summons for COUNCIL TAX - billed with CT benefit then told differently

[enichol]

Hi all

I hope you can help! Been trying to deal with this for a while but not got very far.

My other half and I have recently been summonsed to Leicester magistrates Court for non-payment. We have been emailing the council and they have been replying, but rather robotically. We were receiving full council tax benefit under self employment as my other half is self employed but is disabled due to his Army service and his work suffers. So much so that he rarely breaks even and mostly loses investment money. He continues because its better than giving in to his disabilty and doing nothing, and better than signing onto soul destroying job centre plus for unemployment - in any case his disability makes him unable to keep some appointments, for part of his disability problems he has been described as having a low immune system so he is constantly unwell. I was made redundant and since having 2 children found it hard to get another job and so stay at home with the kids and so Im not registered as anything!

He was asked to fill in self employment form by the council which he did and gave in to their offices. In return he was sent a Bill informing him that we had been awarded full CT benefit (it was the same the previous year and our circumstances had not changed for the better, in fact cashflow got worse). However, we recently recieved a Summons for non payment. On emailing the Council we have been told that a few weeks after our full CTB Bill they had sent another Bill which informed us that we had to pay around 65 – 70 percent of the Bill. I have not seen this Bill nor any other follow up demands they now say they sent. the last we knew of was the Bill detailing full CTB.

I had been hoping that they would see sense and reinstate the Bill we did get, but they simply say that we need to pay the ‘outstanding’ amount. they cannot even tell me why we seem to have been awarded a partial discount as only 65-70 percent is being demanded.

We go to court in a next week and my husbands health isnt great so I am concerned about him being able to go to defend us (as I say his erratic illness makes it hard to keep any appointments and sometimes he can fall asleep for many hours at a time and cannot be roused - several times in excess of 24 hours). I am suffering with my pregnancy and have already been to Hospital twice with hyperemesis (dehydration and vomiting) and i am spending most of my time at the moment gagging and trying to sip water. We do not have any disposable to pay anything to them, as we have already been awarded full ctb, in theory we should not owe anything anyway. Also, despite us telling the Council several times in the past that my surname is now my husbands name, they have used my maiden name on the summons. (someone has mentioned to me that the summons is not issued by the court, instead is printed off by the Council and is therefore invaild - is that right?) They have also used my maiden name on the most recent Bill and on the new Bill for next year. (which is a full bill and on the back says that reduction support should now be applied for but in the meantime we have to pay as billed, which could push us into very severe financial troubles.)

I hope you can help

Thanks for reading

[ploddertom]

Re: summons for COUNCIL TAX - billed with CT benefit then told differently

The only issue the Court can decide is whether you are liable to pay CT - a simple yes or no answer. They are not allowed to discuss any payments or adjustments. With CT you are supposed to pay regardless of any application for a reduction or any Benefits, if you then happen to pay over the top then it is credited to your next bill unless you ask for a refund.

As no enforcement action has started it is difficult to make any claim as to being classed as vulnerable but is your Council aware of both your health issues? You should also contact your local Councillor(s) and ask them for help - best done by phone. Does your Council or local CAB have a Welfare Rights Adviser who can ensure you getting the correct level; of Benefits? Another track worth trying is I note you mention your OH is ex-services - try Help for Heroes, SSAFA or British Legion to see if they can offer any help.

Have they explained the reason why you went from 100% of Benefit to only approx a third. It sounds as if someone has misread your claim possibly.

[enichol]

Re: summons for COUNCIL TAX - billed with CT benefit then told differently

Hi thanks for replying

At the moment it seems that the best way forward is to claim it back when they have sorted it out properly, but we will have to borrow the money to do that. i dont see why any citizen should be forced to pay what they dont have. Some friends of my husband have worked as Process Servers and apparently they suggested that in their experience to pay any 'debt' first then try to claim it back is the wrong thing to do. Also the Council can take ages and all the while we are denied use of our money while they have use of it. Of course I have an issue with the charges though as whilst I dont feel we are actually liable for the 'debt' I certainly dont think we are liable for charges applies to what In my opinion is their mistake.

The Council is very well aware of our health issues but they appear to ignore this. Outside this Forum, I have been urged to call the Council to sort this matter out, even derided for not doing so yet, but in my experience so far they need somesort of record shoved back at them which is why I email. Also rather than post a letter which can take days and has to incur the extra cost of recorded delivery to have some sort of record that it was sent, emailing is quicker. Why do the Council never send demands and summons recorded? Apparently at the hearing they have to prove they sent all the paperwork that they are obligated to do under the Council Tax rules - well we havent seen anything until the summons so how do they prove it?

A couple of times Ive pointed out this point the we now appear to be liable for 70% and that we cannot find any circumstance where anyone would get a 30% discount. However in the 2 emails that I have since received, they have not answered that point.

Its a good idea to use one of the services charities. I will encourage my husband to do this today. He has had to use a welfare officer from the veterans agency before, although he had to be forced to do that as he is still a proud man and frustrated by his situation. They were very helpful before and I hadnt considered it myself. I shall also look into the local Councillor

If there is any more advice, please add!

thanks

The only issue the Court can decide is whether you are liable to pay CT - a simple yes or no answer. They are not allowed to discuss any payments or adjustments. With CT you are supposed to pay regardless of any application for a reduction or any Benefits, if you then happen to pay over the top then it is credited to your next bill unless you ask for a refund.

