 6th April I can't see the above will ever have be tested in a Court (if these people really thought they had a case they would have done by now) which means all the assumptions made in the article and foi are just arguments but not law."

geoff kelly left an annotation ()

Thanks...What is needed is a legal challenge..How we get that is the problem...I will keep plugging away..

Arnold Layne (Account suspended) left an annotation ()

There may be some relevance to NELC taking the decision not to charge any more head H fees from May 2013.

Select either cell G14 or G15 of the spreadsheet and note the annotation:

http://www.nelincs.gov.uk/GetAsset.aspx?...

"Please Note: Bailiffs acting for North East Lincolnshire Council ceased to charge Header H fees in May 2013 "