Council Tax Liability Order Applications Court Costs – Test Case

[outlawlgo]

Re: Council Tax Liability Order Applications Court Costs – Test Case

IN THE MATTER OF COMPLAINT TO THE
LOCAL GOVERNMENT OMBUDSMAN UNDER
THE PROVISION OF PART III OF THE LOCAL
GOVERNMENT ACT 1974

21 January 2016

(postponed from January 2015)

COMPLAINT AGAINST
NORTH EAST LINCOLNSHIRE COUNCIL

Supporting documents (“SD”) listed below are in the order first referred to in this complaint. It is important that all are to hand, and a copy requested in the case of any missing document:

LIST OF SUPPORTING DOCUMENTS (SD)
(in order of occurrence in complaint)

No#	DATE	DESCRIPTION	FILE NAME
1	19/7/13	Bailiff fee fraud allegations (FOI data redemption fees)	FOI data 19 July 2013.pdf
2	24/7/13	Bailiff fee fraud allegations (FOI data vehicle fees)	FOI data 24 July 2013.pdf
3	15/3/14	Formal Complaint	Formal Complaint – 15 March 14.pdf
4	14/7/14	Formal Complaint (supplementary letter	Formal Complaint – 15 March (14 July) 14.pdf
5	15/9/14	Councils Final Decision to formal complaint	Council response 15 Sept 2014.pdf
6	June 2013	Guidance to local councils on good practice in the collection of Council Tax arrears	Guidance on enforcement of CT arrears.pdf
7	22/4/14	Request for certificate of refusal to state a case for an appeal to the high court	Cert - refusal to state case 22 April 2014.pdf
8	Various	Letters to head of revenues -Auditor - evidence for Magistrates’ court between 16 September – 17 October 2012 reference: NG/CTR/12912	Evidence 16 Sept – 17 Oct 2012.pdf
9	22/11/12	Application to state a case for an appeal to the high court	Application to appeal to high court.pdf
10	–	Chronology of events (case bundle draft document – high court application)	Chronology draft.pdf
11	8/2/13	Refusal to apply to have court order quashed	20130208 NELC.pdf
12	14/2/13	Disputing order was correctly obtained	T – S & L Order Feb 14 2013.pdf
13	28/7/14	Formal Complaint (escalate to final stage)	Formal Complaint – 15 March (28 July) 14.pdf
14	21/2/11	Explanatory Memorandum to The Council Tax and Non-Domestic Rating (Amendment) (Wales) Regulations 2011	Explanatory Memorandum Regulations 2011.pdf
15	17/2/14	Review court costs to mitigate risk of exceeding expenditure and being legally challenged	Review of Council Tax court costs.pdf
16	–	Leicester City Council’s court costs calculation 2011-12	Costs calc 2011 12 Leicester.xls
17	April 09/10	South Gloucestershire Council’s costs calculation 2009 and 2010	SGC cost calculation 09 and 10.TIF
18	–	Great Yarmouth Borough Council’s costs Calculation 2014-15	Court Costs increase 2014 15.xls
19	5/9/13	Business Rates summons fraud	Business Rates summons fraud 05 Sept 2013.pdf
20	19/8/13	Draft case stated for appeal to the high court and Representations made on the case	Case stated Draft representation.pdf
21	20/9/12	Refusal to correspond further	20120920 NELC.pdf
22	–	Grounds of appeal (case bundle draft document – high court application)	Grounds of appeal.pdf
23	–	Consent Order (case bundle draft document – high court application)	Consent order.pdf
24	–	Skeleton Argument (case bundle draft document – high court application)	Skeleton Argument draft.pdf
25	6/5/15	High court Judgment in the matter of an appeal of Council Tax court summons costs	R (on the application of Reverend Nicolson) v Tottenham Magistrates.doc
26	2/9/14	Complaint to Advisory Committee (Magistrates / Justices Clerk’s conduct)	Judicial complaint 2 Sept 2014.pdf

Introduction

1. This is a complaint under the provision of Part III of the Local Government Act 1974 (the “Act”) against North East Lincolnshire Council (“NELC”) being an Authority subject to investigation pursuant to section 25 of the Act.

2. The concerns raised in this complaint are matters of general public importance including issues concerning the Ministry of Justice, for which the LGO has no direct jurisdiction. It is therefore suggested that the main body of the complaint and the matter of the Magistrates’ court perverting the course of justice are jointly investigated in conjunction with the Parliamentary Ombudsman under powers granted by 2007 Regulatory Reform legislation.

3. .......

.......

What do you think the body should do to put things right?

......

167. As it is unlikely these failings are unique to NELC, it would mitigate the sense of aggrievement in respect of the inordinate amount of time that has been wasted, if lessons learned from this complaint are also learned by all local authorities and other government departments which similarly cause hardship for members of the public. Considering the destructive effect such failings can have on people’s lives (including health), there would be merit in debating in parliament the difficulties members of the public face dealing with public bodies (see below para 171).

168. The outcome is not one that is solely seeking to resolve the issues. It is also reasonable that an offer is made for compensation. However, any consolatory payment, whatever level will go nowhere near a realistic sum to compensate for the hundreds of hours spent as a consequence of these circumstances over a period which is over three years.

169. On account of the considerable amount of time I have put into addressing these concerns voluntarily, it is reasonable to ask that I’m updated regularly with any details of improvements or new policies which are put into place as a consequence of highlighting the negligence and error.

170. Ideally a role would be created so that every local authority has an accountable person to ensure matters like these are never allowed to remain unresolved indefinitely. That person would be responsible for ensuring taxpayers affected are not left spending considerable amounts of their life battling to no end. If such a role does in fact exist within local government, then that person in respect of NELC should be held to account and appropriate action taken against him.

171. In order that the Government is seen to be serious about reforming mismanagement in councils (and HM Court Service), it would be appropriate for parliament to consider enacting new or amending existing legislation so that matters as serious as these are punishable with a custodial sentence. Where an individual faces the prospects of being given a criminal record and consequently having this go against them when seeking other employment, the introduction of custodial sentences would likely be an effective deterrent against improper conduct.

