My question, I understand this is not a credit agreement however If my Local Authority (LA) has broken the law in an attempt to recover an over payment how can it then use the courts?

When it comes to finance:-

(1) Failure to comply with the law means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.

(2) In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.

(3) In particular, a firm should not in such cases either threaten court action or other enforcement of the debt or imply that the debt is enforceable when it is not.

Backstory:- In 2012 received a letter inviting me to a interview under caution. I attended and then never heard anything for 2 years then I received a letter advising they are not going to pursue criminal charges but are going to recover the debt just under 15k.

Here is my catalogue of errors:-

26/11/2015

A subject access request was issued to LA under the data protection act 1998. The request was made for any and all evidence that LA holds that suggests or confirms that I was overpaid any type of benefits. (STILL NOT RECEIVED A RESPONSE)

27/11/2015 - 1

A dispute was raised under The Housing Benefit Regulations 2006. The legislation specifically states that just because an overpayment is recoverable, does not mean that it must be recovered. The law goes on to confirm that a recoverable overpayment may be recovered at the local authority's discretion which must be documented.

A subject access request was issued to LA under the data protection act 1998. The request was made for the document that confirms that a meeting did take place and that LA decision to recover the debit is both within the guidelines and lawful.

27/11/2015 - 2

A dispute was raised under Regulations 17 to 30 and Schedules 1 and 2 of The Social Security (Overpayments and Recovery) Regulations 2013. This was raised due to LA issuing an attachment of earning order (DAE – Dated 24/11/2015) to my employee seeing a deduction rate of 20%. The legislation confirms that the deduction rate will be 11% only.

27/11/2015 - 3

A dispute was raised under The Social Security (Overpayments and Recovery) Regulations 2013. The legislation clearly confirms that I and my partner should of received a “letter before action” before any DEA was processed. It also clearly confirmed that “A DEA cannot be requested against a partner’s earnings”. On 24/11/2015 I received a copy of a letter which was address to partners employer ordering them to deduct money from my partners salary. Again the rate the requested was 20% which is unlawful as pointed out above. Furthermore to this it is illegal to issue a DEA to my “partners” employer as documented in the legislation.

30/11/2015

I received an email from LA confirming they have broken the law by trying to recover the debt unlawfully.

17/12/2015

I raised a dispute surrounding the service in which I had received through the process of LA trying to recover the money. I explained clearly to LA that I had plans to declare myself bankrupt. In response LA stated that if I did declares me bankrupt that LA could still lawfully recover the debt.

After review of the Housing Benefit Overpayments Guide for Local Authorities it’s clear that the debt will be written off as per the normal bankruptcy process. To add to this I would also like to bring your attention to the following documentation which is taken directly from the DWP guide:-

32. DWP had previously held the view that a benefit overpayment (including HB or Council Tax Benefit (CTB)) does not become a fixed liability until such time as the decision maker has made a determination that the overpayment, or part of it, is recoverable under social security legislation.

33. This was confirmed in 2005 in the case of ® Steele v Birmingham City Council and the Secretary of State for Work and Pensions. You can refer to previous bulletins HB/CTB U1/2011, HB/CTB U6/2011, and HB/CTB U1/2012

34. When a debtor is discharged from bankruptcy then any non-fraud debts, where the end date of the overpayment is before the date of the bankruptcy order, must be written off. This must take effect immediately.

35. Legal advice is that DWP should do everything possible to identify cases impacted by this judgement.

Source:-http://www.rightsnet.org.uk/pdfs/G10_2013.doc

Once again this documentation confirms that the debt will be written off as per the normal bankruptcy process.

I believe this evidence confirms that LA deliberately miss lead I to increase LA possibility of recovering the overpayment of benefits which again is acting unlawfully and unfairly.

11/04/2016 - 1

To date I have not received a response to my subject access request dated 26/11/2015. This is a clear breach of the Data Protection Act 1998. As a result I have to assume that they have no evidence that suggests or confirmed that I & my partner where living together.

