Misallocating payments and ignoring email to exploit Magistrates court costs

[outlawlgo]

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

They have some front, but with the police and court looking the other way I suppose you would feel brave. I don't suppose this is anything to worry about is it?

__________________________________________________ ____

Rossendales

Date: 11th May 2016

Rossendafes Ltd on behalf of North East lincolnshire Council Revenues & Benefits Service - C Tax - TCE Ref: 550xxxxxxx Rossendales Ref: 28628956

All enquiries concerning this document MUST be made to Rossendales Ltd., not North East Lincolnshire Council Revenues & Benefits Service

COUNCIL TAX NOTICE OF ISSUE OF LIABILITY ORDER
INFORMATION PRELIMINARY TO DISTRESS

Following an application made by North East Lincolnshire Council a liability order was issued against you on 30/10/2015 in respect of unpaid Council Tax of £211.00 (including costs).

The balance outstanding in respect of the order is £211.00.

You must pay this sum IN FULL immediately and direct to Rossendales Ltd., NOT THE COUNCIL.

To make immediate payment call our 24 hour automated payment line 0845 078 1194 quoting 28628956

Please note that any other amounts you may owe to the Council that are not covered by this liability order need to be paid as previously advised. Details on how to pay the amount shown above are explained on the enclosed leaflet.

If you cannot pay in full or dispute the amount due then either write to us at the address above or telephone us on 0844 701 3980 immediately.

If payment is not made in full within 14 days from the date of this notice, then distress may be levied upon your possessions. This means that we can list and remove your belongings and sell them at public auction to pay the amount which you owe.

If you want us to consider a payment arrangement you must complete the enclosed questionnaire in full, including details of your offer, and send-it to us, NOT THE COUNCIL, within 7 days. If we accept your offer we will write to you to confirm this within 7 days of receiving your offer. If your offer is unacceptable we will visit to levy distress, and you will have to pay extra fees as shown on the enclosed schedule.

ROSSENDALES LTD

__________________________________________________ ____

EDIT: There was no schedule enclosed as referred to in the letter, only an income/expenditure questionnaire and information on different ways to pay.

[outlawlgo]

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

From: outlawlgo
To: Hanmer, Peter
Cc: Various
Sent: Friday, May 13, 2016
Subject: Re: False statement to defraud through council tax liability application

Dear Mr Hanmer

Neither of my emails (see below) have been responded to or acknowledged, however, Tony Maione, North East Lincolnshire Council's Chief Legal and Monitoring Officer, has taken it upon himself to respond on your behalf (see attached) on 11 May 2016.

Mr Maione is exploiting the legal proceedings I commenced in order for the council to avoid its duty of investigating the fraud under its own policy. This approach is clearly inappropriate as his function is to ensure the law is complied with in all the authority's decision making. The Council obviously sees his role differently, which in this matter is to bailout the council for committing a criminal offence against one of what are termed customers.

Presumably the Council has deliberately delayed its response with the purpose being so it could be certain that the judge, in relation to the information laid, exercised his discretion by not issuing a summons for the purpose of bringing before the court the officer who wrongly stated perjury was not a matter for the police. Notwithstanding that the police and judge have justified their decisions on entirely spurious grounds, the decision to institute proceedings was made before the discovering that the alleged fraud should have been referred by complaints officers immediately to yourself when my formal complaint was submitted, as set out in my April 21 email.

This matter has highlighted further concerns about the inconsistency in the way the authority applies its policies, which suggests the taxpayer is being unnecessarily burdened in respect of the resources dedicated for their development and salaries attributed to the team supporting them.

I trust now that the council's failure has been highlighted, the procedure can commence in accordance with the 'Fraud Response Plan' as detailed in my April 21 email and as service manager you inform me of the steps being taken to address the matter.

Yours sincerely

[outlawlgo]

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

North East Lincolnshire Council's letter in response to allegations of false statement etc., and for that crime to be investigated through its whistleblowing procedure.

Tony Maione - Monitoring Officer and
Chief Legal Officer – Law
Solicitor, LL.B. (Hons), LL.M.

11 May 2016

Dear Mr outlawlgo

Re: Claims of false statement to defraud through council tax liability application


I have reviewed your email dated 21 April 2016 and as you have commenced legal proceedings in relation to this matter and as perjury allegations are matter for the court, the Council is of the opinion that this issue should be dealt with via the court process in this instance.