172. The threat of a criminal record could also be what is needed for a would-be offender to think twice about using their public office to carry out personal vendettas and that it is unacceptable and disproportionate to subject an aggrieved taxpayer to such gross injustice and inconvenience for the relatively small matter of losing face by admitting and remedying errors. It would also focus minds that to cause someone gross injustice is an unacceptable trade off for covering up mismanagement just to avoid, for example, an upheld complaint that might adversely affect performance targets etc.

173. The way in which NELC investigates its formal complaints is clearly in a manner which best interests itself. It goes without saying that for residents taking the trouble to raise concerns to be duped like this have been subjected to nothing less than unjust charade. It would therefore benefit residents of North East Lincolnshire if an independent body were to oversee the complaints process, ensuring the investigation is conducted impartially. The current arrangement serves no purpose other than for officers engaged in the process to cover up failings for their colleagues.

174. It is feasible there has been deliberate intent to cause gross inconvenience. If it is found that an officer has used their public role to indulge in their own personal perverse gratification, the police should be forwarded details to consider the prospects of a criminal prosecution.

Annex A

.......

[Adamna]

Re: Council Tax Liability Order Applications Court Costs – Test Case

Another case won in the High Court (council tax liability order costs).

Ewing v Highbury Corner Magistrates Court & Anor [2015] EWHC 3788

Interesting stuff. That link doesn't seem to be working. This did http://www.bailii.org/ew/cases/EWHC/...2015/3788.html

[outlawlgo]

Re: Council Tax Liability Order Applications Court Costs – Test Case

Local Govermnent
OMBUDSMAN

9 February 2016

Mr outlawlgo

Your ref:
Our ref: 15 016 673
(Please quote our reference when contacting us and, if using email, put the number in the email subject line)

If telephoning please contact: 0330 4034279
email address: C.Oxley@coinweb.lgo.org.uk

Dear Mr outlawlgo

Complaint against North East Lincolnshire Council

The Ombudsman has asked me to assess your complaint to see if it is about a matter we can or should investigate.

Based on the information I currently have which includes the papers you sent me and the remaining details of your previous complaint to us, my current view is that we cannot investigate your complaint.

Your complaint concerns the reasonableness of costs added to your council tax account following the serving of a summons in September 2012 and the issue of a liability order by the Magistrates court in November 2012. You disputed the validity of the costs and paid £10 which you considered a reasonable reflection of the true cost. You also contest the court’s decision to grant the liability order.

You have pursued an appeal to the High Court about this matter but say that to date you have not had the success which you sought. This has led to considerable expense of time and money. I have read your views on the Ombudsman’s jurisdiction and why you feel that that it is still possible to investigate your complaint against the Council. I must inform you at this stage that this is something of a simplification of the Ombudsman’s role and that there are several reasons why we would not investigate this matter now.

With regard to time you feel that delays by the court led to your complete complaint being delayed in 2015 but that it falls approximately within the 12 month cut off. In fact your entire complaint stems from the Council’s decision to charge a summons fee which you disputed in 2012 and which led to the liability order. The time limit to which you refer in your letter relating to section 26(4) of the Local Government Act (now 26(B)) relates to when the person affected became aware of the alleged fault in question. This is certainly the actions of September/November 2012, which led to your original complaint to the LGO in May 2013. Whilst your original complaint was within the 12 month time period allowed for a complaint, it was nearly four years from where we are now.

It is likely that had you come back with your complaint which was considered premature within the few months required for a reply, it would have been rejected as it concerned a point of law. You have referred to the Ombudsman’s special report on bailiff’s fees and their reasonableness. The matter which you have raised is more complex and is complicated by it being accepted by the Magistrate’s Court.

In addition, the very issue on which you have based your entire complaint and the legal undertakings which you have become involved in amounts to some £60 only. The Ombudsman provides a free service but she must use public resources carefully. Had your complaint been in jurisdiction on the above mentioned grounds it still leaves a serious question as to whether the injustice which you would have claimed at the time in 2012 would warrant investigation. Clearly you have gone to some considerable expense in time and money since then but this was your own choice.

Any member of the public who receives a relatively minor penalty for dog-fouling or parking violations may either pay the penalty or challenge its validity in the courts. The risk is that the eventual outcome may be unsuccessful but the cost may be significantly greater than the original penalty. The fact that this matter is unresolved some four years after the event is due to your own decision to continue pursuit of an outcome at the High Court. For the LGO the matter would have been outside jurisdiction some years ago and had you resubmitted your 2013 complaint promptly this would have been made clear to you at the time. It may also have been considered to be of insufficient injustice to warrant an investigation.

Before I make any decision, I should welcome your comments on what I say in this letter. If you do wish to comment, please ensure that I receive your response by 18 February. If I have heard nothing by then, I will make a formal decision not to investigate your complaint for the reasons explained above. If you need more time to comment, please explain why this is and I will consider your request.

Yours sincerely

Colin Oxley
Investigator

[Crazy council]

Re: Council Tax Liability Order Applications Court Costs – Test Case

colin oxley his name, i dealt with him. He was under Anne Seex http://ombudsmanwatchers.org.uk/ombuds/anne_seex.html at the york office of the lgo.

we should get ours heads together and give him some numbers

In addition, the very issue on which you have based your entire complaint and the legal undertakings which you have become involved in amounts to some £60 only. The Ombudsman provides a free service but she must use public resources carefully. Had your complaint been in jurisdiction on the above mentioned grounds it still leaves a serious question as to whether the injustice which you would have claimed at the time in 2012 would warrant investigation. Clearly you have gone to some considerable expense in time and money since then but this was your own choice.

60 * 10,000 per year, since 2005 ( rounded for ease ) since 2005 ( 10 years ) 6 million, owed back to public just from out backwater council.