11/04/2016 - 2

To date I have not received a response to my subject access request dated 27/11/2016. This is a clear breach of the Data Protection Act 1998. As a result I have to assume that the meeting never took place and as a result I would also like to challenge that the policy of LA would is not in the interest of claimants; and would prevent the use of discretion. As per the legislation each case should be considered on its own merits having regard to the claimant's circumstances.

11/04/2016 - 3

To date I have not received a direct response to my complaint surrounding the service to which I have received from LA.

29/09/2016

A subject access request was issued to LA (Halton Borough Council) under the data protection act 1998. The request was made for a copy of the liability order. LA have responded to my request but have only provided me with a bill not the information requested.

07/10/2016

As per the Attachment of Earnings Act 1971 a maximum of TWO orders can be deducted at any one time and I have to be issued with a copy of each order. I have not received a copy of any order and as of 7/10 they are now taking THREE at once.

Another point I would like to raise is under section 4.241 of the Social Security (Overpayments and Recovery) Regulations 2013

“4.241 When an appeal is brought before recovery has begun, or during recovery, it is good practice to suspend action until the appeal has been decided“.

LA have ignore this legislation and continued to attempt to recover the overpayment when there are several disputes still outstanding. Again this is unlawful.

More Case Law support my claim:-

2. R (on the application of Newham London Borough Council) v Stratford Magistrates' Court &Selwyn Dublin (Interested Party)[2008] EWHC 125 (Admin), [2008] RA 108, [2008] All ER (D) 17 (Jan) [2008]. The court must be satisfied that one of the following conditions are met:

• the order was made as a result of asubstantial procedural error, defect or mishap, and / or

• that there was a genuine dispute as to that liability.

substantial procedural error – I had not received an initial summons in relation to the claim in order to defend myself. The relevant legislation is outlined under Section 14 of the Magistrates Court Act 1980.

there was a genuine dispute as to that liability – I have explained my dispute above.

More supporting Case Law:-

3. R (Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1980 (Admin) (“Brighton & Hove”). HHJ Burnton held that a court should not set aside a liability order unless it is satisfied that there is a genuine and arguable dispute as to the defendant’s liability for the rates in question,

AND

a. the order was made as a result of asubstantial procedural error, defect or mishap.

AND

b. the application to the justices for the order to be set aside is made promptly after the defendant learns that it has been made or has notice that an order may have been made. Prompt action should be taken within a matter of days or at most a very few weeks.

genuine and arguable dispute – It’s clear that my argument is genuine.

substantial procedural error, defect or mishap – I have proven above that the claimant is operating outside of the law on this matter to recover this debt.

the application to the justices for the order to be set aside is made promptly after the defendant learns that it has been made – It has been less than 3 weeks since I was made aware of the liability orders.

LA alsol processed a county court claim against myself for an over payment of housing benefits the case number is CXXXXXX

I was successful in defending this claim and the claim was struck out on the 12th July 2016.

I have now received a letter from my LA stating that they have entered my case into the High Court for Enforcement Proceedings.

Where can I go from here any help would be appreciated.

Perhaps the first thing you should do is to rewrite this thread with bullet points so that it is readable. You might get some help then

You need to clarify whether it's Housing Benefit / Council Tax Benefit (or the replacement Council Tax Reduction) which you are querying - each of them has a different process to go through (in respect of the Council Tax side it depends on when the monies are from). You need to separate your issues - just because the council may have failed in one aspect (for example the DPA requests) doesn't make action to recover council tax unlawful.

In respect of council tax-

The decision regarding the assessment of CTB/CTR is a separate aspect to that of recovering outstanding Council Tax - whilst CTB/CTR is not paid for a period then the local authority can recover any balance due, the question of why CTB/CTR has not been paid is not relevant to the Council Tax recovery action. (Any dispute over the CTB/CTR needs to be addressed as an appeal under the specific rules for the scheme - if the CTB/CTR is then paid then the Council Tax charge will be adjusted).

