Me v the council "test case"

[EDW2000]

Following the Rev. Nicholson case I am going to default on council tax and argue the costs of £75.00.

 

http://www.bailii.org/ew/cases/EWHC/Admin/2015/1252.html

 

I am going to challenge the validity of the costs being on the summons as the only amount that can be

claimed is the outstanding sum.

 

Application for liability order

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

 

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

 

The summons states the £75.00 is "Summons Costs". The issue fee is only £3.00

[ploddertom]

I think you will find yourself on a loser over this as £75 will be looked upon as reasonable. If you think their only costs are £3 then you have been seriously misguided - have a read of some of the threads about this in the Bailiff Forum.

[EDW2000]

I think you will find yourself on a loser over this as £75 will be looked upon as reasonable. If you think their only costs are £3 then you have been seriously misguided - have a read of some of the threads about this in the Bailiff Forum.

 

I suggest you read the judgement, what is reasonable is not the question, it is costs reasonably incurred.

 

The costs incurred are

 

Letter before summons (possibly)

Cost of sending info to court for summons (done by computer)

£3 issue fee

Cost of printing and sending summons

Cost of attending court (councils send clerk not a lawyer)

 

Can you think of anything else?

 

I have done a FOI request about costs.

[ploddertom]

The Judgment for Rev Nicholson only applies to him & no one else, each has to be taken on its merits. Beware what you wish for as many Councils are now looking more closely at the actual costs of issuing Liability Orders so could increase. There is a blanket cost in Wales capped at £70. You run the risks of the Council applying for costs against you should you lose.

[outlawla]

It looks from the way your heading with this that you are likely, at some point, to arrive at the conclusion that there is something wrong with the Council Tax (Administration and Enforcement) Regulations 1992, which allows a local authority to add 'Court Costs' without the court ordering them (Reg 34(5)).

 

From looking into this further it appears the Council Tax Regulations may be ultra vires the enabling Act (the Local Government Finance Act 1992).

 

Annex C of this document (Consent Order) provides the rationale for asserting this.

[id6052]

not knowing the internal processes for your Local Authority, however trying to contemplate any possible costs they may try to claim, they could be: -

 

final notice stage

officer time in reviewing account to determine whether account should proceed to final notice stage

 

production and printing of final notice

 

officer time in issuing final notice

 

postage and envelope cost

 

officer time dealing with enquiries/responses/challenges to final notice

 

summons stage

officer time in reviewing account to determine whether account should proceed to summons stage

 

cost of sending information information to court

 

issue fee

 

production and printing of summons

 

officer time in issuing summons

 

postage and envelope cost

 

officer time dealing with enquiries/responses/challenges to summons

 

court stage

officer time and travel costs in attending court

 

my mind has gone blank at this stage

 

not sure whether Local Authorities incur additional IT costs for CT enforcement software package above and beyond the normal cost for CT administration software package

[Coughdrop]

Following the Rev. Nicholson case I am going to default on council tax and argue the costs of £75.00.

 

http://www.bailii.org/ew/cases/EWHC/Admin/2015/1252.html

 

I am going to challenge the validity of the costs being on the summons as the only amount that can be

claimed is the outstanding sum.

 

Application for liability order

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

 

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

 

The summons states the £75.00 is "Summons Costs". The issue fee is only £3.00

 

As someone once said, "There is a fine line between bravery and stupidity." Be careful to ensure you remain the right side of it!

 

I'm not insinuating you're stupid, but £75 is so very close to what charges are capped at in Wales, if it were me I'd think long and hard, and be absolutely sure in my own mind that not only was I onto a winner, but also I was prepared to go to jail or be made bankrupt if everything went wrong and that funding was in place to get me through the various courts.

 

Tread carefully - ultimately only you can decide.

[EDW2000]

The Judgment for Rev Nicholson only applies to him & no one else, each has to be taken on its merits. Beware what you wish for as many Councils are now looking more closely at the actual costs of issuing Liability Orders so could increase. There is a blanket cost in Wales capped at £70. You run the risks of the Council applying for costs against you should you lose.