( proper costs of liability orders, goes between £ 8 and £ 17 over the 10 years , and that is as accurately accounted for as possible, ), its currently between £12-13 at nelc.

further, am fairly sure the documentation between the monitoring officer, and the court, is insufficient between 2008-sept 2013 in relation to the charges for LOs, theres some technical requirements in the rules on the documentation that havent been done properly.

[outlawlgo]

Re: Council Tax Liability Order Applications Court Costs – Test Case

[MENTION=15129]Crazy council[/MENTION]

The LGO has completely missed the point. It has failed to recognise the injustice in terms of the gross inconvenience caused by the unlawful costs since. NELC has started recovery a further three times since because of misallocating payments to that sum.

There are approaching 30 documents in total to support the complaint and the LGO has not asked for one of them, yet it has made a preliminary decision (which is unlikely to change) not to investigate the maladministration.

I know how the LGO operates and knew it would apply legislation to justify rejecting the complaint, so in anticipation I made sure every angle was covered before hand. Obviously this causes them no embarrassment whatsoever.

[outlawlgo]

Re: Council Tax Liability Order Applications Court Costs – Test Case

From: outlawlgo
To: @lgo.org.uk
Sent: February 10, 2016
Subject: Re: Confidential: Case ID - 15016673


Dear Mr Oxley

Re: Complaint 15 016 673

Thank you for your draft decision dated 9 February 2015.

It is noted that the LGO has not requested the documents which support the complaint and are referenced throughout. My representations were submitted via the LGO's website which enables only one attached document. It was necessary therefore to make a decision which to submit and as my complaint was set out on a separate document there was little choice but to attach that. I expected the LGO would request the supporting documents and provide an email address to which they could be sent electronically, but that never happened.

The LGO therefore, to my knowledge, is not in receipt of North East Lincolnshire Council's final response to the relevant formal complaint. The Council's final response was the document requested on the website (assuming the complaint would be set out on the online form rather than separately attached). Basing the amount of content missing, in terms of the number of documents, that amounts to roughly 96% of the complaint which the LGO does not hold. I am therefore asking that the 18 February date, by which I'm expected to submit my comments, is set to some time later to allow consideration of the complaint along with the supporting documents which the LGO did not hold whilst initially considering the submission.

There are some concerns about the direction being taken with which the LGO seeks to justify avoiding investigating the maladministration. For example, emphasis is being put on the matter involving only £60 and that the complaint and litigation engaged in has been my own choice. Apart from the issue amounting to billions of pounds when scaled up, there is a danger of sending out the message that the LGO endorses a certain amount of theft by the state, providing it is kept below a certain level, owing to the disproportionate costs of pursuing matters in the courts – be that in time or money. Of course that is not acceptable but if it was, would it be ethical to put a figure, below which the theft is acceptable?

Such attitude also runs the risk of showing acceptance of our justice system not serving the ordinary person who has no means with which to pursue justice when public bodies take such liberties and is so designed to benefit only certain classes of society.

Please let me know if you require the supporting documents sending so the whole complaint can be considered and if so a new date for my comments.

Yours sincerely

[outlawlgo]

Re: Council Tax Liability Order Applications Court Costs – Test Case

Local Govermnent
OMBUDSMAN

15 February 2016

Mr outlawlgo

Your ref:
Our ref: 15 016 673
(Please quote our reference when contacting us and, if using email, put the number in the email subject line)

If telephoning please contact: 0330 4034279
email address: C.Oxley@coinweb.lgo.org.uk

Dear Mr outlawlgo

Complaint against North East Lincolnshire Council

As you know I have been considering your complaint against the Council on behalf of the Local Government Ombudsman. I sent you my initial decision on your complaint, and I have considered your comments on it in reply. I have now decided not to investigate your complaint.

I explained in my letter that there are a number of reasons why I consider your complaint to be outside our jurisdiction. From your previous complaints to the LGO on this matter it is clear that this matter has been considered in the past and your latest complaint is about the same matter. If you wish to challenge the legal understanding of what are considered to be reasonable recovery costs then you must do so in the courts. You applied to the High Court on two occasions and although you have not obtained a successful outcome the matter is outside our jurisdiction for these reasons as well as on the basis of time expired.

You suggested that the LGO has not considered the extensive material which you hold on this matter. You submitted a complaint which ran to some 62 pages which is more than many complainants provide during a detailed investigation. This document, together with your previous complaints is sufficient to show that this is not a matter which we would investigate now. Any further material would be irrelevant to the jurisdictional points which I explained to you.

With regard to any decision about de minimis complaints in terms of financial loss it is a matter for the Ombudsman to decide if a matter should be investigated. Section 24A of the Local Government Act 1974 gives the Ombudsman a general discretion to decide if she should investigate a complaint. Many complaints concern very minor injustice and also small financial penalties which would make expenditure of public funds inappropriate in terms of investigation.

In the case of your complaint the other jurisdictional barriers mean this question is not one which needed to be considered but in similar cases which fall within jurisdiction that question of injustice is one which would require consideration. Before I make a final decision, I should welcome your comments on what I say in the draft decision. Please also take this opportunity to point out any factual errors in the draft decision.

If you do wish to comment on the draft decision, please ensure that I receive your response by 24 February. If I have heard nothing by then, I will make a formal decision not to investigate your complaint for the reasons explained in the draft decision. If you need more time to comment, please explain why this is and I will consider your request.

You will see that I have referred to you as Mr X. This is because we have a commitment to publish all of our decisions on our website if possible. If you consider that publication of the decision will identify you, please explain why this is and we will consider whether to make an exception to our normal policy.


