Council Tax Liability Order Applications Court Costs – Test Case

[outlawlgo]

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

From: [outlawlgo]
To: Rose, Nicholas (JACO)
Sent: Tuesday, May 24, 2016
Subject: Re: Emailing: [outlawlgo] final letter


Dear Mr Rose

Further to my 24 May 2016 email, I have noted that the events are inaccurate regarding the proceedings, for example there seems to have been confusion regarding the the two High Court applications. The first was an application for the justices to state a case for the opinion of the High Court and the second (Judicial Review claim) was for a mandatory order requiring the Justices to state a case for an appeal to the High Court as I was having no success dealing directly with the Magistrates court.

For the moment I will leave that to one side except to say that I'm concerned about how it has come about that you have been led to believe that there was some settlement with North East Lincolnshire Council, hence (para 2):

"He subsequently applied to Judicially Review this decision and the matter appears to have been settled with the Council at that point."

And (para 6)

"The papers show that the application was not proceeded with as the local authority responded with an offer acceptable to Mr Yyyyy."

I would like to know what information has been referred to in order to assert the above because there has never been any kind of settlement with North East Lincolnshire Council in the matter.

Letters produced in response to the investigation

There is no obvious reason why the three documents which were allegedly sent to me dated 16 September 2014, 29 May and 6 July 2015 could not have been made available for the Ombudsman within a few days, yet Mr Jones who was initially dealing with the matter stated the following in his 23 February 2016 correspondence:

"It took a significant amount of time to obtain the complaint file from the Advisory Committee, which was received last week."

I have checked my records and note that Mr Jones wrote to me on 3 December 2015 and from the contents of his email it was implied that it was on or around that date when these documents were asked for:

"I will now request your complaint file from the JCIO and you will be written to again when it has been received and considered."

To take over 12 weeks to disclose the documents does tend to suggest what I believe has happened which is they have been produced purposely for the Ombudsman's investigation. This would be supported by the fact that the final case stated, which is said in the 16 September 2014 letter by the Justices' Clerk who handled the complaint was sent to me has apparently never been seen by anyone. Presumably the Ombudsman has not at any time been furnished with the document and I definitely have not despite requesting or enquiring about it on the following occasions:

1. An email to the Justices' Clerk on 25 February 2016, (Mr Jones JACO copied in).

I was never sent a response.


2. A request to the Ministry of Justice on 13 March 2016 regarding the 25 February email.

I received the following

"I have spoken to Ms Watts and she apologises for the delay in response and for not arranging for you to be updated with the fact that she is dealing with your email. Ms Watts has confirmed that she will respond to your email of 25 February by no later than 15 April 2016. Ms Watts has been considering this matter and has had to review the file to give full consideration to the matter raised."

I was not sent a response by or on 15 April 2016 nor have I received one since.


3. Prompted the Ministry of Justice on 11 May 2016.

I was emailed on 12 May by the MoJ as follows: "I will contact Ms Watts again and ask her to respond."

Still no reply or even acknowledgement.


It is also material that the Court was contacted nine times in connection with obtaining the finalised case stated and replied only once, despite the Ombudsman stating that the mishandling of the application does not come under his remit. The fact that I was written to on that one occasion (6 March 2014) with an undertaking that by the following day, the position regarding the case would be set out and communicated in writing fits in with the pattern, as that too was never acted on.

A letter updating me on the progress of my complaint, sent 12 May 2016 provides further evidence of the difficulty there seems to be for the Advisory Committee to provide information. Delaying continues to be the recurring theme:

"I am writing to update you on the progress of your complaint. I have contacted the Advisory Committee to obtain further information and comment but have not received a response. Today I sent a chase-up letter. Once I have this information I will be able to complete my report and prepare the papers for the Ombudsman."

The odds are virtually nil that four items of correspondence – correctly addressed, all but a minor error – being sent that neither reached me nor were returned. I have stated that none of the correspondence reached me and am prepared to declare so in a signed statement of truth.

I would think the most sensible way forward – before a final report is produced – is for the relevant person at the Advisory Committee to make a written statement of truth that the documents said to have been sent to me on the respective dates were actually produced and sent around that time.


Yours sincerely

[outlawlgo]

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

From: Rose, Nicholas (JACO)
To: [outlawlgo]
Sent: Tuesday, May 24, 2016
Subject: RE: Emailing: [outlawlgo] final letter

Mr [outlawlgo]

Thank you for your comments, I am happy to respond to the points you raise.

Para 2 of the Report - You confirm that the 'case stated' related to a separate claim and not the JR - thank you for clarifying this. This is not something that would affect the outcome of the decision as the Ombudsman confirmed in Para 2 that correspondence about the 'case stated' was not a matter that could be considered under the regulated disciplinary process. Your proceedings and correspondence with the court about these proceedings did not raise an issue which could be considered by the AC or the Ombudsman.

Your papers appeared to suggest that the JR did not proceed because the Council had declined to pursue the costs against you (see Para 32 and 38 of your chronology). You have now clarified that this was not the case - again this has no bearing on the Ombudsman's decision as he has already stated that correspondence about a 'case stated' was outside the scope of the regulated disciplinary procedures.

Delay by the AC in providing a copy of its complaint file - the AC stated that the delay in responding to a request for the complaint file was caused by an office move. There was a further delay when I asked the AC if it had proof of posting for the three letters. It finally confirmed that the letters would have been sent by standard delivery and that there was no record of posting for this type of mail. JACO provided regular updates to you during this period.

The complaint file did not contain the letter of 16/09/14 or correspondence with the MoJ because this was not a matter dealt with by the AC as it was outside the disciplinary process. Again the Ombudsman was clear that issues around the case stated were not matters he could consider, he cannot consider any issue arising in your correspondence with the court regarding your claim or your application for JR. He confirmed in his report that the AC properly dismissed your judicial conduct complaint in accordance with the legislation. Other matters you raised were outside the AC's investigative remit.

