Council Tax Liability Order Applications Court Costs – Test Case

[outlawlgo]

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

From: Jones, Adam (JACO)
To: outlawlgo
Sent: March 03, 2016
Subject: RE: Your complaint to the Judicial Appointments and Conduct Ombudsman

Dear Mr outlawlgo,

Thank you for your email and clarifying the issues you now wish to pursue.

I note your concerns now relate to the time period between August 2013 and September 2014 and the concern that the Court was contacted nine times by you in connection with obtaining the finalised Court document. You state that the Court only replied once, but did not act on their undertaking to write to you. Please let me know if my understanding is incorrect.

If this is your complaint, it would appear that the Ombudsman's office is not the appropriate body to take forward your concerns. The Ombudsman can only consider your concerns about how the Advisory Committee handled your judicial misconduct complaint about the two Magistrates, i.e. any concerns arising from the complaint you made in September 2014 and thereafter.

Concerns about the Court not responding to your communications about the missing document would need to be made to the Court Manager in the first instance. However, if (as you state) the Court has failed to respond to your communications, you can escalate your concerns to Her Majesty's Courts and Tribunals Service, Complaint Handling and Enquiries Team. Their contact details are –

Her Majesty's Courts and Tribunals Service
Complaint Handling and Enquiries Team,
Zone C,
1st Floor,
102 Petty France,
London
SW1H 9AJ
Email - ComplaintsCorres<@hmcts.gsi.gov.uk

I would be grateful, in light of the information I have provided in this email, if you still feel you have a complaint that falls within the Ombudsman's remit (solely about the Advisory Committee's handling of your complaint about the two Magistrates).

I hope this information is of assistance and I look forward to hearing from you, by 10 March 2016.

Yours sincerely,

Adam Jones
JACO

[outlawlgo]

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

From: outlawlgo
To: JACO
Sent: February 27, 2016
Subject: Re: Your complaint to the Judicial Appointments and Conduct Ombudsman

Dear JACO

As you will be aware from the email I sent on 25 February 2016 to Mrs Watts, I never received the letters which have been obtained from the Advisory Committee until you sent copies. Neither did I receive the final case stated, which in the 16 September 2014 letter Mrs Watts says was sent to me. Moreover, I have still not been sent a copy, nor [.... redacted .... redacted ....].

This all puts a different perspective on the complaint. Had I received the reply in September 2014, the complaint would have turned to a different matter which would essentially have been to focus on [.... redacted .... redacted ....]. Incidentally, it can now be verified that the Deputy Chairman of the Advisory Committee who dealt with the complaint had mistakenly understood the issues to relate to the Magistrates' decision at the court hearing. My complaint letter clearly defined the issue, i.e. the mishandling of the application to state a case for an appeal to the High Court which were events leading on from the judicial decision referred to by the Deputy Chairman. The complaint letter was also clear in stating that the detail supplied was just preliminary information to get an investigation underway.

Regarding the issues as they now stand, it would seem an investigation should turn to one of [.... redacted .... redacted ....].

From August 2013 when the representations upon the draft case were submitted up until September 2014 (Advisory Committee complaint), the Court was contacted a total nine times in connection with obtaining the finalised document. All communications were ignored [.... redacted .... redacted ....].

In answer to your 23 February email, after considering the letters I now hold it would be most appropriate to amend my complaint to consider what is set out above.

Yours sincerely

outlawlgo

[outlawlgo]

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

The Ombudsman (LGO) has served its Final Decision Statement (not to investigate) after considering the representations made on its draft decision ("#265").

The Final Decision is exactly the same as the draft decision. What a sham.

EDIT:

Customer Satisfaction Survey

You may receive a further letter from the LGO in the coming weeks inviting you to complete a short questionnaire telling us about your experience of the LGO’s service. I hope that you choose to take part in the survey and contribute your views to the research.

I might just do that.

[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

[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.......

[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

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

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

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

[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

[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

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

[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

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

[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.