Yet Another Summons but All Payments Are Made (Slightly late)

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Got a summons this morning from my local authority for non-payment of Council Tax. I have been paying over 12 months despite them never actually issuing me a bill. I went and found the value of the CT and have been paying via Bank Transfer a value more than the 12 monthly figure. In December the Council changed their Bank account and this was the first letter we had all year. I duly corrected my payment on the bank but only paid £1 for the month. This would have put me slightly behind and in mid-January we got a 'Council Tax Reminder Notice' (No idea if its the 1st, 2nd or final) so I split the outstanding value and paid 1/2 at the end of January.

 

So, whats the chances of swerving the £80 costs? I have paid more than the outstanding Council Tax bill so they now owe me £1.something from that.

 

My argument primarily is there seems to have been a Procedural Improprietry (sp?) in that they have failed to follow the procedure of issuing 3 reminders before preoceding to summons. Is this worth trying?

[outlawla]

...despite them never actually issuing me a bill....

 

I would think that alone would be sufficient procedural impropriety for wrongful court action.

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Spoken to the Council but they dont want to play ball on this one. Can somebody confirm that the Council do have to issue at least 2 reminders for payment before proceding to summons? Lady on the phone confirmed that they have only issued one reminder and then went straight to summons.

https://www.gov.uk/council-tax-arrears

 

This webpage seems quite clear about the issuing of reminders but being gov.uk can it be trusted?

[outlawla]

The number of reminders is dependant on whether you bring your account up to date after the first one in the financial year. For example, if after the first one you do bring your account up to date in accordance with the demand, they have to send another reminder if payments are subsequently missed. If you don't catch up after being issued a first reminder they can go straight for a liability order.

[outlawla]

Failure to pay instalments

 

Regulation 23 SI 1992/613

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I would think that alone would be sufficient procedural impropriety for wrongful court action.

 

Thats a risky strategy but worth chucking it in the mix. Used to be up to speed on speeding/parking issues so know a bit about this but how believeable is somebody who turns up and says sorry, didnt receive the bill!.

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Just read this statement on the back of the Summons:

 

“Before commencing legal proceedings for recovery, the Council ALWAYS sends a Demand Notice AND at least one statutory Reminder Notice. Failure to receive such notices does not in any way invalidate the summons.”

 

Interestingly when I quizzed the call handler she agreed that I had only one reminder letter sent and that they DID NOT send the Final Reminder at all. Bet the copy of that call gets 'lost'.

[outlawla]

The 'Demand Notice' is the initial Council Tax bill (which they didn't send).

 

That is why (technically) none of the recovery procedures that followed are lawful.

 

See regulation 23....

 

Failure to pay instalments

 

23.—(1) Subject to paragraph (2), where—

(a) a

demand notice

has been served by a billing authority on a liable person,

 

(b) ......

 

EDIT:

 

Be aware of amendment to regulation 23.

 

The Council Tax (Administration and Enforcement) (Amendment) Regulations 1994 (Failure to pay instalments)

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Im in the process of writing up a written response to the Council in question as thats what they want. I have 2 points that I think qualify as Procedural Impropriety:

 

1, The Demand Notice was never 'served'. I know 'served' and 'posted' are different things legally but the problem with saying it wasnt served is credibility. Most non-payers are regulars so the Mag isnt going to accept that argument easily.

 

2, According to the gov.uk website (which there is a link to from the Councils own website) its quite clear to me that they must issue a Reminder AND a Final Reminder for payment before proceeding to summons. The call handler I spoke to confirmed they have only ever issued one Reminder and they deny the fact they must issue at least 2 despite me reading the paragraph to them. Maybe I am misreading or misunderstanding though?

 

As it stands though the summons amount is now incorrect so where does that leave me? If they fail to correct it and still press for the stated amount do I simply point out that the summons is incorrect despite the fact that I have given them the opportunity to correct it?

 

If the do correct it then they are pressing for a liability order that covers nothing but costs. Not sure if there is any relevance in that but didnt the Banks try taking a lot of people to court purely for their costs and fail?

 

Also, as I overpaid the last installment and am now £2.81 in credit what can do with this? My bloodymindedness tells me to write to them and demand the overpayment back within 14 days and then threaten to summons them if they dont oblige? If they are determined to claim their costs then I want to get my moneys worth out of them.