I trust that the 3 letters have now reached you. You will have to chase your contact in the MoJ about the 4th letter. The Ombudsman's preliminary investigation report is final and there will be no further 'final' reports; the complaint process has been completed and no further action will be taken by the Ombudsman as he has confirmed that the actions complained about could not lead to a finding of maladministration because the AC correctly dismissed your original complaint in accordance with the disciplinary legislation.

I trust this clarifies matters and concludes the complaint.

Nick Rose
Investigating Officer
Judicial Appointments and Conduct Ombudsman
9th floor, The Tower, 102 Petty France, London SW1H 9AJ
0203 334 2912
nick.rose@jaco.gsi.gov.uk

[outlawlgo]

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

From: [outlawlgo]
To: Rose, Nicholas (JACO)
Sent: Friday, May 27, 2016
Subject: Re: Emailing: [outlawlgo] final letter

Dear Mr Rose

My suspicions are now confirmed that the Judicial Appointments and Conduct Ombudsman is an organisation put in place at the expense of the taxpayer to give the appearance that holders of judicial office are accountable. It takes little concluding that legislation governing investigatory powers has been enacted to enable its application to cases with such flexibility that the same complaint could either fall within the Ombudsman's remit and be accepted for investigation or be considered outside his remit and be rejected.

The statutory nature of the process serves as protection for judicial office-holders as invariably the Ombudsman will apply the law in a way that ensures the matter falls outside the Ombudsman's remit. Presumably, only when the MoJ wishes to be rid of someone will the governing legislation be applied as a means to that end.

The Ombudsman has decided the outcome purely on the basis that he believes the Advisory Committee's version of events when the overwhelming evidence is that the letters have been produced afterwards and in response to preliminary enquiries.

From the Ombudsman statement at paragraph 4 of his decision the matter is narrowed down to such triviality as to decide whether he considers the alleged letters containing a minor error in the post code constitutes maladministration, which of course it wouldn't but is not the issue.

The deliberate postcode error was an obvious and half-hearted attempt at a red herring, but did serve as something on which the Ombudsman could base his report. It should be noted that other correspondence sent by the Justices' Clerk, properly addressed, have been received both before and after the alleged letters were sent.

I doubt the Ombudsman disagreed with my assertion that the odds of four items of correspondence failing to be delivered are virtually zero. If he doesn't the matter effectively comes down to being my word against the relevant person at the Advisory Committee's. I have stated that none of the correspondence reached me and prepared to declare so in a signed statement of truth and suggest that the relevant person at the Advisory Committee does similar. However, this proposal has been ignored and believe it has been because discovering the truth might not fit in with the Ombudsman's agenda.


Further inaccuracies

It might seem trivial but there should be at least a minimum standard to which the Ombudsman should aim with regard accuracy of reports.

At paragraph 4 of the decision, the dismissal letter referred to was not the letter of 2 September 2015, that was the date of my letter of complaint to the Advisory Committee.

In your email (24 May) it is stated that the complaint file did not contain the letter of 16/09/14. My understanding is that this was in the complaint file as it was one of three letters sent to me as email attachments on 23/02/16. That email stated as follows:

"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."

While checking my records today to confirm this I also looked into when the letters were created which were as follows:

Letter 16.9.14 – Created on 08/02/16 at 18:20:11

Letter 29.5.15 – Created on 08/02/16 at 18:20:29

Letter 6.7.15 – Created on 08/02/16 at 18:20:51

Whether or not the fact they were produced two weeks before you sent them to me has any significance I will let you decide.


Case stated document and MoJ correspondence

I assume you meant the case stated document when referring in your email (24 May) to the complaint file not containing the letter of 16/09/14.

The final 'case stated' referred to in the 16/09/14 letter is a key piece of evidence that should have been obtained. The Ombudsman should have insisted on its disclosure whether or not it was part of the complaint file. Where events are questioned the Ombudsman must be required to make a reasonable attempt to get at the truth. That could have been done simply by asking for the disputed document as it supposedly exists as stated in the recently obtained dismissal letter of 16/09/14:

"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."

The complaint file clearly should have contained the final 'case stated', but it is immaterial that the Ombudsman disagrees. Discovering it did not exist, therefore not sent would provide a solution for why the three other letters had similarly not existed. Merely requiring proof that the case stated existed to further an investigation does not amount to considering issues surrounding the document.

For the same reasons stated for being unable to consider the MoJ correspondence, i.e., that it was not part of the complaint file and not dealt with by the Advisory Committee, it does not amount to considering issues around the 'case stated', only reinforces the assertion of maladministration by the failure to reply after undertaking to do so by a given date.

It is clear from the chronology (para 47) that a certificate of refusal to state a case was requested on 22/04/14 and if as is said in the dismissal letter of 16/09/14, the final case had been sent to me, then you would have expected this would have been advised.

It is my belief that the Ombudsman, knowing full well I have been caused gross injustice by these events, has unfairly applied the law in a way that ensures the matter falls outside his jurisdiction in a bid to protect the responsible person.

It would be reasonable, given these arguments, that this matter be reconsidered, however, I expect you will counter this by informing me that I have the option of challenging the decision by entering into another procedure that has been responsible for causing me the injustice in the first place.

Your sincerely

[outlawlgo]

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

North East Lincolnshire Council's external auditor contractor, KPMG, has delivered its response to the request for a declaration of unlawful account and report in the public interest.

You have to bear in mind that as a private company and contractor to the council it had little choice in the matter if it wanted to carry on being the council's contractor.