 

 

Again you show your ignorance of how the law works.

 

It is not as you put it "actual costs of issuing Liability Orders", the Mags court issues the order, the sum in question is "reasonably incurred by the applicant in obtaining the order".

 

Obtaining is not issuing.

[EDW2000]

The Judgment for Rev Nicholson only applies to him & no one else, each has to be taken on its merits. Beware what you wish for as many Councils are now looking more closely at the actual costs of issuing Liability Orders so could increase. There is a blanket cost in Wales capped at £70. You run the risks of the Council applying for costs against you should you lose.

 

 

The most they can claim is what is on the summons - £70. Hardly going to bankrupt me, is it?

[EDW2000]

The regulation needs clarifying.

 

 

(5) If, after a summons has been issued in accordance with paragraph (2) but before the application is heard, there is paid or tendered to the authority an amount equal to the aggregate of—

(a)

the sum specified in the summons as the sum outstanding or so much of it as remains outstanding (as the case may be); and

(b)

a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application up to the time of the payment or tender,

 

the authority shall accept the amount and the application shall not be proceeded with.

 

So, take this example:

 

 

Amount outstanding £100

Summons Costs £100

 

 

If you pay £200 they have to stop proceedings.

 

But what if you don't agree with the £100 summons costs and pay £50?

 

The councils accepts the £150 and proceeds to court but this is done on the grounds that the council decided what was reasonably incurred and surely only a court can decide what is reasonably incurred?

 

How can a council charge the same costs for applications which are paid before hearing and after hearing? Cases without hearing must cost less because no attendance at court.

 

 

 

 

 

(5) If, after a summons has been issued in accordance with paragraph (2) but before the application is heard, there is paid or tendered to the authority an amount equal to the aggregate of—

(a)

the sum specified in the summons as the sum outstanding or so much of it as remains outstanding (as the case may be); and

(b)

a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application up to the time of the payment or tender,

 

 

 

(3)The regulations may include provision that, where the sum payable is paid after the order has been applied for but before it is made, the magistrates’ court shall nonetheless make the order in respect of a sum (of a prescribed amount or an amount determined in accordance with prescribed rules) in respect of the costs incurred in applying for it.

Edited May 29, 2015 by EDW2000

[outlawla]

It's interesting that the equivalent regulations for Business Rates do not include an equivalent of regulation 34(5). They no not provide for costs to be added unless the court makes a liability order.

 

As far as I know, all local authorities, except for one, unlawfully apply Business rates in respect of court costs in the same way as Council Tax.

 

http://www.legislation.gov.uk/uksi/1989/1058/regulation/12/made

[EDW2000]

Messy legislation. The Mags wont know what to do, so prolly go to the High Court.

 

 

Application for liability order

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

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

 

There is no mention of costs being allowed on the summons. Was this covered in Rev. N' case?

[outlawla]

It was determined in the Reverend's case that the additional cost after the complaint has been instituted in respect of obtaining a liability order (Reg 34(7)) can not be included in respect of merely instituting the summons (Reg 34(5)).

 

I don't think the specific point about costs appearing on the summons was addressed at any time.

 

My opinion is that any mention of costs on the summons should be for information only. Local authorities seem to imply that the outstanding debt increased by the summons amount is what the new council tax debt is (on serving the summons). They will have also added this to the householders account (on serving the summons) which in my opinion is unlawful.

[EDW2000]

"the amount stated in the final notice is wholly or partly unpaid"

 

"order against the person by whom it is payable."

"it" refers to the amount on the final notice (or the unpaid element of the amount the final notice.

 

Does this exclude claiming costs? I think so. Wonder what the HC will say.

[outlawla]

Have a look at the "Council Tax Practice Note No. 9" which provides the following guidance at paragraph 3.3:

 

3.3 The form of the council tax summons is not prescribed and authorities should liaise with the Clerk to the Justices to agree an acceptable format.......The summons should set out the sum outstanding for which the authority is applying for a liability order. It can also state the costs incurred to date and point out if these costs plus the sum outstanding are paid then the authority will not proceed with the application for a liability order.