Yours sincerely

Colin Oxley
Investigator

[outlawlgo]

Re: Council Tax Liability Order Applications Court Costs – Test Case

Local Govermnent
OMBUDSMAN

15 February 2016

Complaint reference:
15 016 673

Complaint against:
North East Lincolnshire Council


The Ombudsman’s draft decision

Summary: Mr X complained about the Council’s summons and liability order charges for recovery of unpaid council tax in 2012. The Ombudsman cannot investigate this complaint. Mr X appealed to the High Court against the Council and the Magistrates Court for granting the liability order in 2012. He has not received a successful outcome but any matter on which court proceedings have commenced is outside the Ombudsman’s jurisdiction. In addition Mr X was aware of the matter more than 12 months before he submitted his current complaint. The Ombudsman will not exercise her discretion to investigate this matter now because he made a similar complaint in 2013.


The complaint

1. The complainant, whom I shall call Mr X, complains about the summons charge which he received in 2012. He says he paid £10 which he considered a reasonable reflection of the costs and the Council then obtained a liability order from the Magistrates Court for the remaining £60 costs. He says the Magistrates Court is also at fault for issuing the liability order.

The Ombudsman’s role and powers

2. The Ombudsman cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c))

3. The Ombudsman cannot investigate late complaints unless she decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)


How I considered this complaint

4. I have considered all the information which Mr X submitted with his complaint.


What I found

5. Mr X received a summons of £70 for unpaid council tax in October 2012. He considers the cost to be excessive and paid the Council £10 which he says is appropriate for the cost of recovery. The Council took the matter to the Magistrates Court in November 2012 and obtained a liability order for the remaining £60. Mr X says the Court should not have granted the order because he considered the liability was settled and he wrote to inform the court of this. He attended a court hearing on 2 November but the court granted the order.

6. Mr X challenged the Court decision and the Clerk informed him that he may only do so in the High Court. Mr X says he applied to the High Court to challenge the Council and the Magistrates Courts decisions on 22 November 2012. He says that despite this and a second judicial review action he has not obtained a satisfactory result from the High Court.

7. Mr X asked the Council to quash the liability order in February 2013. The Council refused to do so because it said the order was valid. Mr X disputes this. In May 2013 he complained to the Ombudsman about the arrears on his account because they were carried forward to the following financial year. The complaint was considered premature and we advised Mr X to pursue a formal complaint with the Council. He did not state in his complaint that he had already taken the matter to the High Court.

8. Mr X did not submit a formal complaint to the Council until March 2014. He disputed the procedure and the outcome of the initial stages. The Council sent a final decision in September 2014. Mr X did not submit another complaint about this until 2016.

9. It is clear that Mr X disputes the charges which the Council makes for serving a summons for council tax arrears. He challenged the decision of the Council and Magistrates in 2012 and made two applications to the High Court. The Ombudsman may not consider matters which are subject to the commencement of court proceedings, regardless of the outcome. Mr X made a complaint in 2013 but he did not resubmit it until 2016. The Ombudsman would not exercise discretion on the grounds of time where the complaint subject is outside her jurisdiction on the grounds of court involvement.


Draft decision

Mr X appealed to the High Court against the Council and the Magistrates Court for granting the liability order in 2012. He has not received a successful outcome but any matter on which court proceedings have commenced is outside the Ombudsman’s jurisdiction. The Ombudsman will not exercise her discretion to investigate this matter now because he made a similar complaint in 2013.

Investigator’s draft decision on behalf of the Ombudsman.

_________________________________________________

Draft Decision for your comments

[Adamna]

Re: Council Tax Liability Order Applications Court Costs – Test Case

The implication is that you were unsuccessful in the high court, as in losing, rather than having your progress there impeded. It was the impediment that caused the delay. Can they not see that?

[outlawlgo]

Re: Council Tax Liability Order Applications Court Costs – Test Case

Representations on Ombudsman's Draft Decision not to investigate

Local Government Ombudsman
PO Box 4771
Coventry
CV4 0EH

Grimsby
North East Lincolnshire

22 February 2016

Ref: 15 016 673


Dear Mr Oxley

Complaint against North East Lincolnshire Council

I am writing in response to your letters of 9 January and 15 February 2016 and wish to submit my representations on your draft decision which is set out in Annex A of this letter.

It is apparent that you have produced the draft decision before I had the opportunity to comment fully on your 9 January letter. I trust you received my emails of 10 and 11 February querying your correspondence which also brought to your attention that the vast majority of the content of my complaint was not held by the LGO for consideration.

It was hoped that the queries would be addressed before the LGO drafted its decision, but apparently those emails have been taken to represent my submissions. Whilst I had intended making my representations after receiving a response, and that opportunity has been missed, the formal decision whether or not to investigate the complaint has been suspended in order for my comments on the draft decision to be considered. I will however, make some points here additional to those representations at Annex A addressing your initial 9 January letter.

I would contest various remarks made in that letter which are in your subsequent letter generally referred to as “jurisdictional barriers”. Firstly, the jurisdictional barrier (time limit) which is being relied on to allow the continued injustice is only apparently relevant because of the complaint, in my opinion, being improperly linked to the date when the liability order was obtained by the Council. The complaint submitted to the LGO specifically concerned the Council failing to address the issues raised in the formal complaint – instead it had focussed on irrelevancies which were geared to achieving its own agenda. The Council’s final decision was dated 15 September 2014 and the complaint to the LGO related to that date (and occurrences of maladministration since), and therefore not November 2012.

There is a question arising as to why the complaint, which was considered premature in May 2013, has any relevance to the Ombudsman’s decision whether to investigate the present one. It was referred to in my complaint merely to reinforce the degree to which the maladministration has affected me in terms of gross inconvenience. The LGO complaint in 2013 never concluded as the Council eventually resolved the issue which in any event specifically concerned monies that the Council appropriated wrongly causing default and unwarranted recovery action against me.

Other jurisdictional barriers concerned the level of court costs, commencement of court proceedings in the High Court, and that I contested the Magistrates’ Court’s decision to grant the liability order. Firstly, summons costs are applied to the taxpayer’s account prior to the court hearing, therefore is a matter concerning the Council’s actions, not the Court’s. Regarding the commencement of court proceedings, there has never been an outcome and consequently representations were submitted to highlight the mismanagement of the Magistrates’ Court and for the Parliamentary Ombudsman to consider, in what was hoped would be a joint investigation with the LGO. However, that matter has apparently not formed part of the Ombudsman’s decision making and further supporting documents not considered in the process.

