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Thread: Misallocating payments and ignoring email to exploit Magistrates court costs

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  1. #151
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    Default Re: Misallocating payments and ignoring email to exploit Magistrates court costs

    Local Govermnent
    OMBUDSMAN

    30 June 2017

    Your ref:
    Our ref:
    17 003 081
    (Please quote our reference when contacting us
    and, if using email, put the number in the email subject line)

    If telephoning please contact: 0330 403 4682
    email address: J.Gooch@coinweb.lgo.org.uk


    Dear Mr outlawlgo

    Complaint against North East Lincolnshire Council

    Thank you for the comments you made in response to my draft decision. I considered what you said and I have made some changes to the decision statement to reflect some of your points. However, I was not persuaded to alter my view.

    I have decided not to investigate your complaint. The enclosed statement sets out my decision and explains my reasons for it. I have now closed your complaint.

    As required by the law, I have sent a copy of the complaint and the decision to the Council.

    We normally destroy our record of your complaint 12 months after the date of our decision, except for the decision letter and statement of reasons which we will destroy after five years.


    Yours sincerely

    Jeanette Gooch
    Investigator

  2. #152
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    Default Re: Misallocating payments and ignoring email to exploit Magistrates court costs

    Local Govermnent
    OMBUDSMAN
    30 June 2017

    Complaint reference:
    17 003 081

    Complaint against:
    North East Lincolnshire Council

    The Ombudsman’s final decision

    Summary: The Ombudsman will not investigate this complaint about a liability order from 2015. This is because there is insufficient evidence of fault by the Council and because the matters have been considered in court.
    _________________________________________________

    The complaint

    1.
    The complainant, whom I refer to as Mr X, complains that the Council will not apply to the court to quash a liability order from 2015.

    The Ombudsman’s role and powers


    2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)

    3.
    We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)


    How I considered this complaint


    4.
    I read the complaint and documents provided by Mr X. I considered Mr X’s previous complaints to the Ombudsman and comments he made in response to a draft of this decision.


    What I found
    Previous complaints to the Ombudsman

    5.
    In 2013 and 2016 Mr X complained about court costs, of £60, that he incurred in 2012. The Ombudsman decided not to investigate the complaints because Mr X had started legal action about the court costs. The Ombudsman cannot investigate any complaint about something which has been the subject of legal proceedings.

    Council Tax Payments

    6. People should pay their council tax as billed. If they do not pay the exact amount which is stated on the bill the system allocates the payment to any debts that may exist. If the person does not keep their council tax payments up to date then the Council can apply to the court for a liability order. A liability order is a court order confirming the person must pay the council tax and the costs.

    What happened – current complaint

    7.
    In 2012 Mr X incurred court costs, related to council tax, of £60. Mr X disputed the £60 and started legal action in the High Court. The Council suspended recovery of the £60. The Council then saw a letter which Mr X sent to the court in November 2013. The letter said, “...please take this as formal notice that I am withdrawing the judicial review claim”. The Council lifted the hold but did not take any recovery action.

    8.
    In 2015/16 Mr X was required to make monthly instalments of £91 a month. Mr X made regular payments but he did not pay as billed. The system allocated most of one payment to the £60 debt from 2012.

    9.
    Mr X continued to make payments but he did not pay enough to cover the £60. The Council issued a reminder and a summons asking him to pay £424. Mr X did not do so. There was a liability hearing in 2015. Mr X attended the hearing and raised a defence before a district judge. Mr X argued that he did not have arrears because the Council had allocated the payment to the wrong account/year. Mr X also argued that the Council should not have used the payment for the 2012 debt because it was subject to a court case. The Council told the judge that Mr X had withdrawn the court case and it referred to Mr X’s letter of November 2013. The court granted a liability order in 2015.

    10. In 2017 the court service upheld a complaint Mr X had made about the handling of his application to the High Court. Mr X says this proves he did not withdraw the court case in 2013. Mr X asked the Council to apply to the court to cancel the 2015 liability order. He wants the £60 transferred to his account for 2015/16 and the costs from the 2015 court action cancelled. The Council declined to apply to quash the liability order. Mr X complains that the Council will not accept a complaint about its decision not to apply to quash the liability order.

    Assessment

    11.
    I cannot investigate any matter linked to the £60 costs from 2012 because Mr X started legal action. I have not seen any document which states Mr X is not liable to pay the 2012 costs.