As no enforcement action has started it is difficult to make any claim as to being classed as vulnerable but is your Council aware of both your health issues? You should also contact your local Councillor(s) and ask them for help - best done by phone. Does your Council or local CAB have a Welfare Rights Adviser who can ensure you getting the correct level; of Benefits? Another track worth trying is I note you mention your OH is ex-services - try Help for Heroes, SSAFA or British Legion to see if they can offer any help.

Have they explained the reason why you went from 100% of Benefit to only approx a third. It sounds as if someone has misread your claim possibly.

[outlawlgo]

Re: summons for COUNCIL TAX - billed with CT benefit then told differently

As ploddertom explained, the Magistrates hands are tied, but that doesn't mean the council or the court can lawfully deny your rights to appear before the Bench (what normally happens at these hearings). In fact what would force the authorities to reconsider their practice of rubber stamping thousands of liability orders in a single sitting would be if everyone summonsed to these hearings took up their offer and insisted on having time in the courtroom.

This is what will be stated on the summons document and is certainly written in the Council Tax regulations at 34(2).

Application for liability order

34.—(2) The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding.

Some of the following information (connected with your predicament) could be tailored to draft an appeal. I think it unlikely, but if your council had an ounce of reasonableness it should reconsider the irresponsible enforcement action its taking.

Quite a few LGO decisions have found against local authorities that pursue recovery action while council tax benefit claims are ongoing.

This one seems relevant: H2: Council tax benefit Report – Ref: 03/B/12862

The Ombudsman said:

I do not consider such action is necessary, fair or reasonable in every case. The council should take into account the circumstances of the individual before taking such action. In my view a council should not seek a liability order while a claim for council tax benefit is outstanding, and where the reason for delay in assessing it is not attributable to the claimant.

Another example; costs and court action withdrawn, and paid £500 compensation

Mr and Mrs M are housing association tenants claiming housing benefit and council tax benefit. Mr M is seriously ill and his wife is his full-time carer. The council took over six months to re-assess their claim after they reported a change of circumstances. During that time their council tax debt built up. At first the council held back from taking action against them, but then, without checking whether the claim had been decided, the council referred the case to court. When they received the summons Mr and Mrs M went to an advice agency which made a complaint on their behalf. But the council ignored it and went ahead with the court action. Mr and Mrs M received a liability order and then a letter from the bailiffs. They also had a letter from their landlord about rent arrears. After the advice agency complained to us, the council decided the claim, paid the benefit, withdrew the court action and costs, and paid £500 compensation. We also asked the council to review its procedures to make sure it had proper systems in place for suspending council tax recovery action while a benefit claim is being processed, and for identifying complaints.

If possible, it would be handy to get hold of the full LGO report (03/B/12862), though another reference to the case is worth reading here: Wise to the Council

If they do obtain a liability order, one suggestion is to submit a formal complaint and request the authority apply to the magistrates to quash the liability order under Regulation 36A – Ref: S.I. 2004/927, quoting the LGO reports detailed.

Possibly pointing out the reason why Lord Henley – then Parliamentary Under-Secretary of State for the DSS – blocked an amendment to the 1992 Local Government Finance Act, which seeked to prevent a liability order being issued unless the court was satisfied that the authority had correctly determined whether there was an outstanding claim for council tax benefit.

Clearly the exclusion of the amendment was not for the purpose of giving local authorities the green light to process 'en masse' such cases through the court, but allow councils discretion and filter-out vexatious claimants.

Lord Henley HL Deb 28 January 1992 vol 534 cc1203-44 (1227)

Although I can appreciate and sympathise with the reason why the amendment was tabled, I can see no reason for changing that position for the council tax. If such a change was made, I am afraid it would leave the way open for taxpayers to avoid or delay their liability to pay the council tax by making bogus claims for benefit and causing those claims to be delayed by failing to provide the correct information. Most authorities will continue to act reasonably if approached by someone with an outstanding benefit claim and would not continue their recovery process until the claim was settled. That is the advice which has been given in a practice note issued by the Department of the Environment to all authorities on enforcement of the community charge and will be reiterated in guidance on enforcement of the council tax.

The guidance referred to is likely to be the Council Tax Practice Note No. 9, at paragraph 3.11:

3.11 A liability order may be made notwithstanding that the taxpayer is disputing the amount of council tax benefit which has been awarded or the fact that council tax benefit has been disallowed. The billing authority should, however, as a matter of best practice check that there is no outstanding benefit claim and refrain from taking enforcement action where such bona fide benefit claims have been received and are unresolved....

Just to throw in a little extra ammunition, it might be worth highlighting the exact wording of Regulation 34(1), meaning the billing authority has discretion as to whether it applies to the court, so is not required to by law:

Application for liability order

34.—(1) If an amount which has fallen due under regulation 23(3) or (4) is wholly or partly unpaid, or (in a case where a final notice is required under regulation 33) the amount stated in the final notice is wholly or partly unpaid at the expiry of the period of 7 days beginning with the day on which the notice was issued, the billing authority may, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable.