It is now irrelevant that the Ombudsman considers it only my opinion that the Magistrates’ Court was at fault for issuing the liability order as the circumstances under which the Council obtained it has since been determined unlawful; see R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin). The Council (Haringey) had not provided the Court with sufficient information to reach proper judicial determination on whether the costs claimed were reasonably incurred in accordance with the Regulations. Moreover, the case authority has been since been successfully applied in Ewing v Highbury Corner Magistrates Court & Anor [2015] EWHC 3788.

Considering the above clarification, which largely renders the jurisdictional barriers irrelevant, it now seems appropriate to consider what was described in your 15 February letter as the “de minimis complaints in terms of financial loss”.

My 10 February email responded briefly to the remarks made regarding the matter involving only £60, and that the complaint and litigation engaged in has been my own choice. Despite the emphasis on public resources, and that the Ombudsman must use these carefully, I note a complaint was recently investigated by the Ombudsman regarding a matter involving only £60. The report, for which the decision date was 9 November 2015, states the following at paragraph 11 of LGO ref: 15 002 847:

“The Council refunded the £60 paid by Mr X as a gesture of goodwill. It also paid Mr X a further £70 which it offset against his council tax account.”

The criteria upon which a decision to investigate must have included factors other than merely the value of the initial financial loss, such as the amount of inconvenience caused, potential loss failing the Ombudsman’s intervention or the need for a decision in the public interest. As far as it being my own choice to pursue the matter; given that the Council was acting unlawfully this would seem a reasonable choice, since the alternative would be giving my consent to the Council to pick my pockets (and others) whenever it pleases. The question also arises as to why the Ombudsman would hold a view which to any rational person would appear to be endorsing unscrupulous behaviour towards the public.

Yours sincerely


outlawlgo

Annex A

The Ombudsman’s draft decision

Summary: Mr X complained about the Council’s summons and liability order charges for recovery of unpaid council tax in 2012. The Ombudsman cannot investigate this complaint. Mr X appealed to the High Court against the Council and the Magistrates Court for granting the liability order in 2012. He has not received a successful outcome but any matter on which court proceedings have commenced is outside the Ombudsman’s jurisdiction. In addition Mr X was aware of the matter more than 12 months before he submitted his current complaint. The Ombudsman will not exercise her discretion to investigate this matter now because he made a similar complaint in 2013.

The complaint raises issues far too numerous and complex to simply say that they involve court summons costs from a hearing in 2012. The variety of injustices highlighted are in any event matters of significant public interest and would benefit from the Ombudsman’s scrutiny. If the main subject of the complaint had to be pinned down, it would have to be that the matters raised in the formal complaint were investigated improperly, with the intention of obfuscating the salient points to focus on irrelevancies. Although the complaint stemmed from the Council’s maladministration in its application of summons costs (not liability order) with respect to Council Tax recovery it did not form exclusively the issues of concern. In any event, the summons costs are applied to the taxpayer’s account on issuing the summons and therefore concerned the Council’s actions only.

Neither the Magistrates nor High court proceedings were material to the complaint. The content which set out the court’s involvement was included to show the gross inconvenience that those elements represented of the maladministration which was triggered and continues and so the matter does not concern the commenced proceedings. Moreover, there has never been an outcome to those proceedings, successful or otherwise, and is why the administration by HMCTS was recommended to be jointly investigated in conjunction with the Parliamentary Ombudsman under powers granted by the Regulatory Reform Act 2001.

The complaint made in 2013 was neither about court costs, Magistrates Court nor High Court proceedings but specifically about the Council misallocating payment (intended for the then current year’s liability) to a previous year’s account/balance thus engineering default. The current complaint, which has to some extent been clarified above, but which ultimately seeks to have the liability order quashed, is another matter. Seeing as the overriding factor on which the Ombudsman seeks to not exercise her discretion, being that the complaints are both similar, there is scope for reconsidering the matter now this has been clarified. It was and is open to the local authority on realising it was made incorrectly to apply to the Magistrates’ court to have the order quashed. The simplest way to resolve the matter is for the Council to take that remedy and for the LGO to use its influence as it is refusing to, especially as the judgment in R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin) leaves there no question that the application was made incorrectly.

The complaint

1. The complainant, whom I shall call Mr X, complains about the summons charge which he received in 2012. He says he paid £10 which he considered a reasonable reflection of the costs and the Council then obtained a liability order from the Magistrates Court for the remaining £60 costs. He says the Magistrates Court is also at fault for issuing the liability order.

The reference to a “charge” gives the impression that it may be permissible to set the level as a penalty, for example to deter a taxpayer from late payment, or for raising revenue generally. To leave absolutely no doubt, the summons costs do not function to punish late or non-payment, neither can they function to encourage prompt payment; however, the complaint clearly gave examples where the Council had set the level of summons costs for improper purposes like these. It was also detailed in one or more of the supporting documents (of which none were considered) that in R v Highgate Justices ex parte Petrou [1954] 1 ALL ER 406 it was held that costs should not exceed the proper costs incurred and should not be a penalty.

I am not alone in saying that the Magistrates Court is at fault for issuing the liability order. A recent case concerning matters not dissimilar to the issues raised in my appeal to the High Court resulted in a successful appeal and judgment praising the appellant and Pro Bono legal reps for bringing the case before the court. Mrs Justice Andrews described the appeal, [2015] EWHC 1252 (Admin), as raising 'issues of significant public interest to both council tax payers and local authorities'. The costs claimed against the defendant in the case were in excess of £30k and suspect the effort put into obstructing my case, as detailed in one of the supporting documents (complaint to Advisory Committee) intended to prevent a similar outcome. It was adjudged that an order for summons costs was unlawful because the court had insufficient information to determine the reasonableness of costs claimed.