The Council would like to confirm that the address for service of any legal documents is:

Tony Maione, Chief Legal Officer
Legal Services
North East Lincolnshire Council
Municipal Offices,
Grimsby,
DN31 1HU.

Yours sincerely

Tony Maione, Solicitor
Chief Legal Officer and Monitoring Officer

[outlawlgo]

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

Julie Collins
Courts & Tribunal Manager
Humber & South Yorkshire Area

A Watts, Clerk to the Justices
Grimsby Magistrates’ Court
Victoria Street, Grimsby
North East Lincolnshire
DN31 1HN

Our ref: GT
06 May 2016

Dear Mr [outlawlgo],


I write in respect of your recent email to the Data Access & Compliance Unit under the name [outlawlgo].

The matter has been passed to me as this is not a Freedom of Information case.

There is no information to impart as you have already been sent the reasons for the decision made by Deputy District Judge Hayles on 26 April 2016.

If you are aggrieved by the decision not to issue a summons you can apply for judicial review of that decision.

You may wish to take independent legal advice before taking such a course of action.

I have sent you an attached guide which sets out the different stages in the procedure, along with information on fees and costs.

Yours sincerely,

Graeme Townell
Legal Team Manager
Grimsby Magistrates’ Court

Unbelievable how much front these people have.....suggesting an appeal in the High Court.

This is the court's track record when that advice is taken:

Chronology of events (from case bundle documents for high court court application).

[outlawlgo]

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

1). Mr X has been invited to attend Grimsby Magistrates Court for an ex parte private hearing and has declined the invitation.

The reasons for declining the invitation were communicated to the court as follows:

From: "outlawlgo"
To: "HU-Grimsbymclist"
Sent: Thursday, April 21, 2016
Subject: Re: outlawlgo


Dear Mr Townell

Thank you for your letter concerning my application to start a prosecution.

Regarding the hearing and the date set to lay the information, my understanding was that an information was laid as soon as it is received in the clerk's office, which was in effect 8 March 2016. In any event, it is likely, given the absence of a level playing field that as a member of the public, up against a body having access to public money for legal representation, the chances of a successful outcome would be zero, no matter how concrete the evidence.

I have taken the step of laying an information as a last resort, since being met with a lack of will on the part of public bodies funded by the taxpayer to deal with matters like this on their behalf. It has been an essential move to get this serious matter of fraud and corruption out in the open and hopefully taken seriously. However, the time, stress and expense in doing this has gone far beyond what a member of the public should reasonably be expected to commit in subsidising the services that our taxes fund.

Of course, to carry on any further with this by myself would be completely insane as the potential financial loss would be far beyond my means and would in all probability result in the loss of my home, and it is therefore suggested alternatively that all evidence I hold is made available and the case referred to the Crown Prosecution Service. This looks to be a realistic proposal because, for example, a justices' clerk may refer a private prosecution to the CPS under s.7(4) of the Prosecution of Offences Act 1985.

On another point related to this matter it may be relevant to inform you that I have contacted North East Lincolnshire Council today after looking into how matters of fraud should be dealt with and it appears that this matter has not been dealt with in accordance with its own policies. Of course it is too early in the day to know whether the council will act on my instructions to carry out an investigation into fraud and corruption in accordance with it's whistleblowing policy, but this has to be a potential remedy.

Yours sincerely

[Adamna]

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

You'll be hitting your keyboard then.... keep going.

[outlawlgo]

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

Well, yes. Evidence which was criminal? And the officer said it was civil. The officer was wrong.

Of course, the judge, lgo, police etc., are talking spuriously because like you say the matter is criminal and not something you can appeal to another judge in the casino justice system.

Some useful information on the Crown Prosecution Service's website (discovered recently) states that the police do not have to be instructed by the court to investigate perjury, which is what Humberside police claims to be its policy.

Cases Involving Allegations of Perjury

"Where a judge or magistrate believes that some evidence adduced at trial is perjured s/he can recommend that there should be a police investigation.

The absence of such recommendation does not mean that there is no justification for an investigation.

That conflicts with Humberside Police's Professional Standards Branch decision not to investigate the allegation as in its 13 January 2016 outcome letter it states:

Humberside Police do not investigate allegations of perjury unless a request to do so comes from the court themselves.

[Adamna]

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

(b) His grievance is really about the October 2015 order and the evidence of the Local Authority.

Well, yes. Evidence which was criminal? And the officer said it was civil. The officer was wrong.