 

Final point for now. I cant find an answer but is there an upper ceiling on charges for the issue of summons? Council wants £80 but I see a lot of Authorities charge £40, some charge as little as £28. The letter I am writing requests a full breakdown of their costs as they are obliged to be transparent in their dealings and that they should not be 'profiteering' from this. Is £80 reasonable to print a piece of paper and put it in the post? The Summons has a scanned and printed scribble on it, its not like somebody has actually looked at it and signed it. The Summons is also in the same typeface and layout as the Council issued letters so Im not convinced the local Magistrates have issued the summons at all.

[outlawla]

Be handy to know which local authority....it appears all costs are front loaded to the summons (£80). I take it the summons doesn't state that further costs may be incurred if the court grants a liability order?

 

If so there are good odds on there being some relevant information floating about which might be useful to include in your complaint.

[outlawla]

2, According to the gov.uk website (which there is a link to from the Councils own website) its quite clear to me that they must issue a Reminder AND a Final Reminder for payment before proceeding to summons. The call handler I spoke to confirmed they have only ever issued one Reminder and they deny the fact they must issue at least 2 despite me reading the paragraph to them. Maybe I am misreading or misunderstanding though?

 

If that information on the Government's website originates from the Department of Communities and Local Government then I think you can take it with a pinch of salt.

 

Have a look at the link (sample first reminder):

 

First (and only) reminder

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If that information on the Government's website originates from the Department of Communities and Local Government then I think you can take it with a pinch of salt.

 

Have a look at the link (sample first reminder):

 

First (and only) reminder

 

Doesnt entirely fit my situation though as I made the next payment. I had no agreement to pay over 12 months, I just took the initiative to make payments. Its only today have they noticed I wasnt paying enough each month.

 

As for gov.uk and its accuracy, there isnt enough space in this forum for all the fun ive had DVLA over the years, especially with their online and interactive services.

[outlawla]

Doesnt entirely fit my situation though as I made the next payment. I had no agreement to pay over 12 months, I just took the initiative to make payments. Its only today have they noticed I wasnt paying enough each month....

 

If you brought your account up to date, and it was your first reminder, then the law says should there be a subsequent failure to meet payment, then the council must send you another reminder before withdrawing the instalment facility and proceeding to a liability order application.

 

It's possible (owing to not knowing the exact instalment amount) that your payment didn't exactly cover the overdue sum. This is more likely because the council tax system's parameters were set on your account for instalments over 10 months. If you had council tax outstanding for a previous year then any payment which didn't match the computer's set parameter would likely be allocated to the previous year's account. I doubt that is the case or it would have happened sooner.

 

In my view, if any of the above accounts for why they proceeded with court action, then it clearly shows that they have no one checking before issuing summonses and rely entirely on the council tax processing system. That would also be reason to argue that they had not incurred expenditure to justify summons cost of £80.

 

The Magistrates' court is also obviously to blame by rubber stamping liability orders. There's probably only one Clerk to Justices serving several Magistrates' courts in the relevant local justice area. This one Clerk's signature is likely to be pre-printed on each local authorities' summons template which are churned out each month on instructions from the council's computer system.

 

Some relevant case law:

 

In the case between "Regina v. Brentford Justices, Ex parte Catlin" it was held that “a decision by magistrates whether to issue a summons pursuant to information laid, involves the exercise of a judicial function, and is not merely administrative.”

 

Lord Chief Justice, Lord Widgery’s closing judgment:

“

...

.before a summons or warrant is issued the information must be laid before a magistrate and he must go through the judicial exercise of deciding whether a summons or warrant ought to be issued or not. If a magistrate authorises the issue of a summons without having applied his mind to the information then he is guilty of dereliction of duty...

.

 

 

 

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That sounds like another gamble, attacking the Magistrates themselves but is it conceiveable that a Clerk or Mag actually looks at every application as required? If they look at every case then surely it takes no more time to actually sign it as well. google certainly throws up a lot of similar cases where people have questioned the signature but little consistency on its outcome.

 

For clarity, I paid another installment after the first reminder. However, the reminder is for the entire amount due. The following paragraph stated I can contimue paying in installments but its past January and they dont know I was on 12 months (I didnt ask but then they didnt send me a Demand so how could I ask?). The reminder was dated 13/01/15 but it was received about the 25/01/15 so I had already missed the payment window due to sloppy postal practice (which appears to be an issue in my neighbourhood). Should have checked the envelope for the postal date, basic stuff from batting away potential speeding tickets in the past. I do not have any arrears and have always paid (grudgingly) Council Tax so I have no previous for poor/late/missed payments.