Had the Magistrates’ Court complied with the rules and the appeal proceeded, it is completely rational the high court would have made similar judgment, i.e., it would have found the liability order to enforce the summons costs had been obtained unlawfully. Like in [2015] EWHC 1252 (Admin), the Council had not provided the Court with sufficient information to reach proper judicial determination on whether the costs claimed were reasonably incurred in accordance with the Regulations. Moreover, it is also in my case as in the one determined, broadly the same inadequate criteria that satisfied Magistrates that the costs were ‘reasonable’ as another supporting document sets out (case stated draft). Crucially, had the Magistrates not sought to obstruct the appeal, the contested costs would never have formed part of my account balance which has exposed me to a greater risk of payment default because of the opportunity it has provided the Council for misallocating monies to that sum.

Finally, the granting of costs without sufficient relevant information to support them, did not become unlawful on account of the High Court judgment; so before 6 May 2015, it will have been required that the court had before it that information to enable reaching a proper judicial determination. The position had merely been confirmed in that case.

The Ombudsman’s role and powers

2. The Ombudsman cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c))

Section 26 of the Local Government Act 1974 would not render the complaint invalid to be considered for investigation as it is not a complaint about the commencement of court action or what happened in court. Rather it concerns the Council’s actions and the resulting gross inconvenience that continues because of the maladministration.

Even if the commencement of court action could be tenuously linked to the complaint for the purposes of engaging s26, the Ombudsman has discretion in that regard as a number of reports acknowledge; for example, paragraph 4 of LGO ref: 14 009 989:

“The law says the Ombudsman cannot normally investigate a complaint when someone could take the matter to court. However, she may decide to investigate if she considers it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c).”

The concluding sentence of sub-section 6 of section 26 of the Local Government Act 1974 states as follows:

“Provided that a Local Commissioner may conduct an investigation notwithstanding the existence of such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect the person aggrieved to resort or have resorted to it.”

Notwithstanding all of the above, the existence of section 26(6)(c) does not mean that a complaint in its entirety would be invalid merely because there was some connection with court proceedings. Another report provides a clear example where an investigation was carried out and the outcome found in the complainant’s favour, even when a case had gone to tribunal, see paragraph 35 of LGO ref: 15 000 836:

“Mr C argued to the Land Registry that it should not place the charge, for various reasons. As is normal, the matter then went to a tribunal to consider the appeal. For the reasons given in paragraph 5, I cannot consider the arguments that were part of that appeal, even though the tribunal did not eventually have to decide the appeal.”

It is in this matter that the supporting documents, if they had been considered, would have highlighted the true extent of HMCTS’s maladministration that involved lying to prevent an outcome of the proceedings and why it was recommended to be jointly investigated with the Parliamentary Ombudsman. Despite this; though I’m pursuing the available remedy, and have never withdrawn my appeal, it is reasonable that the Ombudsman would consider the matter out of my control, and for practical purposes deem that resolve via the High Court is not a reasonable alternative to the Ombudsman’s involvement.

3. The Ombudsman cannot investigate late complaints unless she decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)

Though completing this complaint has exceeded the 12 months time limit, the issues are in one way or another continuing and it is impossible to fix a date for the purposes of determining the time limit. The most recent (September 2015), has involved the Council again misallocation payment to engineer default, but this time resorted to lying to the court by submitting a false statement to support its reasons for obtaining a liability order. On top of the gross inconvenience and unwarranted additional court costs this has caused, the potential consequences are further exposure to bailiff recovery and enforcement fees. These new issues occurring and relevant information becoming available requiring the need to update the complaint has meant the necessary delay in submitting these concerns. Considering this, it would be reasonable that the Ombudsman use discretion, especially when the delay is a direct result of Grimsby Magistrates court and the Council failing to cooperate.

The wilful negligence of both the Council and Magistrates court has been sufficiently serious to constitute professional misconduct which must warrant the appropriate investigation into the concerns. This is why, what could be considered an inordinate amount of work has gone into producing the complaint.

How I considered this complaint

4. I have considered all the information which Mr X submitted with his complaint.

The material submitted with the complaint did not include the supporting documents which are referenced throughout the principle document, therefore the entire complaint has not been considered. The main document provided a list of 26 supporting documents, above which it informed the investigator of the importance that all were to be considered, and a copy requested in case any were missing. They were never requested but it has since been explained to me that there was enough information contained in the main document for the Ombudsman to be satisfied that she could not investigate the issues. A significant proportion of the supporting papers was in connection with the Magistrates Court’s maladministration and so supplied with the intention for consideration in a joint investigation. However, the Parliamentary Ombudsman’s involvement appears never to have been a consideration.

What I found

5. Mr X received a summons of £70 for unpaid council tax in October 2012. He considers the cost to be excessive and paid the Council £10 which he says is appropriate for the cost of recovery. The Council took the matter to the Magistrates Court in November 2012 and obtained a liability order for the remaining £60. Mr X says the Court should not have granted the order because he considered the liability was settled and he wrote to inform the court of this. He attended a court hearing on 2 November but the court granted the order.

The demand on the summons was £507.52 of which £70 was summons costs which had before the court’s involvement already been added to my account, the remainder was the outstanding liability for remainder of the year (£437.52). I paid the aggregate of the sum specified in the summons as the sum outstanding and a sum equal to the costs reasonably incurred by the Council in connection with the application up to the day of service of the summons (£10) in accordance with reg 34(5) of the Council Tax Regulations. (If the outstanding balance and an amount equal to reasonable costs incurred is paid or tendered to the authority, the application shall not be proceeded with).

6. Mr X challenged the Court decision and the Clerk informed him that he may only do so in the High Court. Mr X says he applied to the High Court to challenge the Council and the Magistrates Courts decisions on 22 November 2012. He says that despite this and a second judicial review action he has not obtained a satisfactory result from the High Court.