From: outlawlgo
To: Auditor (KPMG)
Sent: December 27, 2015
Subject: Audit Commission Act 1998 - Council tax summons costs Accounts

Dear Sir/Madam

Re: Declaration of unlawful account and report in the public interest

In your capacity as external auditor to North East Lincolnshire Council (the 'Council') I am requesting KPMG apply to the court for a declaration that an item of account is contrary to law under section 17(1) of the Audit Commission Act 1998 with respect to Council Tax court summons costs.

It would also seem appropriate that serious consideration is given whether to produce a report in the public interest under section 8 of the Audit Commission Act 1998.

Charge briefly outlined

A £60 sum is applied as standard to the taxpayer's account in all cases where the Council makes complaint to the Magistrates' court for alleged non-payment of council tax. The charge is added on serving a summons, whether or not the person summonsed is proceeded against in the Magistrates' court, or whether the Council incurs any expenditure in respect of resources expended engaging with the person.

Note: It is this activity (staff contact) for which a significant element of the £60 costs is attributed, see Annex F, attached Grounds of Appeal ("GoA").

Point of law

The Statutory Instrument which provides for claiming these costs is the Council Tax (Administration and Enforcement) Regulations 1992. The level (and application) of costs are restricted to instituting the complaint (summons) by regulation 34(5) and where the case proceeds to court and a liability order is obtained, regulation 34(7) allows costs to include the additional expenditure attributed to that process.

The costs must be referable to each of these stages therefore a lesser sum is incurred by the Council for instituting the complaint and must not include any of the expenditure attributed to obtaining the court order, or other expenditure, like for example enforcing the order after it has been granted by the court.

The Council's policy to apply costs / Judicial review

As stated, the Council recharges a standard sum in all cases and therefore not in accordance with the incremental two stage approach outlined in the Regulations. Also, by applying the same sum in all cases, the situation arises where a taxpayer who simply settles his debt on receiving a demand (summons) subsidises the costs of another taxpayer who engages with staff, for example to renegotiate payment plans, and the subsequent expenditure attributed to monitoring the arrangement.

However, in a recent High Court case; R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin), the judge gave guidance in a bid to clarify the grey area surrounding the Council electing; i) to charge a standard sum in all cases; and ii) not to apply a lesser sum for instituting the complaint than the costs for proceeding to court and obtaining the liability order.

Paragraph 46 of the judgment (attached), with regard to a standard sum, states, so far as is relevant as follows:

"46. In principle, therefore, provided that the right types of costs and expenses are taken into account, and provided that due consideration is given to the dangers of double-counting, or of artificial inflation of costs, it may be a legitimate approach for a local authority to calculate and aggregate the relevant costs it has incurred in the previous year, and divide that up by the previous (or anticipated) number of summonses over twelve months so as to provide an average figure which could be levied across the board in “standard” cases..."

Paragraph 50 of the judgment, with regard to not applying a lesser sum for instituting the complaint etc., states as follows:

"50. In principle there is no reason why a local authority should not decide to limit the costs it claims to the costs in connection with issuing the summons, although in practical terms that approach provides no incentive to the respondent to pay up after the summons is issued. What matters is that the costs that it does decide to claim are properly referable to the enforcement process."

Implications of R (Nicolson) v Tottenham Magistrates

The judge's opinion at para 46 is that it may be a legitimate approach to apply a standard sum in all cases. However, if wanting to take that approach (and do so lawfully) the standard sum would also have to be properly referable to the Regulations (regs 34 and 35). If there is any doubt as to what these regulations provide clarification has been provided in the Council Tax Practice Note 9: Recovery and Enforcement, produced by the Department of the Environment (1993) and more recently in the 2013 Government good practice guide, for the collection of Council Tax arrears, which both state that "the amount claimed by way of costs in any individual case is no more than that reasonably incurred by the authority".

In that case, given that the amount claimed by way of costs in any individual case must be no more than that reasonably incurred by the billing authority, if the Council wanted to take advantage of streamlining the administration process by applying a standard sum in all cases, in order for it to be done lawfully, it would need to forfeit each element of expenditure it incurs that is not common to every application (the majority of costs which are accounted for in its breakdown).

In other words, a standard sum could not exceed that incurred by the authority in a case where the least expenditure is attributed, which would in practice relate to a taxpayer settling his outstanding debt on receipt of a summons without contacting the council on any issue. Deriving a figure therefore from the ‘Gross Recoverable costs’ (see Annex F, GoA) which is split between an estimated number of summons, can not be lawful; even less so if the number of summons is reduced to factor in an estimate for those withdrawn, waived and those in respect of unrecoverable costs.

The least cost case is the only basis on which to determine a standard sum if the aim is to eliminate the administrative burden of calculating the costs in each case, whilst at the same time complying with the regulations which require that the costs be no more than that incurred by the authority in any individual case.

The Council sets its standard costs at a level to ensure that no cost of recovery is borne by the taxpayer in priority to complying with the Regulations that restrict the amount that can be recharged in costs to the court application (Annex C of GoA, particularly paras 4-10). It is therefore contended that an element of the standard £60 costs can not be compliant with the Regulations, based as they are on the premise that any expenditure considered attributable to recovery and enforcement activity (however tenuously linked) is recoverable by recharging it to the defendants through costs claimed in an application for a Liability Order

The breakdown of costs which the Council has undertaken to keep under review provides evidence that in the circumstances relating a taxpayer simply settling their debt on receiving a summons, the vast majority of expenditure it claims is not incurred for the issue of a summons so is contended that the claimed costs represent a sum outside that which the law provides.

If the Regulations were applied lawfully, the consequences would be that the majority of ‘Council Tax’ (£191,730), ‘Debt Recovery’ (£327,480) and the ‘Control & Monitoring’ costs (£109,380) would not be permissible in respect of re-charging expenditure for instituting the complaint (see paras 73-115, GoA).