If you need any more references to these issues, have a read of this !! "Recovery Action and the outstanding Council Tax Benefit claim"

Then this:

Whether or not a liability order could be issued while a benefit claim was outstanding was tested in the High Court in the case of Regina v Bristol Magistrates' Court, Ex Parte Willsman and Another [1991]. While this case refers to unpaid community charge the principles remain valid. In this case the High Court considered that it was reasonable for a liability order to be granted although the defendants had a valid claim for benefit outstanding.

Source: CIPFA's Guide to the Council Tax

And this:

Regulation 36A

Under Regulation 36A which was inserted by S.I. 927/2004 and came into force on 22 April 2004, a billing authority may apply to the magistrates to quash a liability order, and/or substitute another for a lesser amount.

The issue of the magistrates’ power to quash a liability order has been raised several times recently, firstly in the case of Liverpool CC v Pleroma Distribution Ltd 2002 EWHC 2467 (admin) [2002], in which a liability order was granted by magistrates while they were not aware that a letter seeking an adjournment had been received.

On discovering the existence of the letter, the magistrates decided to withdraw the liability order even though they had no specific power to do so. Liverpool appealed.

It was held that the magistrates have the power under common law to reopen a case where they have made a decision in ignorance of facts that would have affected their judgment, had they known about them.

Source: CIPFA's Guide to the Council Tax

[enichol]

Re: summons for COUNCIL TAX - billed with CT benefit then told differently

Outlawlgo - wow, thanks for all the, its been keeping me busy trying to get through it all

I understand that you suggest that I ask for my time in front of the magistrate but would you suggest that I put together an appropriate Defence using the information you have given and email that defence before the Court Date in a hope they will desist?

Until you posted my course of action was going to be to turn up at Court with the Bill that I did get from the Council that shows zero liability and show that to the Magistrate. Although the Council say they sent another Bill I did not know that until now, and why did they send the zero Bill? They have not said.

Do you think I should do both these things? Do you think taking the zero Bill will be Defence enough?

thanks again

[outlawlgo]

Re: summons for COUNCIL TAX - billed with CT benefit then told differently

...I understand that you suggest that I ask for my time in front of the magistrate but would you suggest that I put together an appropriate Defence using the information you have given and email that defence before the Court Date in a hope they will desist?

Do you mean send to the council as well? Might be worth a shot, if you don't like the idea of going to court.

Whether it's likely they'd desist is debatable, but in any event, it would benefit you to put a defence together and have this emailed/posted to the Magistrates' court. Insist that the court acknowledge this though.

If the court has notification prior to the hearing it might help your cause in the event staff (council and/or court) try to prevent you appearing before the Bench. If you read this, beginning a third down the page, you'll get an idea of how determined they can be in preventing you entering the courtroom.

Have read of this from the Justices Clerks' Society under the heading "Procedure: Liability Order Application":

2. The court hears a bulk application for all non-attenders: the Council representative proves the technical requirements and gives evidence that the sums levied have not been paid.

3. Any defendant attending or writing to the court is dealt with individually and orders made (or not made) in their case. Their attendance or otherwise is also recorded.

Until you posted my course of action was going to be to turn up at Court with the Bill that I did get from the Council that shows zero liability and show that to the Magistrate. Although the Council say they sent another Bill I did not know that until now, and why did they send the zero Bill? They have not said.

If you draft a defence I should including a copy of your bill and any other correspondence that demonstrated the council's unwillingness to co-operate.

Do you think I should do both these things? Do you think taking the zero Bill will be Defence enough?

The more ammunition you have the better your chances of a favourable outcome. However, you have to remember that no matter how good your defence is – and to a certain extent, how much bottle the chair of the Bench has – the law is on the side of the council in regards disputes with council tax benefit.

Take note of this taken from Chartered Institute of Public Finance Accountancy's (CIPFA) website, which I consider to be both good and bad news:

Similarly, the existence of an outstanding or disputed claim for council tax benefit is not a valid defence against the issue of a liability order, but an authority would not normally proceed while a benefit claim was unresolved, unless it was made after the issue of the summons (R v Bristol City Magistrates Court and Bristol City Council ex parte Willsman and Young 1991).

My previous post provided details to draft a defence against the council's unreasonable action in pursuing enforcement whilst a claim is in dispute, but remember they can trump any argument of unreasonableness I suppose, with the law.

However, should the court grant the liability order, there is always the Local Government Ombudsman and possibility of having the order quashed as previous reports from the LGO give plenty of grounds for this in their judgments.

Just one more reference from CIPFA's "Guide to the Council Tax":

Human Rights Act 1998

Local authorities must be careful not to infringe an individual's human rights. Potential areas for problems are:

• notice of hearing;
• being careful not to appear to stop the taxpayer appearing before the court, if they want only to make a payment arrangement;
• not having available a translator for people whose first language is not English; and
• not separating the roles of court taking officer and the person who gives evidence of process.