    12. I will not investigate the Council’s decision not to ask the court to quash the 2015 liability order. This is because there is insufficient evidence of fault by the Council. The Council applied for a liability order which the court issued after considering the points raised by Mr X. This included a consideration of how payments are allocated and why the Council lifted the hold on recovery. The court was satisfied the arrears were due and the recent decision from the court service does not affect the issue of liability in 2015.

    13. In addition, the summons was for £424. The dispute about the £60 costs does not cover the full amount of the arrears and the judge was not persuaded by Mr X’s argument about the allocation of payments. There is no suggestion of fault in the Council’s decision not to apply to quash the liability order or cancel the costs.

    14. Mr X complains that the Council will not investigate his complaint about its decision not to contact the court about the order. However, the Council’s view is that this matter was concluded in court, in 2015, and the matter is closed. I will not investigate this decision because I have not seen any evidence that questions why the Council served a summons in 2015 or suggests that matters were not concluded in 2015. If Mr X thought the court should not have issued the liability order then he could have taken legal action, in 2015, to apply to have it set aside.

    Final decision

    15. I will not start an investigation because there is insufficient evidence of fault by the Council and because most of the issues have been considered in court.

    Investigator’s decision on behalf of the Ombudsman


    _________________________________________________

    Final Decision
    Last edited by outlawlgo; 1st July 2017 at 06:20:AM.

  3. #153
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    Default Re: Misallocating payments and ignoring email to exploit Magistrates court costs

    Application to the Local Government Ombudsman (LGO) for a review of its Final Decision (30 June 2017) No 17 003 081.

    12 July 2017

    1. The Council’s Statement of Truth and supporting papers which were identified as 'NELC1' to 'NELC13' provide conclusive evidence that the fault which has led to an inordinate amount of injustice could have been avoided had the council not made the error it made before it took recovery action in the Magistrates’ court.

    2. The letter referred to in paragraph 7 the Ombudsman’s final decision (see below) did not give a credible reason for the Council to have believed that the costs were no longer being disputed, thus justifying its decision to lift the suspension of the costs.

    ‘The Council then saw a letter which Mr X sent to the court in November 2013. The letter said, “...please take this as formal notice that I am withdrawing the judicial review claim”. The Council lifted the hold but did not take any recovery action.’

    The Ombudsman evidently referred to the Council’s Witness Statement to assist his decision making. The relevant paragraphs of that Witness Statement (see below) provides overwhelming evidence that the Council had lifted the suspension of the costs on the bases that it believed the withdrawn appeal related to a “review of the costs”.

    68. The Council is aware that the defendant has taken matters further with regards to disputing the £60.00 costs incurred from November 2012.

    69. Correspondence received from the defendant as of 20th November 2013 stated that he had withdrawn his application for the Judicial review of the costs (NELC12)

    70. Given this the Council no longer held action in attempting to recover the outstanding amount.
    ………..

    73. As of the letter from the Defendant regarding his withdrawal of the Judicial review North East Lincolnshire Council had no further reason to believe that the costs were being disputed and the allocation of unspecified amounts was made in accordance with Peters V Anderson.

    3. The appeal disputing the costs was a Case Stated appeal, not a judicial review claim which the November 2013 letter referred to. There were two separate High Court matters, which the Council was well aware of; one a Case Stated appeal disputing the costs and the other, a judicial review claim for a mandatory order.

    4. The letter, therefore gave no cause to lead the Council to believe that the High Court appeal (case stated) challenging the summons costs had been withdrawn. The judicial review claim, which was a separate matter from the application to state a case for an appeal challenging the costs, was merely the vehicle used to address the difficulties faced by the Magistrates in stating the draft case. The judicial review claim therefore was for a mandatory order, not a 'review of the costs' and so the case stated appeal challenging the summons costs had never been withdrawn.

    5. The November 2013 letter was in response to the Administrative Court's recommendation to withdraw the judicial review claim as the process had prompted the Magistrates to produce a draft case in respect of the appeal for which the costs had been suspended (Case Stated appeal) and deemed there no longer a need for further action on their part as the process of stating a case was underway. As far as the parties were aware, the Case Stated appeal was back on track and could theoretically progress to the next stage which was in any event clear from the context of the November 2013 letter. The subsequent letters and emails referred to in my comments on the draft, re Pursuing appeal correspondence, made it categorically clear that the appeal was being pursued if there was any genuine previous misunderstanding by the Council.