[Adamna]

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

The Ombudsman and the police and the judge all ignore the fact that the legislation is set up such that this blithe invitation to use the appeal process is utterly unreasonable, and peculiar to council tax. I assume the legislation was set up this way on purpose. It needs to be recognised and dealt with. Nicolson proved it, £32,000 for his representation and a risk of a similar (or greater) amount against him if he lost. If the Ombudsman and the police and judges don't want to be put in this position, who better to campaign against it? But they just kick it away like so much irritation. Not my hot potato.

[outlawlgo]

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

Mr [outlawlgo]

Application by an individual to commence criminal proceedings by issue of summons.

This is an application by [X] to lay an information for the issue of a summons alleging an offence under section 26. Criminal Justice & Courts Act 2015 against Gillian Morley of the Humberside Police.

1). Mr X has been invited to attend Grimsby Magistrates Court for an ex parte private hearing and has declined the invitation.

2). I have read statements of evidence by Mr X dated 2nd December 2015 and 25th April 2016, together with those exhibits which were sent to the Clerk to the Justices.

3). I find that Mr X is aggrieved at a decision of the Grimsby Magistrates Court in October 2015 making or confirming a liability order in respect of allegedly unpaid council tax. He complains that the order was achieved because a Local Authority officer gave perjured evidence. He is aggrieved as well that the District Judge (Magistrates Court) hearing and making the liability order was complicit in the perjury and thus himself was guilty of perverting the course of justice.

4). I am told that no appeal has been lodged.

5). Mr X invited the Police to investigate the alleged perjury. The Police declined to. On 11th November 2015 Gillian Morley informed Mr X that the matter did not concern the police as it was a civil matter.

6). Mr X complained that the decision of the Police not to investigate was an improper exercise of a power in accordance with section 26 of Criminal Justice & Courts Act 2015, and that that failure to investigate triggers his current application.

7). Mr X has made a complaint to the Police. That has been rejected and Mr X is aggrieved by that.

8). I have referred myself to Stones Justices manual; and to R v West London Metropolitan Stipendiary Magistrate ex parte Khan (1979) and in particular to the explanation to the approach to issuing a summons by Lord Widgery C.J.

9). I have a discretion whether or not to issue a summons. I do not issue a summon because the application is vexatious

(a) Mr X seeks to proceed on an offence that is not designed for this type of circumstance. Further the application overlooks the reasonable person test in sections 26(4)(b) and 26 (5)(c).

(b) His grievance is really about the October 2015 order and the evidence of the Local Authority.

(c) He has had the opportunity to appeal the October 2015 decision but he has chosen not to.

(d) He appears to be using this application as a collateral attack to (b) above.

N P Hayles
Deputy District Judge (MC)
26/04/2016

[outlawlgo]

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

GRIMSBY AND CLEETHORPES
MAGISTRATES’ COURT
(Code 1940)

Application to start a prosecution
(s1 Magistrates’ Courts Act 1980)

Listed: 26 April 2016

outlawlgo
(Prosecution)
v
Humberside Police
(Defendant)


STATEMENT OF EVIDENCE

LIST OF EXHIBITS

Magistrates’ Courts Act, s 1 (Information)	Exhibit 1
Email from Humb Police	Exhibit 2
Email to Humb Police	Exhibit 3
Email from Humb Police	Exhibit 4
Evidence supporting allegations	Exhibit 5
Humb Police confirming recording of complaint	Exhibit 6
Humb Police outcome of complaint	Exhibit 7
Appeal against outcome of complaint	Exhibit 8
Costs suspended until outcome of proceedings	Exhibit 9
Council’s Witness Statement	Exhibit 10
Screen shots of internet forum posts	Exhibit 11
Council’s Exhibit (NELC12)	Exhibit 12
Original letter to Administrative Court	Exhibit 13
Original letter from Administrative Court	Exhibit 14
Email “Read Receipt” from Council	Exhibit 15
Email “Read Receipt” from Council	Exhibit 16
Email “Read Receipt” from Council	Exhibit 17
Letter to the Justices’ Clerk (query delivery of case)	Exhibit 18
Letter to the Justices’ Clerk (query delivery of case)	Exhibit 19
Letter to the Justices’ Clerk (requesting certificate)	Exhibit 20
S 26 of the Criminal Justice and Courts Act 2015	Exhibit 21

1. This statement and the above listed provides evidence to support the information laid on 8.3.16 [Exhibit 1].

2. On 12.11.15, Humberside Police (‘HP’) responded by stating that a reported crime (one punishable as an offence whether occurring in criminal or civil proceedings), was a civil matter [Exhibit 2].