[EDW2000]

Have a look at the "Council Tax Practice Note No. 9" which provides the following guidance at paragraph 3.3:

 

 

Guidance is wrong (and old)

[outlawla]

For argument's sake let's say that the guidance is right, and in order to oblige the council to end proceedings a sum equal to the amount reasonably incurred by the authority (up to payment or tender) is payable on receiving a summons. This all occurs before the case is brought before the court and so the court has no influence whatsoever.

 

Allowing the authority to determined its own level of costs without the court awarding them is allowing it to print money. The regulations therefore can not function lawfully and in any event, the enabling Act does not confer powers on the secretary of state to make the regulations in the way they've been enacted.

[EDW2000]

It looks from the way your heading with this that you are likely, at some point, to arrive at the conclusion that there is something wrong with the Council Tax (Administration and Enforcement) Regulations 1992, which allows a local authority to add 'Court Costs' without the court ordering them (Reg 34(5)).

 

From looking into this further it appears the Council Tax Regulations may be ultra vires the enabling Act (the Local Government Finance Act 1992).

 

Annex C of this document (Consent Order) provides the rationale for asserting this.

 

 

Did this case ever get to court? It is well argued but not by a lawyer is my guess.

[outlawla]

Did this case ever get to court? It is well argued but not by a lawyer is my guess.

 

Correct! No lawyer, nor anyone with any legal background has been involved. Neither has it made it before the Queens Bench, though the Magistrates produced a draft case stated after being coerced by an application for judicial review for a mandatory order. Since then the Magistrates' court has sought to pervert the course of justice by refusing to comply with the procedure rules thereby preventing any progress of the case.

 

A complaint is being drafted for the Local Government Ombudsman appealing one matter involving the council and will be suggested to the LGO that it jointly investigates in conjunction with the Parliamentary Ombudsman under powers granted by 2007 Regulatory Reform legislation regarding the judicial element of the grievance.

[EDW2000]

Correct! No lawyer, nor anyone with any legal background has been involved. Neither has it made it before the Queens Bench, though the Magistrates produced a draft case stated after being coerced by an application for judicial review for a mandatory order. Since then the Magistrates' court has sought to pervert the course of justice by refusing to comply with the procedure rules thereby preventing any progress of the case.

 

A complaint is being drafted for the Local Government Ombudsman appealing one matter involving the council and will be suggested to the LGO that it jointly investigates in conjunction with the Parliamentary Ombudsman under powers granted by 2007 Regulatory Reform legislation regarding the judicial element of the grievance.

 

 

I doubt the LGO will consider a complaint that should be dealt with by the courts.

 

Summons should come in mid June then I am in ct 10 July.

FOI's have been served.

Council knows I am challenging costs, so no ambush on the day.

 

The early settlement ultra vires point is interesting but no use to me.

Edited June 1, 2015 by EDW2000

[outlawla]

I doubt the LGO will consider a complaint that should be dealt with by the courts.

 

Summons should come in mid June then I am in ct 10 July.

FOI's have been served.

Council knows I am challenging costs, so no ambush on the day.

 

The early settlement ultra vires point is interesting but no use to me.

 

The council was negligent in my case in applying for a liability order after payment in full of the debt was made (plus reasonably incurred costs) after being served a summons, but before the case was heard. The authority also refused to apply to the court for the order to be quashed after a formal complaint requested this and after it was demonstrated without doubt that the council had not incurred the level of costs it claimed in my particular case. Therefore the LGO has jurisdiction for that element of the grievance.

 

The Parliamentary Ombudsman has jurisdiction for complaints about the judiciary and there is legislation which provides for joint investigations between the two watchdog organisations.

 

Anyhow, good luck with the challenge and keep us updated.

[EDW2000]

Northampton Magistrates’ Court.