Yours sincerely

From: Prentice, John
To: [outlawlgo]
Cc: Wroot, Sharon
Sent: Monday, June 06, 2016
Subject: North East Lincolnshire Council - council tax summons costs

Dear Mr [outlawlgo],

Declaration of unlawful account and report in the public interest

We refer to your e-mail of 27 December 2015, in which you request KPMG to apply to the court for a declaration that an item of account is contrary to law under section 17(1) of the Audit Commission Act 1998 with respect to Council Tax court summons costs reclaimed by North East Lincolnshire Council. You also requested consideration of whether a report in the public interest should be produced under section 8 of the Audit Commission Act 1998.

The Council seeks a standard summons costs of £60 for all cases where the Council applies to the Magistrates Court for recovery of outstanding council tax. You contend that the manner in which this is applied is outside that which the law provides. You also contend that the costs included for recovery exceed those allowable, following guidance from the judge in the High Court Case R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin)

You have demonstrated your knowledge of the legal powers relating to council tax enforcement in your attachment relating to the Defendant’s Grounds of Appeal in your previous submission to the Magistrates Court. As Parliament has given power to the courts to determine whether to approve or accept the request for summons costs or costs reasonably incurred by the Council, we cannot circumvent the wishes of Parliament by substituting our judgement in these situations. You have previously put your case before the Magistrates Court and High Court so it would be inappropriate for us to determine that any summons costs awarded by the Magistrates Court could be unlawful. Any decision otherwise could only be taken by a higher Court and therefore must be deemed beyond our responsibilities. Similarly, whether or not the Council seeks to recover further costs for instituting an application for a liability order is a policy matter for the Council and it is not the role of the auditor to interfere in policy decisions made within the powers of the Council.

It was therefore not necessary for us to establish the legal powers that apply in this situation. We have therefore considered the following points in relation to the matters you raise:

1. What actions has the Council taken in relation to the recovery of council tax summons costs?

2. Has the Council acted reasonably in relation to the recovery of those costs?

3. Are there any matters where we might conclude that the Council has acted unlawfully?

4. Are there any matters which would justify a report in the public interest?

Council actions

The Council’s website contains an annual calculation of its summons costs for the forthcoming year. It sets out the costs included in its calculation, based on estimated costs for the year ahead, and divides these by the number of summons issued in the previous year (being its best estimate for the year ahead). Those costs include administration, recovery and enforcement but only estimated proportions to exclude costs estimated to relate to routine processing and collection of council tax on time. The figure derived is rounded to the nearest £10 and this figure is used when applying to the Magistrates Court for additional costs along with arrears of council tax. As the Regulations allow for costs of collection and recovery to be recovered where costs are sought, we would consider that the Council’s actions are not unreasonable in this situation.

The website states:

“This figure is determined based on comparisons with the fees charged by neighbouring councils and the national average. A check is made to ensure that the monies raised from applying costs are not greater than the actual cost of the service.”

As stated in the previous paragraph, the Council determines its summons cost by reference to its own estimated costs. It is therefore incorrect, as well as inappropriate, for it to then say this figure is determined on the basis of comparison with other authorities. Instead these are used to confirm that the Council’s own costs are not out of line with others before setting its charge. We have recommended to the Council that the latter statement should be amended on its website.

Has the Council acted reasonably?

The Council has acted in an open and transparent manner by publishing the details of its calculations of its council tax court summons costs for at least three years. It has altered the amount it has sought to recover for is costs, from £70 to £60, due to changes in volume and efficiency savings. Although entitled to seek further costs for liability orders, it has opted not to seek further costs which is a policy decision within the Council’s powers. It has considered charges made by other councils to confirm that its own costs are not excessive. Overall, we are able to conclude that the Council has acted reasonably.

Are their actions unlawful?

Following consideration of the above, and given that the website description is an administrative error only, we have concluded that there is no unlawful item of account. Consequently there is no need for any action under paragraph 28 of the Local Audit and Accountability Act 2014.

Is a report in the public interest required?

There are also no matters which would require reporting in the public interest under schedule 7 paragraph 1 of that Act. (This Act replaces the Audit Commission Act 1998 from 2015-16 onwards.)

We have recently sent you a booklet published by the National Audit Office which explains your rights. We have therefore not included this again but it is also applicable to the matter above.

We have copied this e-mail to the Council so that they are aware of the decisions reached.

Yours sincerely

J G Prentice
Director, for and on behalf of, KPMG LLP

[outlawlgo]

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

From: [outlawlgo]
To: Prentice, John (KPMG)
Cc: Wroot, Sharon
Sent: Monday, June 13, 2016
Subject: Re: North East Lincolnshire Council - council tax summons costs

Dear Mr Prentice,

Declaration of unlawful account and report in the public interest

Thank you for your response to my correspondence requesting that KPMG apply to the court for a declaration that an item of account is contrary to law. I do however consider that the wishes of Parliament conferring power to the courts etc., is not an appropriate 'get out' for justifying being let off the hook concerning making the application.

Appropriateness of establishing the legal powers

Sub-paragraph 2(a) of section 28 of the Local Audit and Accountability Act 2014 provides for the court to make or refuse to make the declaration asked for and therefore the mere fact that court proceedings in relation to the matter have gone ahead where costs have been awarded does not preclude the auditor making an application. Although you assert that my case has previously been put before the Magistrates' and High Court, It should be pointed out that the High Court has made no ruling because the Magistrates Court has and continues to obstruct the appeal proceeding for reasons I can only assume.

Notwithstanding that the Magistrates' court on two previous occasions has awarded the council these costs, there was no evidence in either case that the representations submitted had been properly considered. However, all of this is largely academic because the application to the court for the relevant declaration concerns the council unlawfully accounting for expenditure associated with Council Tax Enforcement and Recovery (the "cost of the service") and substituting that for its Summons cost calculation. The matter first and foremost concerns the auditor's duty to act on information highlighting accounts which are misrepresented, so it should not be a consideration that if doing so there is identified something which the courts should be aware of. It therefore can not possibly be conceived how the matter can be considered without reference to the relevant laws.