3. An email expressing dissatisfaction with HP’s response was sent 12.11.15 stating that a complaint would be submitted about whoever within the force made the decision. A request was made for the matter to be escalated for the attention of the Chief Constable so dissatisfaction of a subsequent decision would be subject to external scrutiny rather than the force investigating itself. [Exhibit 3].

4. HP made contact on 13.11.15, advising that all evidence should be collated to support the allegations [Exhibit 4]. HP confirmed in a letter dated 23.11.15 that the Professional Standards Branch was in receipt of the complaint. The advice was acted on regarding the evidence and a statement produce dated 2.12.15 [Exhibit 5]. A number of supporting documents were indexed but withheld awaiting assurance that they would be considered but the documents were never asked for.

5. A letter dated 8.12.15 from HP confirmed that the matter had been formally recorded (CO 461/15) and enclose a copy of the complainant report [Exhibit 6]. The letter (outcome) in relation to the complaint was sent on 13.1.16 [Exhibit 7] stating that unless a request comes from the court, HP do not investigate allegations of perjury and was a matter to be argued with the court.

6. On 15.1.16 Grimsby Magistrates’ court was forwarded HP’s outcome letter and asked if it would confirm that the North East Lincolnshire Council (the ‘Council’) had in fact produced a false witness statement and inform HP (the court had been forwarded the statement [Exhibit 5] on 11.12.15). The court replied in this matter on 26.1.16 stating that it would not be taking any action regarding the allegations of perjury.

7. An appeal against the outcome of local resolution was submitted on 25.1.16 [Exhibit 8] but to date there has been no update in relation to any progress made.


Exhibits supporting false statement

8. In summary, the council applied to the Magistrates' court to obtain a Council Tax liability order relating to the 2015/16 tax year. Payments were made in sufficient amount to meet the legal obligation to pay the sums set out on the demand notice and so the account was never in arrears.

9. The Council engineered a 'non-payment' scenario, by allocating monies to a disputed sum which related to a previous year's account that was under appeal to the High Court. That sum was suspended [Exhibit 9] pending the court's decision which has yet to be concluded. The Council allocate monies to the wrong account attributing that decision to believing that the sum was no longer disputed because the appeal had been withdrawn (paras 69 & 73 of the Council’s Witness Statement submitted for Council Tax liability hearing 30.10.15 [Exhibit 10]).

10. Evidence held supports that this claim was untrue, not on account of the appeal never being withdrawn (though it hasn't), but specifically because it is beyond all reasonable doubt that the council knew it had not been withdrawn. The Council posted monies to the suspended account on the premise that it believed the appeal had been withdrawn and therefore did so fraudulently.

11. It is beyond reasonable doubt that two internet forum posts [Exhibit 11] were the source of one of the Council’s exhibits (NELC12) referred to in its Witness Statement for Council Tax liability hearing 30.10.15 [Exhibit 12]. These were two letters on which the Council sought to rely in justifying having ‘no further reason to believe that the costs were being disputed’ because the ‘application for the Judicial review of the costs' had been withdrawn.

12. The original letters one dated 20.11.13 [Exhibit 13] was in response to the Administrative Court's recommendation to withdraw the judicial review claim as the process had prompted the Magistrates to produce a draft case and deemed there no longer a need for further action on their part as the process of stating a case was underway.

Note: The judicial review claim, which was a separate matter from the application to state a case for an appeal challenging the costs, was merely the vehicle used to get the Magistrates' court to comply with the procedure. The judicial review claim therefore was for a mandatory order, not a 'review of the costs' and so the case stated appeal challenging the summons costs had not been withdrawn.

The other letter dated 25.11.13 [Exhibit 14] was the Administrative Court's response to confirm that the letter to withdraw had been accepted and the Court file closed.

13. The letters contained in the Council’s submission had been redacted and matched the entries that were posted on the public forum. The forum is the only place from which those letters could be sourced in that form. The characteristics (redaction, formatting etc.) of the letters which the Council submitted to the court were identical to the forum posts [Exhibit 10].