 

In reply to your email, in relation to the calculation of costs, I would repeat the comments I made in my previous email to you. The summons sent to you informed you of the hearing on the 88/88/888 at 8888 Magistrate’s Court and that an application for costs would be made. You did not attend that hearing or challenge the costs application and the magistrate’s came to the conclusion that the costs were reasonable in these circumstances.

I am aware as you say of the case of Regina (Nicholson) v Tottenham Magistrates’ Court 2015 which states that it would not be practical for the local authority to carry out and provide a detailed calculation of the actual costs incurred in each and every case unless they are in excess of the norm or around specific issues raised by the taxpayer. I do not believe you attended that hearing or raised any issues at the time regarding those costs applied for by the Local Authority.

The second point you raise is whether the court could order the costs which were not stated on the final notice. I would interpret the regulations to state that where the tax due (as stated on the final notice) was unpaid 7 days after it became due the council may apply for the liability order. If the amount due is not paid before the summons is issued the court must order the reasonable costs as well as the sum due. That amount of costs will be shown on the summons sent to you prior to the hearing and can be challenged at the hearing by you should you wish to do so.

[outlawla]

 

The second point you raise is whether the court could order the costs which were not stated on the final notice. I would interpret the regulations to state that where the tax due (as stated on the final notice) was unpaid 7 days after it became due the council may apply for the liability order. If the amount due is not paid before the summons is issued the court must order the reasonable costs as well as the sum due. That amount of costs will be shown on the summons sent to you prior to the hearing and can be challenged at the hearing by you should you wish to do so.

 

 

- Or -

 

 

The second point you raise is whether the court could order the costs which were not stated on the final notice. I would interpret the regulations to state that where the tax due (as stated on the final notice) was unpaid 7 days after it became due the council may [make complaint to the court, requesting the issue of a summons]. If the amount due is not paid [after the summons is issued, but before the case is heard] the court must order the reasonable costs as well as the sum due. That amount of costs will be shown on the summons sent to you prior to the hearing and can be challenged at the hearing by you should you wish to do so.

[outlawla]

I am aware as you say of the case of Regina (Nicholson) v Tottenham Magistrates’ Court 2015 which states that it would not be practical for the local authority to carry out and provide a detailed calculation of the actual costs incurred in each and every case unless they are in excess of the norm or around specific issues raised by the taxpayer. I do not believe you attended that hearing or raised any issues at the time regarding those costs applied for by the Local Authority.

 

 

Northampton Magistrates' Court is picking and choosing which part of the judgment suits its argument.

 

In Nicolson v Tottenham Magistrates it was held unlawful for the court to award costs without having sufficient relevant information from the billing authority to support them.

 

Assuming Northampton Magistrates' Court did not have this information it would have been unlawful for the court to award those costs:

 

Paragraph 61 of the judgment (as relevant):

 

61. This application for judicial review of the decision taken by the Magistrates must therefore succeed. I was told that since the hearing the order for costs against the Claimant has been withdrawn, but that does not render the proceedings academic; as I have said, it raises issues of wider public importance. Had the order not been withdrawn, I would have quashed it. Since it has been withdrawn, I will declare that the order was unlawful, because:

i) the Magistrates did not have sufficient relevant information before them to reach a proper judicial determination of whether the costs claimed represented costs reasonably incurred by the Council in obtaining the liability order;

 

ii) .....

 

[sdovid]

The way I read the regulation below. The council sends out a final reminder that INCLUDES the costs reasonably to be incurred obtaining the liability order.

All the council has to do is include the costs amount (is to make the application) into the final demand saying this will be the amount if the original xxx amount is not paid within 7 days.

It appears that this is how the Newham final notice is laid out. I am unable to post a link as this is my first post here.

 

The Council Tax (Administration and Enforcement) Regulations 1992

Liability orders: preliminary steps

33.—(1) Subject to paragraph (3), before a billing authority applies for a liability order it shall serve on the person against whom the application is to be made a notice (“final notice”), which is to be in addition to any notice required to be served under Part V, and which is to state every amount in respect of which the authority is to make the application.