Council's website description

I note your recommendation to the council to amend its website regarding the reference to the costs being determined based on comparisons with the fees charged by neighbouring councils etc. It is also noted that the council has removed the statement giving information that 'a check is made to ensure that the monies raised from applying costs are not greater than the actual cost of the service'. In its place it states that 'the figure is determined by a realistic estimate of the work dedicated to the application of a liability order'. It is one thing to claim administrative error in the matter relating to the recommended change but a gross misrepresentation to alter the description from the 'cost of the service' to the cost 'dedicated to the application of a liability order'.

The cost of the service, from numerous references has been confirmed to relate to ‘the costs reasonably incurred for Council Tax collection and recovery’ which is a much broader budget that encompasses the work dedicated to the application of a liability order. That being the case the new wording on the council's website can only have credibility if there's a corresponding change in the "Summons cost calculation" to reflect it. The cost of the service must include expenditure attributable to instituting the summons but only as a small element of the aggregate amount and so the idea of ensuring income is kept within this budget is misconceived as a measure of what might be lawful to make up its Summons cost calculation.

The Court hasn't the necessary knowledge of the council's accounts

The court has made no proper judgment regarding the costs, and if it had, it would be a neglect of duty for the auditor to be 'silent' whilst advantaged with superior insight into the accounts and benefiting additionally from researched information. The auditor in any event would not be making a judicial decision but be presenting evidence based on his own area of professional expertise which the court would be best advantaged to justify making the declaration asked for. It would have to be questioned why a provision exist in law for an auditor, clearly better equipped than the court to assess the accounts, if not to provide the best opportunity for the court to make a ruling.

Conventionally when determining costs for the successful party, the court broadly need only consider the amount paid for legal representation and therefore an invoice of those expenses forms the basis on which the court is able to decide a sum. The position is not so black and white for Council Tax liability applications where an in-depth knowledge of a billing authority's accounts is required to facilitate a proper determination of the costs and to ensure that they are properly referable to the enabling regulations. To reiterate what I have previously stated, those regulations restrict the amount claimed in respect of the summons to expenditure incurred by the Council for instituting the complaint and must not include any of the additional expenditure attributed to the application/obtaining of a liability order, or other expenditure, like for example enforcing the order after it has been granted by the court. Merely changing the description on it's website without appropriately amending its Summons cost calculation does not legitimise the accounts.

Unlawful account

Having established it inappropriate to consider the matter without reference to the relevant laws, the criteria upon which you have considered the concerns essentially requires amending to include various submissions, for example my 27 December 2015 email, the referred to content in the Grounds of Appeal document and a number of correspondence I sent in 2012 bearing reference NG/CTR/12912.

After doing so, it could no longer simply be claimed to be a policy matter whether or not the Council seeks to recover further costs for instituting an application for a liability order, because asserting that was based on the assumption that additional expenditure attributed to the application/obtaining the order was waived which would in turn have to rely on certain misconceptions, those being that the;

i) gross recoverable expenditure attributable to the costs was permissible

ii) further work attributed to obtaining the liability order was not arbitrarily estimated, merely to justify charging all costs up front

iii) average costs do not include subsidy for bad debt arising from waived or unrecoverable costs

iv) costs do not include subsidy for administration expenditure arising from setting up payment plans, dealing with queries etc.

v) claimed costs do not include any element attributable to the expenditure of enforcing the order after it is obtained

Upon proper consideration it could only logically be concluded that expenditure which is not referable to the regulations is included in the accounts, especially given that the council's aim is to ensure no cost of recovery is borne by the taxpayer. It is clear that the gross recoverable expenditure is on the whole attributed to debtors who take up resources by engaging staff in matters connected with their payment difficulties. Those customers are generally the ones having their costs waived or avoid them due to payment plans being set up, yet the cost of arranging and monitoring of them thereafter is what makes up the costs which are recoverable through the summons. In general terms it is those debtors driving the activity who are not incurring costs, but being paid for by those who don't engage staff and consequently at an inflated amount.

I appreciate it is a difficult position for the auditor having on the one hand a public duty to ensure that the residents of North East Lincolnshire are not caused a detriment financially because of misrepresented accounts and on the other, having to be mindful that the council holds the decision whether or not a contract will be terminated or renewed.

Yours sincerely

[Adamna]

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

It took them almost 6 months to provide the brush off?!
How can they still think that "As the Regulations allow for costs of collection and recovery to be recovered where costs are sought".
Oh dear.

[outlawlgo]

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

How can they still think that "As the Regulations allow for costs of collection and recovery to be recovered where costs are sought".

Well spotted. Although argued in my response to the Auditor that the regulations were being misrepresented by considering that they allowed the costs incurred for Council Tax collection and recovery, I didn't pick up on the fact that even the Auditor considers, and stated that these were permissible.

[outlawlgo]

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

Complaints, Correspondence and Litigation Team
1st Floor, Post Point 1.4
102 Petty France
London
SW1H 9AJ

25 June 2016

Dear Sir/Madam

Re: Failure responding to correspondence regarding delivery of ‘case stated’

I understand my complaint should in the first instance be made to the Court Manager; however, the concerns I wish to raise have been ongoing since November 2012 and relate to the court failing to reply, so consider it valid that it is escalated now to the Complaints Handling Team. The complaint surrounds a disputed order made against me by Justices at Grimsby Magistrate’s court which led to an application to the court to state a case for an appeal to the high court.