    6. The Council erroneously lifting the suspension of the costs can not simply be attributed to a misunderstanding arising from the withdrawal of the claim for a mandatory order. The exhibits supporting the Witness Statement provided conclusive evidence that Council’s claim that it had no further reason to believe that the costs were being disputed was dishonest. Exhibit NELC12 (see appended) contained the contents of the 20 November 2013 letter withdrawing the claim for a mandatory order and the Administrative Court's response dated 25 November. The letters were not copies of the original; it can be confirmed beyond reasonable doubt that the contents were obtained from the same source that recorded publicly everything relevant to the matter. The source was a public help forum dealing with council tax issues, the same forum which the Council had sourced the contents of another of its exhibits.

    7. The letters contained in exhibit NELC12 had been redacted and matched the entries that were posted on the public forum (see appended screen shots). The forum is the only place from which those letters could be sourced in that redacted form. The characteristics of the letters from which the Council formed its view that the appeal had been withdrawn were identical to the forum posts.

    8. The Council had evidently relied on the website to keep abreast of developments as all correspondence connected with the proceedings (albeit redacted) where conveniently in one place. It would therefore have been informed from the regular updates posted that the case stated appeal was still being pursued. Even if the forum was not regularly consulted it is enough that the Council had done on the occasion it learned that the mandatory order had been withdrawn that its claim was dishonest, i,e. that it believed the costs were no longer being disputed. The crux of the matter is that the post from which the content was sourced (see appended screen shots) was accompanied with the commentary, below, which is proof in itself:

    Back almost to square one.

    Although the judicial review claim for mandatory order was not entirely successful in mandating the Magistrates' Court to state the case (other than the draft), it would never have been known there was a possibility to negotiate the terms of a recognizance at the hearing. It took this process to prompt a response from the Justices at Grimsby Magistrates' Court.

    The next move then will be to arrange to appear before the Magistrates’ Court to agree terms of a recognizance
    .”

    9. The Council’s fault was to misallocate payment to a disputed sum based upon a dishonest claim which has been proved conclusively. Clearly if the Council had not been at fault the court proceedings could have been avoided. Crucially the Ombudsman may remedy distress caused by receiving a wrongly issued summons, regardless of whether the complainant attended court (City of York Council, decision ref: 16 014 507).

    Conclusion

    10. On one level it is immaterial to my complaint whether dishonesty had been involved or that there may have been a genuine misunderstanding by the Council. The complaint concerned the Council refusing to take the appropriate steps in remedying its mistake which it had undeniably made. The provision enabling magistrates' courts the power to quash liability orders where there is no dispute about the facts has been purposely enacted for these circumstances. However, the Council must make the application, and for refusing to even consider doing so is at fault.

    11. On another level the Council’s dishonesty is very relevant because the Ombudsman has expressed that he will not investigate the Council’s decision not to ask the court to quash the 2015 liability order on the basis that there is insufficient evidence of fault by the Council. The review request should have no trouble satisfying the Ombudsman that there is sufficient evidence of fault by the Council.
    Last edited by outlawlgo; 13th July 2017 at 06:52:AM. Reason: Added links

  4. #154
    Join Date
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    Default Re: Misallocating payments and ignoring email to exploit Magistrates court costs

    Local Govermnent
    OMBUDSMAN

    18 July 2017

    Your ref:
    Our ref:
    17 003 081
    (Please quote our reference when contacting us
    and, if using email, put the number in the email subject line)

    If telephoning please contact: 0330 403 4057
    email address: R.Draper@coinweb.lgo.org.uk


    Dear Mr outlawlgo

    Complaint against North East Lincolnshire Council

    Thank you for your email of 12 July (which we received on 13 July). I have noted your request for a review of Jeanette Gooch’s decision of 30 June 2017.

    The papers will be passed to Rob Draper, an Assessment Team Leader who has had no prior involvement in the complaint. He will try to respond to your request by Thursday 10 August which is within 20 working days of receipt.

    In the meantime, thank you for your patience.

    Yours sincerely

    Keith Nevols
    Assessment Team Coordinator

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