3. R (Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1980 (Admin) (“Brighton & Hove”). HHJ Burnton held that a court should not set aside a liability order unless it is satisfied that there is a genuine and arguable dispute as to the defendant’s liability for the rates in question,

R v Bristol Magistrates Court, Ex Parte Willsman and Another covers the case where CTB was paid (and can be argued for CTR). The court in this case confirmed that a benefit claim or dispute did not prevent a liability order being applied - the basis of the case is that CTB (and CTR) is only relevant to the collection of Council Tax as an amount that is credited to a balance, the reasoning behind the calcualtion is not relevant.

Now that CTR has replaced CTB the issue is slight different in that CTR is a reduction specifically written in to the Council Tax system (S13A of the LGFA92) whereas CTB was completely separate. As a discount the Magistrates are specifically prevented from considering it whilst deciding a liability order application as it falls as a Valuation Dispute under S16 of the LFGA92.

You need to look at Wiltshire v Piggins (2014) for an up to date view on the Magistrates ability to consider refusing a liability order (it clarifies the lack of ability to refuse the order on grounds covered by S16 of the LGFA92) so on that side you're pretty much unable to dispute the order - there are also more recent cases regarding the re-opening of a liability order application hearing.

To go down the other route of disputing the order, on procedural grounds, the onus would be on you to show that the Local Authority had not complied with the procedural process of applying for the liability order. The local authority will be able to show that they issued the required documents as required, you'd need to successfully prove otherwise to stop the magistrate granting it.

So far nothing I can see in your post regarding what the council have done would stop the order being granted or give sufficient rise for the courts to review their decision to grant a liability order. You would need to prove to the court otherwise.

As per the Attachment of Earnings Act 1971 a maximum of TWO orders can be deducted at any one time and I have to be issued with a copy of each order. I have not received a copy of any order and as of 7/10 they are now taking THREE at once.

An individual local authority can only issue two attachment of earnings orders for council tax - one per order, to a maximum of two overall (as per the council tax (administration & enforcement) regs 1992). Other orders can be issued under separate processes for other debts and run alongside council tax attachments.

For over 12 months the LA have been deducting 3 attachment of earnings for council tax and 1 for housing benefit.

The balance in which is now going to the high court and thread is predominantly about is housing benefit and not council tax. I do not understand how I successfully defended the claim in county court and now they are taking in to high court.

I also applied to magistrates court to have the liability orders quashed for council tax. The judge ordered them to provide me all the information requested this was 3 months ago and not received anything that address all of my requests as stated in my original thread.

The balance in which is now going to the high court and thread is predominantly about is housing benefit and not council tax. I do not understand how I successfully defended the claim in county courticon and now they are taking in to high court.

For it to be issued with High Court proceedings there has to have been either a case heard in the High Court or a case heard in the County Court and then enforcement transferred. If the original case was found in your favour it cannot be from that application unless it was appealed and they won. For them to enforce a case they have won then there must be a CCJ - it's worth checking the official register - https://www.trustonline.org.uk/search-yourself

For over 12 months the LA have been deducting 3 attachment of earnings for council tax

In which case you need to point out reg 37(4) of the administration & enforcement regs 1992 (as amended) by way of a formal complaint. If they don't respond to the complaint then you to contact the Local Government Ombudsman.

I also applied to magistrates court to have the liability orders quashed for council tax. The judge ordered them to provide me all the information requested this was 3 months ago and not received anything that address all of my requests as stated in my original thread.

In which case you need to go back to the court as they'll be looking to schedule a hearing - they need to know of the delay as it'll be well past any deadlines. You'll still need to prove the council didn't issue the statutory documents correctly (your other disputes over discounts etc don't come in to it in this argument). You yourself can't actually apply to the magistrate for the order to be quashed (only the local authority can make the request), your request is just for a full hearing in to the granting of the order, the court will decide whether to quash the order on their prerogative.