I have been unable to obtain the case stated, despite making numerous attempts. It is this failure that has prevented the appeal that was instituted on 22 November 2012 from proceeding to the High Court to this day.

The injustice caused extends far beyond that set out in this complaint and so consider it just preliminary information to get an investigation underway. It is intended, on agreement with the team to forward details of the issues that have arisen as a result of the gross failure to enable a comprehensive investigation to be carried out.

Those issues predominantly concern North East Lincolnshire Council misallocating payment to the sum subject to appeal when payment was clearly intended for the year’s council tax account which was current when paid. As the council has been able to engineer payment arrears this has led to recovery being taken through the court each year since with further costs added in the most recent proceedings. That in turn has led to time consuming and fruitless disputes i.e., formal complaints, escalation of issues to the LGO, police, police appeals and entering into a private prosecution against the police for negligence by improperly exercising police powers under Section 26 of the Criminal Justice and Courts Act 2015.

The issues, as far as those directly relating to HMCTS are evident from the correspondence compiled chronologically appended to this letter, which is referable to the draft document (chronology) prepared for, and intended to be part of the High Court papers for the case stated appeal.

It will be evident on reading the account that the cause of the gross injustice which has protracted so far over roughly three and a half years has been the unwillingness and refusal of the court to cooperate, which in some cases has involved more seriously lying.

Key points

Initial delay

There was no contact made when the Deputy Justices’ Clerk who was initially dealing with the application left HMCTS toward the end of 2012. After several weeks having no update, enquiries were made to find out why there was no progress being made and it was only on this prompt that I was made aware that the Deputy Justices’ Clerk was no longer employed by HMCTS.

Unnecessary Claim for mandatory order

The failure to deal with queries about the recognizance which the Magistrates set at £500 resulted in gross injustice as I had to research judicial review procedures (mandatory order) as it was not reasonable that I appoint a legal professional. It was only by doing this and when the judicial review claim was underway that the Magistrates' Court admitted in the Acknowledgement of Service that 'the question of the appropriateness of the recognizance and/or the amount could have been considered by the court'. Simply answering my correspondence would have meant making the claim for judicial review was not necessary.

Unanswered correspondence to obtain final case

Various correspondence going unanswered from 19 August 2013 when representations were made on the draft case, up until the Justices' Clerk finally made contact on 6 March 2014 stating that either that day or the following the position regarding the case (advising on the next steps) would be set out in writing. Even with that undertaking there was no communication advising on the next steps. Subsequent attempts to find out what was happening elicited no response.

A letter sent 22 April 2014 requested the production of a Certificate of refusal to state a case under section 111(5) of the Magistrates Court's Act 1980 but was never answered, neither was an email sent 9 July 2014 to enquire into whether HMCTS had any arrangements in place to restrict my contact with the court.

Judicial complaint to Humber Advisory Committee

Having no response until 23 February 2016 to a judicial complaint dated 2 September 2014 to the Advisory Committee which was obtained only after engaging the Judicial Conduct Ombudsman. It is claimed that the matter was dealt with on 16 September 2014 and stated that a Certificate of refusal to state a case was not issued by the Justices because the final case was sent to me. Despite this, a copy which has been requested has not been sent nor has the Justices’ Clerk’s undertaking to inform me of the matter by 15 April 2016 been acted on.

Yours sincerely

outlawlgo

[outlawlgo]

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

From: outlawlgo
To: Hanmer, Peter ; Res - Customer Services
Cc: various
Sent: Monday, June 27, 2016
Subject: Re: False statement to defraud through council tax liability application

Dear Mr Hanmer

It won't come as any surprise that I am completely dissatisfied with your response and consider it wholly unacceptable. Though I anticipated the council's dealing with the matter would be a sham, that makes it no less acceptable.

Of course, you provide no evidence whatsoever to support your decision because it would be impossible to do so as you are contending, without any grounds, the concrete evidence provided you which is not only beyond reasonable doubt but beyond all doubt.

The decision is simply indefensible and the fact that the guilty parties have been protected by the process is evident that the [redacted].

It is the role of the Council's Monitoring Officer to report on matters he believes are, or are likely to be illegal and is responsible to ensure that the Council, its Officers and elected members maintain the highest standards of conduct. Clearly by turning a blind eye in this matter he has failed in discharging his statutory duty, causing not only gross injustice to me as the taxpayer affected by continual harassment of officers pursuing a vendetta, but has also resulted in damaging the reputation of the Council.

Officers should not, but are being allowed to abuse their positions in pursuit of personal vendettas, costing hundreds of thousands of pounds of taxpayers money, over a relatively insignificant sum which in any event has been criminally engineered as a debt that is not owed by those officers purely for their own perverse satisfaction. There is no place within a local authority for individuals of this kind and it is of paramount importance that when such practices are highlighted, the person within the council with responsibility acts on the information by dismissing those guilty and has the matter reported to the police.

Separate but related issue

There is another failure of the Monitoring Officer discharging his statutory duty, which until now has not been dealt with, but nevertheless needs investigating as it has had a material impact on the present issues. The matter relates to 2013 when [redacted], as Monitoring Officer was the person responsible for ensuring that the Council's decision making was within the law.

Background

Grimsby Magistrates Court had been obstructing the progress of an application to state a case for an appeal to the high court in the matter of NELC's application for a council tax liability order. It was looking unlikely that the court would produce the document as was required for the case to continue because of the failure to cooperate.

In line with pre-action protocol for a claim for mandatory order, alternative remedies were suggested in an email to the Justices' Clerk with the council copied in on 6 February 2013 (see attached). In the case of the council, the remedy suggested was to apply to the Magistrates court under section 82 of the Local Government Act 2003 to either quash the liability order for £60 obtained on the 2nd November 2012, or apply for a lesser amount than that for which the original order was made that was equal to the sum that had already been paid (in respect of reasonable costs).