14. The Council had for some reason not sought the original letters and made use of the website where every correspondence connected with the matter (albeit redacted) could be conveniently accessed. It is likely that if the Council had made use of the forum to produce its submission, it would have been informed from the regular updates posted that the case stated appeal was still being pursued. Even if the forum was not regularly viewed it was enough that it did once to source content to be certain that it knowingly made a false statement. The crux of the matter is that one of the posts from which the content was sourced [Exhibit 11] (though omitted) had the following commentary accompanying it which reinforced the matter in itself:

“Back almost to square one.

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

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

Receipt of correspondence acknowledged after judicial review claim withdrawn

15. The Council had acknowledged receiving letters (email attachments) by way of 'read receipts' returned on 15 January [Exhibit 15], 14 February [Exhibit 16] and 23 April 2014 [Exhibit 17] in respect of letters dated 10 January [Exhibit 18], 13 February [Exhibit 19] and 22 April 2014 [Exhibit 20]. Those letters, which were copies of correspondence sent to the Justices' Clerk concerned matters that left no doubt that the high court appeal was still being pursued, and sent after the judicial review claim for mandatory order was withdrawn.

16. The appropriation of monies was supported by the Council on the basis that it believed the appeal had been withdrawn, and on that basis alone. The council officer had therefore wilfully made a statement material in the proceeding, which he knew was untrue. As a consequence the Council now has a court order enabling it to enforce a fraudulently obtained sum, which is likely to accumulate because of additional costs which will over time to be sufficient in amount so the council will claim justification in taking measures such as bankruptcy, charging order or applying for a custodial sentence.


Improper exercise of police powers and privileges

17. HP’s decision not to act, especially in light of the indisputable evidence must amount to improperly exercising police powers under subsections (5) and (6) of Section 26 of the Criminal Justice and Courts Act 2015 [Exhibit 21] as clearly the failure to exercise a power is to the detriment of another person.

18. This statement is true to the best of my knowledge and belief.


Dated this 25th day of April 2016


Signed:

[outlawlgo]

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

Local Govermnent
OMBUDSMAN

20 April 2016

Complaint reference:
15 020 295

Complaint against:
North East Lincolnshire Council


The Ombudsman’s final decision

Summary: The Ombudsman will not investigate this complaint that the Council allocated council tax payments to the wrong account. The courts are better placed to deal with this matter.
__________________________________________________ ______

The complaint

1. The complainant, who I refer to here as Mr B, has complained the Council has allocated council tax payments to the wrong account.


The Ombudsman’s role and powers

2. The Ombudsman provides a free service, but must use public money carefully. She may decide not to start or continue with an investigation if, for example, she believes another body is better placed to deal with the matter. (Local Government Act 1974, section 24A(6))

How I considered this complaint

3. I have considered what Mr B said in his complaint. Mr B also commented on a draft before I made this decision.


What I found

4. Mr B says he made payments to his council tax account for 2015/16 but the Council allocated these to the account for an earlier year. He says the Council did not follow the law when doing this.


5. Because the Council believed Mr B had not made the required payments for 2015/16, it applied to the magistrates’ court for a liability order.


Final decision

6. Mr B believes the Council’s actions are wrong in law. The Ombudsman cannot decide the law, only the courts can do that. Mr B could have put any arguments about the Council’s actions to the magistrates’ court which was better placed to deal with this matter. For this reason, the Ombudsman should not investigate this complaint.

Investigator’s decision on behalf of the Ombudsman

[outlawlgo]

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

Representations on the Local Govermnent Ombudsman's 11 April 2016 draft decision. Complaint reference: 15 020 295 against North East Lincolnshire Council


The Ombudsman’s draft decision

Summary: The Ombudsman should not investigate this complaint that the Council allocated council tax payments to the wrong account. The courts are better placed to deal with this matter.

Simply stating that ‘the courts are better placed to deal with this’ indicates that insufficient consideration has been given to the matter. The statement is unhelpful as no available court process has been conveyed to advise of the remedy, nor is any explanation offered for why the courts are better placed to deal with it.

The available court process in all probability has not been considered because if it had, the likely conclusion would be that the only remedy would be via the High Court either by a claim for judicial review or an appeal by way of a case stated. Clearly with all that that entails it would not be reasonable to expect that such litigation was resorted to.

In that regard, the Ombudsman has discretion 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.”