The initial application to the High Court was by way of a case stated. The second was a judicial review claim to obtain a mandatory order for the Magistrates to state a case which it conditioned upon entering into a recognizance, but which I considered denied my access to justice. I was persuaded to withdraw my judicial review claim (not case stated) by the High Court as the process prompted the Magistrates to produce a draft case. The Clerk to the Justices, after producing the draft, failed to comply with the remaining process needed to further proceedings and because of this has to date prevented the case coming before the Queens Bench. All correspondence since has been ignored by the Clerk except one which replied with an undertaking to have written communication setting out the position with the case and advising of the next steps, which was never followed up.

7. Mr X asked the Council to quash the liability order in February 2013. The Council refused to do so because it said the order was valid. Mr X disputes this. In May 2013 he complained to the Ombudsman about the arrears on his account because they were carried forward to the following financial year. The complaint was considered premature and we advised Mr X to pursue a formal complaint with the Council. He did not state in his complaint that he had already taken the matter to the High Court.

The Council claimed that the order had been “correctly obtained” in February 2013 which I disputed on the grounds that the application should have ceased when the aggregate of the sum outstanding and an amount equal to the costs reasonably incurred by the authority was paid (reg 34(5) of the Council Tax Regulations).

The complaint in May 2013 to the Ombudsman was made prematurely but with it clearly explained that if I were to exhaust the Council’s formal complaints procedure, the issue would have likely escalated to having to appeal a liability order which could only be done in the High Court. I had already written to the Council on 22 April 2013 about my concerns that monies had been misallocated resulting in unnecessary recovery action. The letter, which had not been replied to, was submitted along with my complaint to the Ombudsman on 13 May. By the time the Council responded on 5 June 2013 (the Ombudsman 14 June) I had written a second letter (21 May) informing the Council that the error was partially resolved and to ask that balances relating to different years were kept separate to avoid unnecessary court proceedings. The fact there was over a 6 week delay in responding is negligent, even more so knowing that similar delays have occurred twice since. Importantly the complaint was about misallocating payments leading to unwarranted recovery, not about a court appeal or the commencement thereof.

The next time (see Annex E, complaint) more seriously resulted in a summons being served for non-payment, when again, payments were up to date. In the time it took the Council to respond to an email querying a reminder notice, this had escalated to a summons. The council responded 27 days after it was contacted on 12 November 2014 simply stating that the payments had been reallocated, there was no longer need to go to court, the costs had been removed and the summons withdrawn. The issue concerned the Council’s payment processing system being set so that payments which did not exactly match instalment amounts were automatically allocated to the oldest account, thus engineering default for the current year. Taxpayers struggling to meet payments who owe money from a previous year are at risk of entering a cycle of being subjected to recovery action and incurring the costs every year. That anomaly could be largely eliminated by having the system set so that payments which do not match a debt instalment are allocated to the current year's liability.

There is a flexibility–efficiency tradeoff inherent in the system which relies solely on automation. Case law has held that the debtor has first choice over allocation of payments and his election may be express or implied. The system relies on implied payments, and its limitations means this is achieved exclusively by virtue of the amount exactly matching the instalment. This of course may not be the only way to imply which debt payment is intended, for example, if allocating monies to an older balance would likely put the current year's liability in arrears, it would be implied that payment was intended to reduce the indebtedness of the current year’s debt whether or not it matched an instalment.

A number of billing authorities have their systems set so when unspecified payments are made on an account, those payments are allocated to the current year to ensure that the debtor does not unnecessarily incur additional recovery costs through a further application for a liability order. This suggests that those authorities are aware of R v Miskin Lower Justices (1953) in which it was held that where an amount so obviously relates to a specific liability, it would be an unwarranted assumption to allocate the payment elsewhere. Presumably the reason why these councils ensure non recognised payments do not get allocated to the oldest debt is because it would be an unwarranted assumption to allocate monies to a sum in arrears if it is likely to also put the current year's liability in arrears.

8. Mr X did not submit a formal complaint to the Council until March 2014. He disputed the procedure and the outcome of the initial stages. The Council sent a final decision in September 2014. Mr X did not submit another complaint about this until 2016.

The complaint in relation to the final decision in September 2014 was not submitted until 21 January 2016 because I considered the extent of the negligence (both Council and Magistrates’ court) was so serious to warrant the level of detail that went into producing the complaint. Representations to paragraph 3 above set out, to some extent, some of the other reasons. The completion was delayed significantly owing to the Council wrongly instituted recovery again in September 2015, requiring the time consuming production of further representations to defend that action at the Magistrates’ court.

9. It is clear that Mr X disputes the charges which the Council makes for serving a summons for council tax arrears. He challenged the decision of the Council and Magistrates in 2012 and made two applications to the High Court. The Ombudsman may not consider matters which are subject to the commencement of court proceedings, regardless of the outcome. Mr X made a complaint in 2013 but he did not resubmit it until 2016. The Ombudsman would not exercise discretion on the grounds of time where the complaint subject is outside her jurisdiction on the grounds of court involvement.

The complaint has been wrongly defined (see previous representations). Representations were submitted relating to the commencement of court proceedings because the maladministration of the Magistrates’ court was recommended to be jointly investigated with the Parliamentary Ombudsman, however, that was omitted to be considered. The jurisdictional barriers as referred to previously and deemed irrelevant have been explained in the various representations.

Draft decision

Mr X appealed to the High Court against the Council and the Magistrates Court for granting the liability order in 2012. He has not received a successful outcome but any matter on which court proceedings have commenced is outside the Ombudsman’s jurisdiction. The Ombudsman will not exercise her discretion to investigate this matter now because he made a similar complaint in 2013.

See previous representations concerning the jurisdictional barriers and why it is considered within the Ombudsman’s jurisdiction.

Investigator’s draft decision on behalf of the Ombudsman.

_________________________________________________

Draft Decision for your comments

[outlawlgo]

Re: Council Tax Liability Order Applications Court Costs – Test Case

The implication is that you were unsuccessful in the high court, as in losing, rather than having your progress there impeded. It was the impediment that caused the delay. Can they not see that?