On 8 February 2013 (also attached) the council replied stating it was not prepared to apply to the Magistrates Court to quash the liability order as it claimed it had been correctly obtained.

I disputed this in a letter dated 14 February 2013 (attached) 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. In any event, the letter dated 5 February 2013 attached the email (6 February 2013), pointed out that the court issued a liability order where there was no evidence on which the Magistrates could have found their decision. Consequently, one of the questions in law asked in the application was whether the costs being disputed as unreasonable should have been awarded by the court without evidence from the council to support them.

We now know that they shouldn't have; it was unlawful to award costs without proof of how they had been arrived at. This has been confirmed in the case between Tottenham Magistrates and the Reverend Paul Nicolson (see case attached). It was therefore incorrect for the council to state in its letter of 8 February 2013 that the liability order had been correctly obtained (See para 61 in R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin), attached):

" 61. This application for judicial review of the decision taken by the Magistrates must therefore succeed. I was told that since the hearing the order for costs against the Claimant has been withdrawn, but that does not render the proceedings academic; as I have said, it raises issues of wider public importance. Had the order not been withdrawn, I would have quashed it. Since it has been withdrawn, I will declare that the order was unlawful, because:

i) the Magistrates did not have sufficient relevant information before them to reach a proper judicial determination of whether the costs claimed represented costs reasonably incurred by the Council in obtaining the liability order; "

Moreover, the council has since produced a calculation which proves that expenditure it was claiming was not actually incurred by the council in respect of my case. It is evident from the breakdown that those costs were attributable to activities such as officers who engaged with customers (telephone calls etc) to negotiate payment arrangements and to monitor them, and therefore completely irrelevant to my case and unlawfully claimed.

It was the person appointed Monitoring Officer at that time who was responsible for the decision made not to apply to the Magistrates court as suggested in the pre-action protocol as informed in the 8 February 2013 letter on the basis that the liability order had been correctly obtained.

Consequences

This failure to apply lawful and proportionate decision making, hence not taking the correct remedy has led to years of injustice as it has enabled the Council to misallocate payment to the sum subject to appeal when payments have clearly been intended for the year's council tax account which was current when paid. Having balances outstanding for different years and the opportunity that has given the council to engineer payment arrears, this has led to recovery being taken through the court each year since with further costs added in the proceedings considered here. That in turn has led to time consuming and fruitless disputes i.e., formal complaints, escalation of issues to the LGO, police, police appeals and entering into a private prosecution against the police for negligence by improperly exercising police powers under Section 26 of the Criminal Justice and Courts Act 2015.

Objective

I would like in addition to having a proper response, with names of those involved in the investigation and findings properly documented, that this correspondence serves as a formal complaint about the Chief Executive, Monitoring Officer and all others involved in the investigation process. Naturally as my complaint alleges irregularity, my expectation is that in accordance with the Council's 'Fraud Response Plan' the matter is referred to the Audit, Risk, Insurance and Corporate Fraud team immediately on receipt, despite those who may be referred the matter being some of the officers (elected members) who are the complaint's focus.

Yours sincerely

EDIT: Posted on incorrect thread but is related

[outlawlgo]

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

HM Courts & Tribunal Service has forwarded the complaint about the Justices' Clerk to the Justices' Clerk to respond.


From: HMCTS Customer Service (Correspondence)
To: 'outlawlgo'
Sent: Wednesday, June 29, 2016
Subject: outlawlgo: Complaint - Grimsby Magistrate's court

Dear Mr outlawlgo

Thank you for your email.

I have forwarded your complaint to the Cluster Manager and Justices' Clerk and asked them to respond to you direct in line with HM Courts & Tribunals complaints procedure. Our team are only able to consider complaints at the 3rd stage of our complaints process. I appreciate that you have previously contacted the court but I must ensure they have an opportunity to respond to your complaint.

Further information on the complaints procedure can be found in the complaints leaflet 'EX343 - Unhappy with our service - what can you do?' :

http://hmctsformfinder.justice.gov.u...aflets_id=2781

Kind regards

Karen Warner | HM Courts & Tribunals Service | Customer Directorate

[outlawlgo]

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

From: outlawlgo
To: Clerk to the Justices
Cc: JACO
Sent: February 25, 2016
Subject: Application to State a Case - Grimsby Magistrates' Court

Dear Mrs Watts

The Judicial Appointments and Conduct Ombudsman has made me aware of three letters it appears you sent me, dated 16 September 2014, 29 May and 6 July 2015.

Although I now have copies of all three letters, none of these reached me and I was not aware they had been sent, neither did I receive the final case stated which in your 16 September 2014 letter you say was sent to me. The Ombudsman, however, has not sent a copy of the case stated and so would like to have that in order to proceed with my application to the High Court.

If you agree to this would you please clearly state the original date and an effective date of service so I can ensure the relevant papers are served within the 10 day time limit under the procedure rules.

Yours sincerely

outlawlgo

Three letters and the final "case stated" (detailed in above email) have been claimed to have been sent by the Justices' Clerk for Humber and South Yorks. None have been received and all the evidence points to these claims being fabricated. The Judicial Conduct Ombudsman (JACO), however, believes the fabricated version.

To reinforce my claim regarding the statement being untrue, i.e., that "the final case has been sent to you"

Pursuant to the Criminal Procedure Rules 2015 - Part 35 (Appeal to the High Court by Case Stated) at 35.3, subparagraph 9 (Preparation of case stated);

"the court officer must serve the case stated on each party.

A copy therefore would have been sent to North East Lincolnshire Council, however, the council has also confirmed that it has not been served the case.

[seduraed]

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

Do you have that in writing? If you do go back him with the proof and re.ind him that an error of fact has been made. If use use "error in fact" and "error in law", you find you will get a better result as these phrases are used officially and don't put people's back up.

