Response to Ombudsmans Draft Decision - Redact

7/24/2019 Response to Ombudsmans Draft Decision - Redact

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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 Councils final decision was


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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 Ombudsmans 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 Courts decision to grant theliability order. Firstly, summons costs are applied to the taxpayers account prior to the court

hearing, therefore is a matter concerning the Councils actions, not the Courts. 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 Ombudsmans 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 inEwing 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


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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 Ombudsmans 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


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Annex A

The Ombudsmans draft decision

Summary: Mr X complained about the Councils 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 Ombudsmans 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 Ombudsmans 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 Councils

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 taxpayers account on issuing the summons and therefore

concerned the Councils actions only.

Neither the Magistrates nor High court proceedings were material to the complaint. The content

which set out the courts 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 years liability) to a previous years account/balance thus engineering default. The

current complaint, which has to some extent been clarified above, but which ultimately seeks to


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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


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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 Ombudsmans 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 Councils 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


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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. (LocalGovernment 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 complainants favour, even when a case had gone

to tribunal, seeparagraph 35 of LGO ref: 15 000 836:

Mr C argued to the Land Registry that it should not place the charge, for variousreasons. 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 HMCTSs 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 Im 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 Ombudsmans 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)


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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 acopy 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 Courts maladministration

and so supplied with the intention for consideration in a joint investigation. However, the

Parliamentary Ombudsmans involvement appears never to have been a consideration.

What I found


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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 orderbecause 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 courts 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.


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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 Councils 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) Ihad 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 Councils 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


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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 flexibilityefficiency 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 years 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


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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 andmade 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). Representationswere 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 Ombudsmans 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 Ombudsmans jurisdiction.

Investigators draft decision on behalf of the Ombudsman.

_________________________________________________

Draft Decision for your comments

Documents

Response to Ombudsmans Draft Decision - Redact