Additionally, LGO Guidance on jurisdiction (commencement of proceedings) introduces the idea that court proceedings may be the injustice as opposed to the fault, particularly concerning cases where, had no fault occurred, court proceedings could have been avoided. The relevant paragraph is as follows:

“The exclusion of court proceedings from the Ombudsman’s jurisdiction was intended to prevent us considering those matters decided by the courts using different evidential standards, and applying the more restrictive test of legality as opposed to maladministration. But there is no prohibition of an investigation about whether, had fault not occurred, court proceedings could have been avoided. This is because, in such cases the court proceedings are the injustice as opposed to the fault. We have in the past criticised councils for taking bankruptcy proceedings where – even though the application was successful – we did not feel it was a proportionate response to enforcement of a debt, given the prohibitive nature of the costs involved for the person being made bankrupt. We have also found fault with councils obtaining Liability Orders from the courts for unpaid Council Tax where they should not have done so.”

The relevant fact sheet (Council Tax) on the LGO website under heading ‘...what will the Ombudsman look for?’, mainly covers aspects pertinent to this complaint. Those under that heading which are relevant, are quoted as follows:

“We consider whether the council has done something wrong in the way it went about dealing with your council tax account which has caused you problems. Some issues we can look at are if the council:

.........

• failed to act on information you provided (especially where this affects your liability for council tax or your entitlement to discounts or exemptions)

• delayed in dealing with disputes

• made mistakes in dealing with your payments (such as failing to credit them to your account, allocating them to the wrong account, or failing to pay in council tax support you have been awarded)

• continued to take recovery action against you when it shouldn’t (such as when you have already paid off the debt, or you are keeping to an agreed arrangement to pay the debt)

.........”

The complaint

1. The complainant, who I refer to here as Mr B, has complained the Council has allocated council tax payments to the wrong account.

The Ombudsman’s role and powers

2. The Ombudsman provides a free service, but must use public money carefully. She may decide not to start or continue with an investigation if, for example, she believes another body is better placed to deal with the matter. (Local Government Act 1974, section 24A(6))

As almost all council decisions can be challenged in the courts, this reasoning could be viewed as an abuse of the Ombudsman’s discretionary powers given that it may be applied in almost every case where, for example, the investigator is under pressure to filter out complaints. With regards the use of public money, the fact that as a taxpayer I have contributed to funding the service makes a greater argument that the injustice I have been caused is investigated and should not have to resort to alternative costly remedies. LGO Guidance on Jurisdiction states with relevance to this point as follows:

“Almost any decision by a public body is actionable in the courts. As we are publicly funded to decide complaints of maladministration causing injustice, we should not be unduly prescriptive in relying on the availability of alternative remedies. Unlike many alternative remedies, the LGO is free to use, does not normally require expert representation, and we do not impose costs on those whose cases we do not uphold.”

Having been alerted to council officers who are using their public office as a means to carry out personal vendettas, if the organisation were in these circumstances to exercise discretion not to investigate there must be factored into that decision what risk it would pose as to the organisation’s reputation.

How I considered this complaint

3. I have considered what Mr B said in his complaint.

One important aspect of the complaint apparently overlooked is the Council flatly refusing to address the grievance (except the delay) with the justification being that it raised matters about a Liability Order and so was outside the scope of the complaints process. This is wholly inexcusable because regardless of the court’s decision, the council is entitled to apply to the same court which granted the order to have it quashed if it came to light afterwards that the application should not have been made. The Council is exploiting the court granting the order to circumvent scrutiny, when fully aware that it was seriously at fault in its actions.

What I found

4. Mr B says he made payments to his council tax account for 2015/16 but the Council allocated these to the account for an earlier year. He says the Council did not follow the law when doing this.

This over simplifies as well as misrepresents the complaint and is what I had predicted the Council would rely on to get away with being exposed for what is essentially gross error. Presumably the “Effective Complaint Handling” courses offered at a fee by the LGO to local authorities include content informing them how best to produce their responses so on being considered, the Ombudsman will have material to which may be referred in order to reject the complaint based upon it being outside her jurisdiction.

LGO Guidance suggests that an investigator with delegated authority to make decisions would be required to identify “aspects of complaint which are separable” from points on law, and those that can, be will be within jurisdiction. So, to give just two examples where the matters can be positively separated from questions of law are:-

i) The balance to which monies were misallocated by the council was suspended from enforcement, therefore it was maladministration that has caused the injustice

ii) Council’s 6 week delay in responding to correspondence was to my detriment, as this enabled the council to misallocate further monies during that period, and even though admitting its error, has refused to allocate it to the account I requested.