[outlawlgo]

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

Do you have that in writing? If you do go back him with the proof and re.ind him that an error of fact has been made. If use use "error in fact" and "error in law", you find you will get a better result as these phrases are used officially and don't put people's back up.

The Council was asked regarding a letter dated 16 September 2014 sent by the Justices' Clerk containing the below statement, if it would in compliance with subsection (1)(a) of s1 of the Freedom of Information Act, confirm or deny whether it held the final case stated:

"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."

The Council responded as follows:

"Thank you for your information request reference 2916_1617. I can confirm that North East Lincolnshire Council does not hold the requested information."

[outlawlgo]

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

Judicial Conduct Ombudsman’s Preliminary Investigation Report

Judicial Appointments & Conduct
Ombudsman

Our ref: 15-2489

Mr Xxxx Yyyyyy

23 May 2016

........

The fact that three letters did not reach you is surprising as they were properly addressed except for a minor error in the postcode which should not have prevented delivery. I do not consider that a finding of maladministration is possible for this error.
..........


My decision

4. I have not identified any issue arising in my preliminary investigation which could lead to a finding of maladministration. I consider that the error in the post code of the dismissal letter of 2 September 2015 should not have prevented it from being delivered, as the whole of the postal address was correctly set out, and if it was undelivered it should have been returned to the HAC for further action and re-issue. This minor error could not in itself amount to maladministration. I note that the HAC re-issued the dismissal letter on two further occasions but that there is no proof of postage as the letter was sent by standard post. It is unfortunate that the HAC did not email a copy to Mr Yyyyyy when it posted a copy of the letter, but again this omission could not amount to maladministration. I am content that Mr Yyyyyy’s complaint of 2 September 2014 was properly dismissed in accordance with disciplinary legislation and guidance. For these reasons I cannot accept this complaint for a full investigation

Paul Kernaghan CBE

23 May 2016

Coincidentally at Page 30 of the Judicial Appointments & Conduct Ombudsman – Annual Report 2015-16, there is another recorded instance of a complainant not receiving the Magistrates’ Advisory Committee’s letter dismissing the complaint.

See Case Study five – Magistrates’ Advisory Committee

The Ombudsman understood that the complainant did not receive the AC’s letter dismissing his complaint, but he was content that the AC responded to the complainant’s query about progress, confirming that the matter had been dismissed and apologising that the letter had failed to reach him.

[Milo]

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

It's looks as if you may have forgotten to post a copy of this response that you received last week from the Information Commissioners Office:


https://www.whatdotheyknow.com/reque...#comment-73766

From: casework@ico.org.uk
To: fFaudwAtch UK@gmail.com
Sent: Friday, October 21, 2016
Subject: re Your FOI complaint to the ICO about North East Lincolnshire Council[Ref. FS50635343]

21st October 2016

Case Reference Number FS50635343

Dear [fFaudwAtch UK]

I am writing to you concerning your complaint to the ICO about your FOI request to North East Lincolnshire Council dated 9 June 2016 for information on:

“If Rossendales do in fact removed and sell any goods who will be liable for the theft?”

Your case has now been allocated to me to consider.

Unfortunately having considered your request we have determined that it is not a valid information request for the purposes of the Act. We will not therefore be able to take this complaint further. I will explain further.

As I understand your situation, you dispute liability for a debt which the council says you owe to it for unpaid council tax. The council has however sought and obtained a court order stating that the money is owed, and has therefore hired Rossendales to recover the money or alternatively to recover goods from your house to repay the debt. Your request asks the council who will be liable for the theft of your goods if they are removed and sold as part of the debt recovery because you dispute that any money is owed by you.

The Commissioner has issued guidance for those wishing to make a request for information under the Act at https://ico.org.uk/for-the-public/offici.... The Act provides a right to request information which is held by an authority in recorded form. The guidance states that “Your request can be in the form of a question, rather than a request for specific documents, but the authority does not have to answer your question if this would mean creating new information or giving an opinion or judgment that is not already recorded.”

Your request asks council to give an opinion or to make a judgement; you propose that Rossendales taking goods from your property would amount to a crime of theft, and ask the council to make a judgement as to who would be liable for that theft. The council is not required to respond to your request under the FOI Act unless that judgement is already held as recorded information.

Theft is a criminal offence in law. Only a court can actually decide whether an action amounts to theft and decide who is liable for that theft. The council has a court order stating the courts judgement that you owe the money to the council. We do not need to consider your arguments relating to the actual legality of the claim by the council in the first instance – the court has already made that decision and the Commissioner has no power to consider or overturn a court order. Unless a court overturns the court order then a removal of your goods from your property will not amount to theft providing all of the necessary legal and administrative procedures are carried out correctly. Insofar as the law is concerned, the council is entitled to take steps to recover money which a court has found is owed to it and this may include taking goods from your possession if a repayment is not made.

Your suggestion that theft would occur is therefore based upon a false premise. Regardless of whether you have a legal case for overturning the court order or not you have not currently done so. The council will not therefore hold any recorded information which demonstrates who is liable for theft – it will hold information relating to the debt it says is owed, and the legal and administrative measures it has taken to date to recover that debt.

In short therefore, your request asks the council to make a judgement on something it has no power to make a judgement over, and no recorded information will be held which can answer your request regarding theft.

Given this the Commissioner is not able to help you further with your request in this instance and your case has therefore been closed.

I am aware that you have other complaints open with the Commissioner. For the absence of doubt, the above only relates to the request for information which you have made to North East Lincolnshire Council dated 9 June 2016 as I have outlined above. The ICO will write to you separately regarding your other requests if it has not done so already.

I am sorry that we have not been able to help you further with your complaint in this instance.

Yours sincerely

Ian Walley
Senior Case Officer