Craig

Thanks for the response Craig,

For it to be issued with High Court proceedings there has to have been either a case heard in the High Court or a case heard in the County Court and then enforcement transferred. If the original case was found in your favour it cannot be from that application unless it was appealed and they won. For them to enforce a case they have won then there must be a CCJ - it's worth checking the official register - https://www.trustonline.org.uk/search-yourself

I email the court 2 maybe 3 months ago with regards to the case and no where in the email does it state or suggest they have appealed and I have not received any notification from the courts of such either which I would do I assume. I have also now had any notification from the high court of a case that is going to be heard. Again I think I would have to to be able to put in a defence.

In which case you need to point out reg 37(4) of the administration & enforcement regs 1992 (as amended) by way of a formal complaint. If they don't respond to the complaint then you to contact the Local Government Ombudsman.

I have pointed this out to them before but no notice was taken the same as they have not responded to any of my SAR or a judges request.

In which case you need to go back to the court as they'll be looking to schedule a hearing - they need to know of the delay as it'll be well past any deadlines. You'll still need to prove the council didn't issue the statutory documents correctly (your other disputes over discounts etc don't come in to it in this argument). You yourself can't actually apply to the magistrate for the order to be quashed (only the local authority can make the request), your request is just for a full hearing in to the granting of the order, the court will decide whether to quash the order on their prerogative.

When we was in court the judge asked me and the LA to sit down and come up with a agreement. At this point I baught up the in order for this to happen I need all the document in which I have requested provided to me. I the judges words "Do you have the requested documented" LA "yes" Judge "Provide them to the claimant then".

It clear from the communication and actions of the LA they have no regard for the Law.

How can I complain to as this is shocking at should be allowed to happen. If I bake the law I am either arrested or made to prove my own innocence.

I email the court 2 maybe 3 months ago with regards to the case and no where in the email does it state or suggest they have appealed and I have not received any notification from the courts of such either which I would do I assume. I have also now had any notification from the high court of a case that is going to be heard. Again I think I would have to to be able to put in a defence.

If a case is going to be heard then that's a different matter - it sounds like it either hasn't been through the process yet or it's an appeal. The only way a case would usually be heard via the High Court is if it is an appeal against a tribunal decision, an appeal against a county court decision or it is a high value case (over £100,000k for money only claims). It may be that the council have appealed the previous county court decision. Part 52 of the Civil Procedure Rules will give the finer points but you need to telephone the court and ask if an appeal has been lodged (or the council's legal team) - they should be able to confirm from the case reference number. If it was transferred to the High Court just for enforcement by way of a writ of control then there isn't usually a need for a hearing to be held but in that case there'd already be a CCJ lodged (which can be checked on link I posted earlier)

If you can show that you've used the council's complaints procedure and nothing has come of that then you need to complain to the Local Government Ombudsman about their administration - including issuing too many AOE's.

In respect of any disputes over council tax liability, discounts (including council tax reduction) or exemptions then an appeal must be made to the Valuation Tribunal.

In principal a High Court action for a judicial review can be launched against a local authority for their actions but that will get very costly, very quickly.

Wit hregards to the CCJ I get my credit report from experian, equifax, callcredit and no CCJ is registered. I have also not received any notification from court confirming a CCJ has been registered.

Can I not issue a claim in county court for compensation because their actions have put me at a disadvantage leaving me no way to defend this claim and yet they are still taking money even though it clearly in dispute.

Wit hregards to the CCJ I get my credit report from experian, equifax, callcredit and no CCJ is registered. I have also not received any notification from court confirming a CCJ has been registered.

Which would fit with an appeal against a decision which went in your favour - there would be no CCJ granted if the defendant had won a case.

Can I not issue a claim in county courticon for compensation because their actions have put me at a disadvantage leaving me no way to defend this claim and yet they are still taking money even though it clearly in dispute.

You could try but due to the issues involved it would probably more come under a judicial review which is the High Court. You'd probably need a lawyer who has run through these sorts of cases before as the process can be far from clear (often there's no dedicated forms etc)

In respect of recovery action - council tax or housing benefit - the fact it's in dispute doesn't automatically stop any action. Best practice may indicate that problems should try to be resolved but it isn't generally a binding requirement.