Moreover, it is evident from a report on an investigation into Newham BC (ref 08 019 113) that the ombudsman retains ‘jurisdiction to investigate administrative actions prior to the issue of court proceedings’. This ties in with the Guidance where it deals with the aforementioned ‘commencement of proceedings’ and the claim made that the LGO has ‘found fault with councils obtaining Liability Orders from the courts for unpaid Council Tax where they should not have done’. Furthermore, listed among the matters that are IN jurisdiction under the same heading is ‘the process leading up to the council’s decision to commence proceedings.

5. Because the Council believed Mr B had not made the required payments for 2015/16, it applied to the magistrates’ court for a liability order.

The Council was fully aware that the balance to which monies were misallocated was suspended from enforcement by the simple fact that the appeal to which the sum related had not been determined. The council had written in this matter to the effect that until there was an outcome to the proceedings the sum was suspended.

Draft decision

6. Mr B believes the Council’s actions are wrong in law. The Ombudsman cannot decide the law, only the courts can do that. My current view is that Mr B could have put any arguments about the Council’s actions to the magistrates’ court which was better placed to deal with this matter. For this reason, the Ombudsman should not investigate this complaint.

The complaint partly surrounded the Council’s unlawful actions and evidence of that was supported in my representations. However, what matters as far as the Ombudsman is concerned is the part of the complaint that is attributable to maladministration which even considered alone effectively accounts for the entire injustice. An investigation into the Council’s unlawful actions would clearly be beneficial, but one into the maladministration in its own right would be capable of providing the remedy sought. To reiterate an earlier point, matters can be positively separated from questions of law, which is endorsed in R v Local Commissioner etc [2000] EWCA) Civ 54 where at paragraph 47 of that judgment it states, so far as is relevant, the following:

“The Commissioner's power is to investigate and report on maladministration; not to determine whether conduct has been unlawful. So there is no reason why, when exercising the power to investigate and report, (which has been conferred on him by the 1974 Act) he should, necessarily, be constrained by the legal principles which would be applicable if he were carrying out the different task (for which he has no mandate) of determining whether conduct has been unlawful.”

The fact sheet referred to earlier but under heading ‘what happens if the Ombudsman finds that the council was at fault?’, could in almost every sense be applicable to this complaint:

“We cannot decide whether you are liable to pay council tax or whether you are entitled to exemptions or discounts. But, if we find that something has gone wrong in the way the council dealt with your council tax account we can ask it to:

• take action to put the matter right, such as correcting mistakes on council tax records and issuing the right bills and demands

• ensure that payments you have made or council tax support awards are properly paid into your account

• deal with your correspondence or appeal

• withdraw a summons or bailiffs and waive costs where appropriate, or

• pay compensation. Whether we ask for compensation and the amount we recommend will depend on how you have been affected by what has gone wrong. For example if you have received any unnecessary summonses, liability orders or bailiffs visits because of the council’s errors.

Where we find fault with the council’s procedures we will often recommend that the council makes changes so the same problem does not occur again in the future.

Examples of some complaints we have considered

Ms Y set up a standing order to pay her council tax. There was no council tax reference number on the standing order form so the council did not allocate her payments to her account. The council knew about the mistake, and Ms Y provided proof of payment several times. However, it took the council six years to resolve the problem. Meantime the council continued to take legal action against her for money she did not owe. The Ombudsman asked the council to pay Ms Y £1,800 for the many summonses, liability orders and bailiffs' letters she had received and for her efforts in pursuing her complaint over a long period. The council also agreed to make changes to its process for dealing with missing payments”

Investigator’s draft decision on behalf of the Ombudsman

[Openlaw15]

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

I would say so. The further injustice – caused ironically by the organisation which is supposed to provide a remedy for it – has forced me to research the LGO's jurisdiction / obligations etc. etc., and found that there's quite a lot of material on the subject. Some of it provided by the LGO itself. For example: Guidance on jurisdiction

Here's law commission's 2011 discussion on Obudsman law in general. http://www.bailii.org/ew/other/EWLC/2011/329.html

[outlawlgo]

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

The Ombudsman has the power to investigate but seemingly is choosing not to. Is this an abuse of discretionary powers?

I would say so. The further injustice – caused ironically by the organisation which is supposed to provide a remedy for it – has forced me to research the LGO's jurisdiction / obligations etc. etc., and found that there's quite a lot of material on the subject. Some of it provided by the LGO itself. For example: Guidance on jurisdiction