 

Still refining the letter I am going to be sending them but should I introduce the question about which Clerk/Mag actually reviewed the application or should that be addressed directly to the Court?

 

I am wondering if I just go quiet on the matter now and turn up on the Summons date. Depends what happens but I hope they dont issue a new summons in which case can I simply argue the summons amount is incorrect? As it stands they will only be claiming for the cost of issuing the summons minus £2.81 that they owe me. I will leave that on account until the hearing then to be awkward I will ask for it back just before the new TAX period begins. This £80 demand will be costing them more than £80 over the next year but they tend to be a bit shortsighted in these matters.

 

Plenty of food for thought in this thread though and thankyou for the advice so far. I will keep badgering for the next month, might as well amass as much amunition as possible. If nothing else it will tie them up for as long as I can string it out for. No that being awkward is my thing of course.

[outlawla]

I don't think you will get anywhere with the signature argument (see below, item 4) though in my opinion the case law is valid, however, these are Kangaroo courts remember.

 

This seems to be an accurate transcript of "the scanned original...."

 

 

JUSTICES' CLERKS' SOCIETY

 

Procedure in Liability Order Applications

 

1. Background

 

Council has been contacted by Peter Downton of HMCS Enforcement Team concerning the way HMCS records the making of liability orders in Council Tax cases due to challenges to the process in various quarters, including MPs.

 

The concerns raised are:

a) that the procedure is not transparent;

 

b) HMCS can not demonstrate that it is accurately recording the orders made

 

c) whether the orders are in correct form since they are not wet-ink signed.

Council has considered the issues, and in light of the procedures operating in their courts is of the view that the following process is lawful and transparent.

 

The key objective of any procedure is that an accurate record is made of every decision of the court and retained. It is not possible for each individual complaint to be case entered, recorded, and resulted, (save by a massive expansion in the number of legal advisers and court assistants). However the objective is achieved within existing resources by recording results against the council's printout and retaining that as an annexe to the register.

 

2. Procedure: Issuing summons

 

1. The council delivers one or two complaint lists to the court with their fee (or an undertaking to pay it later)

 

2. The list is reviewed by a legal adviser with delegated powers who issues the summonses

 

3. Either one copy of the list is returned endorsed to the council and the court retains the other endorsed list, or the court retains a single endorsed list and the council is informed of the outcome (in reality it is extremely unlikely that any summons will not be issued so this does not need to be a detailed notification). The council then print the summonses, pre-printed with the Justices' Clerk's signature, and post them out.

 

3. Procedure: Liability Order Application

 

1. The legal adviser is given an up to date printout of the Council's applications by a Council representative. This will set out the name and details of each defendant and against that the order the Council wishes the court to make.

 

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.

 

4. The legal adviser records the overall number of liability orders made, withdrawn, dismissed and adjourned. This may be recorded on a file cover or on the copy printout, or both.

 

5. In addition for each case where the court does not make the order set out in the Council's printout, the legal adviser notes the actual order made against the defendant's name in the printout.

 

6. This means that there is a definitive record on the Council's printout of all orders made.

 

7. The numbers of orders granted, withdrawn etc. recorded by the legal adviser, are input after court and appear in the Libra register.

 

8. Any adjourned cases are individually case-entered and resulted (to generate a door list and appearance in the Libra diary).

 

9. The council's printout, marked up by the legal adviser, is kept permanently, as an annex to the register.

 

4. Orders

 

The Council's software generates the liability orders. These may be rubber-stamped or pre-printed with the Justices' Clerks signature. There is no requirement for a wet-ink signature. This is for two reasons, set out in the Magistrates' Courts Rules 1981. Firstly, the Rules only require signatures (of any sort) on forms prescribed by the Rules (Rule 109(1)) and a liability order is not prescribed. Even if it were, rule 109(3) states "where a signature is required on a form or warrant other than an arrest, remand or commitment warrant, an electronic signature on the form will suffice.

 

5. Procedures prior to the hearing

 

The Court and its staff should not give the impression that the Council is in charge of the process.

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Curious? Because of the unique way public services work there is no way of checking what your account balance actually is. This makes it difficult to make a precise payment. With this in mind on Monday I made a Credit Card payment that is slightly over what I owe (including the £80 charge). On Wednesday they credited the payment (including the payment fee of £1.20) back to my card. I checked with the card supllier who confirm that it was an action taken by the receiver and not an action by the card supplier.

 

So, with a summons next Thursday how do I play this one. I have proof of an attempted payment and proof they have rejected the payment. Why would they do that?