According to new information today, discovered by the Judicial Appointment and Conduct Ombudsman (JACO), the Justices' Clerk sent three letters (I don't have) concerning the complaint I made to the Advisory Committee in September 2014 about the failure of the Magistrates to deliver the final case stated. One of the letters states the following:

"A certificate of refusal to state a case was not issued by the Justices because they did state a case for the consideration of the Administrative Court and the final case has been sent to you.

I received neither the letters nor the final case and though JACO has sent copies of the three letters, there is no copy of the case stated. Incidentally the Post code is not correct on the three letters which the Justices' Clerk claims to have sent.

From: JACO
To: outlawlgo
Sent: February 23, 2016
Subject: Your complaint to the Judicial Appointments and Conduct Ombudsman

Dear Mr outlawlgo,

Further to your correspondence to the Ombudsman about the Humber Advisory Committee not replying to or dealing with your complaint about two Magistrates, which you initially made on 2 September 2014. I am sorry for the delay in writing to you. It took a significant amount of time to obtain the complaint file from the Advisory Committee, which was received last week.

Having considered the complaint file, I noted that the Advisory Committee had letters on file that were sent to you in response to your correspondence to them, the Judicial Office and the Judicial Conduct Investigations Office. I attach them for your perusal.

As your complaint to the Ombudsman related to the Advisory Committee not replying to or dealing with your complaint, I ask you to consider the letters attached and then advise me whether you wish to continue, close or amend your complaint to the Ombudsman.

I would be grateful for a reply by 9 March 2016.

Yours sincerely,
JACO

The letter which is claimed to have been sent in response to the Judicial complaint on 2 September 2014:

Grimsby
North East Lincolnshire
XXXX 0Q3

Our Ref: AW/KC

Date: 16 September 2014

Dear Mr outlawlgo

Re: Complaint

I acknowledge receipt of your letter of 2 September 2014.

I can confirm that the complaint you made in relation to the conduct of Mr J A O'Nions JP and Mr T A Shepherdson JP has been referred to the Deputy Chairman of the Humber Advisory Committee in accordance with the prescribed procedures contained within the Judicial Conduct (Magistrates) Rules 2014.

Having considered your complaint, in accordance with the powers available to him under the Rules, the Deputy Chairman of the Advisory Committee dismissed your complaint in respect of both magistrates. The decision to dismiss the complaint was made first on the basis it related to a judicial decision made in proceedings against you which did not a raise a question of misconduct by the magistrates, and second that the actions you have complained of were not done or caused to be done by the magistrates. A certificate of refusal to state a case was not issued by the Justices because they did state a case for the consideration of the Administrative Court and the final case has been sent to you.

If you feel that the Advisory Committee has not handled this case properly, you can complain to the Judicial Appointments and Conduct Ombudsman. Please note that the Ombudsman can only consider a complaint about the handling of this complaint and he has no power to investigate the conduct issue itself.

The Ombudsman will be able to investigate your complaint about the handling of this complaint if you write to him within 28 days of receipt of the Committee's decision. After that period he will consider whether it is appropriate to investigate it. Further information about the Ombudsman may be found at www.judicialombudsman.gov.uk. The office of the Judicial Appointments and Conduct Ombudsman can be contacted in writing at 9th Floor, The Tower, 102 Petty France, London SW1h 9AJ, by e mail at headofoffice@jaco.gsi.gov.uk or by telephone on 020 3334 2900.

Yours sincerely
Mrs A Watts
Secretary to the Advisory Committee

The letter claimed to have been sent in connection with the Judicial Office prompting a response on 29 May 2015:

Grimsby
North East Lincolnshire
XXXX 0Q3

Our Ref: AW/KC

Date: 29 May 2015

Re: Complaint

I have been contacted by Judicial Office in connection with your complaint of 2 September 2014.

This matter was responded to by the Humber Advisory Committee on 16 September 2014 and I enclose herewith a further copy of that reply.

Yours sincerely
Mrs A Watts
Secretary to the Advisory Committee

The letter claimed to have been sent in connection with the Judicial Conduct Investigations Office prompting a response on 6 July 2015:

Grimsby
North East Lincolnshire
XXXX 0Q3

Our Ref: AW/KC

Date: 6 July 2015

I have been contacted by Judicial Conduct Investigations Office in connection with your complaint of 2 September 2014.

This matter was responded to by the Humber Advisory Committee on 16 September 2014 and I enclose herewith a further copy of that reply.

Yours sincerely
Mrs A Watts
Secretary to the Advisory Committee

[Adamna]

Re: Council Tax Liability Order Applications Court Costs – Test Case

So, the documents would have been returned to sender as undeliverable. This does not wash. What next, and what does the case stated say? Surely the Administrative Court would also have tried to contact you?

[outlawlgo]

Re: Council Tax Liability Order Applications Court Costs – Test Case

So, the documents would have been returned to sender as undeliverable. This does not wash.

It's unlikely that one digit on the post code being wrong would result in the letter being undelivered, besides, other previous corespondence was addressed correctly.

What next,

For a start, express to the Ombudsman (Judicial) that the investigation needs to continue, but with the latest developments taken into account.

... what does the case stated say?

Haven't been sent a copy of the final case stated which was supposedly sent to me, however, the draft, and representations are here:

Draft case and Representations made on the case

Surely the Administrative Court would also have tried to contact you?

Don't think it would have concerned the Administrative Court.

[Adamna]

Re: Council Tax Liability Order Applications Court Costs – Test Case

I assumed "because they did state a case for the consideration of the Administrative Court" meant that it was sent to them as well.

[outlawlgo]

Re: Council Tax Liability Order Applications Court Costs – Test Case

The application to 'state a case' is the initial stage of proceedings, set out in the Criminal Procedure Rules.

The following stages (once the Magistrates' Court has served the 'case stated') is outlined below:

Filing of appellant's notice.......