Unexpected summons - action?

[adamna]

Still digging and it would seem that this is an ongoing problem that needs some clarity. In this FOI request https://www.whatdotheyknow.com/request/council_tax_an_unjust_law_is_a_c_9?unfold=1 the repsonse regarding one of those cases was: Stepney Corporation v Osofsky (1937) held that the debtor has first choice over allocation of payments; that the choice may be express or implied, and that the creditor cannot exercise discretion unless there is no indication by the debtor.

Surely implied choice must be to the best advantage of the debtor, not the creditor?

[ss002d6252]

Osofsky was appealed against - the appeal held that there had to be 'specific appropriation' and that merely making payment did not meet this.

[adamna]

This from Wakefield https://www.whatdotheyknow.com/request/allocation_of_funds_towards_coun_6?unfold=1

"With regard to this particular scenario the payment would not be automatically allocated to the earliest non-secured debt. As mentioned in our previous response we must have regard to the debtor's intentions , be those express or implied, before appropriating the payment.

If the debtor subsequently advises what their intentions were regarding a particular payment it would be re- allocated accordingly."

[ss002d6252]

You

Which is what has been said earlier - the Council will match the payment as best they can but if made aware later they'll look again at it.

 

 

The council would be quite within their rights though to argue a payment was allocated as it matched the amount and the request is just being made not to change that in order to frustrate their actions under legislation (this was discussed within Osofsky but it was not part of the ruling).

 

 

If something was regard by the magistrates simply as an attempt to frustrate justice they'd be quite within their powers to agree with the local authority and allow the summons to stand.

An appeal to a higher court would then be needed.

[adamna]

I don't think the OP is designing his argument to frustrate anyone, just trying not to be himself frustrated.

[ss002d6252]

I don't think he is (not intentionally anyway) - but if he was to state to the council about the payment made in respect of the reminder and that it should have been allocated differently then the council are likely to take it that he is (as may well the court).

 

They may allow him discretion though if he asks nicely and doesn't have a past history of non-payment.

[adamna]

They may allow him discretion though if he asks nicely and doesn't have a past history of non-payment.

This may well be how the council would like people to 'behave', but it is evident that he does have a history of struggling with payments, and both parties have the potential to be nice, do they not? It's plain where your expertise comes from.

[adamna]

I'm still interested in this, having suffered a similar situation myself. There's a comment on one of those FOI requests that seems very helpful (in case law) https://www.whatdotheyknow.com/request/council_tax_an_unjust_law_is_a_c_9?unfold=1

Paragraph 113 of the case between Eon Energy Ltd v The Brackley Anitique Cellar Ltd 2013:

 

http://www.39essex.com/docs/general/eon_...

 

Appropriation

 

113. The law is as set out in Chitty on Contracts 31st Edn at Paras 21-060 to 21-061 which states:

 

“where several debts are due from the debtor to the creditor, the debtor may, when making a payment, appropriate the money paid to a particular debt or debts, and if the creditor accepts the payment so appropriated, he must apply it in the manner directed by the debtor. If however the debtor makes no appropriation when making the payment, the creditor may do so.

 

It is essential that an appropriation by the debtor should take the form of a communication, express or implied, to the creditor of the debtor’s intention to appropriate the payment to a specified debt or debts so that the creditor may know that his rights of appropriation as creditor cannot arise. It is not essential that the debtor should expressly specify at the time of the payment which debt or account he intended the payment to be applied to. His intention may be collected from other circumstances showing that he intended at the time of the payment to appropriate it to a specific debt or account. Thus, where at the date of payment some of his debts are statute barred and others are not, it will be inferred (in the absence of evidence to the contrary) that the debtor appropriated the payment to the debts that were not so barred”.

 

That would seem to be clear that the debtor can elect where the payment should be allocated at a later date. How the system is organised is not the debtor's business unless they were expressly so advised in advance. That the creditor may have already allocated it in accordance with their particular habit does not mean that it cannot be altered, or that one must grovel to achieve it.

[adamna]

I included the wrong link in the post above. It's a related request by the same person, correct link is https://www.whatdotheyknow.com/request/council_tax_an_unjust_law_is_a_c_4

[Varuna]

Yes, that seems reasonable and appropriate. In this particular case I'm not sure without full checking whether the council specified how payments would be allocated although I do remember the (I paraphrase) comment "try to keep up with the instalments due for this [current] year". Certainly I hadn't given the matter a great deal of thought, generally seeking to agree repayment over time with the council according to my means and in that seeking also to avoid legal action or additional costs, but if pressed I suppose I'd have drawn on the general business situation as I understood it, namely that I was paying towards a totality of debt to the council and generally clearing earlier and longer-outstanding debts.

[adamna]

There's quite a lot of information here on the way that different councils allocate payments. They can't possibly all be right, if case law is driving the decisions. https://www.whatdotheyknow.com/request/northgate_council_tax_processing#outgoing-493642

[Varuna]

Update:

I was able to cobble together enough cash to pay the claim for the outstanding amount and the £40.00 court fee and so paid that on the Friday before the court sitting on the Monday. My name was therefore presumably removed from the list as I certainly didn't get any further advice on that, for instance about an order having been made.

 

I then wrote a detailed letter to the council requesting a return of the court fee and making certain arguments about my view that the summons should not have been raised anyway.

Nothing happened and so after a wait of six weeks or so

 

 

I wrote again saying that subject to their reply and to the refund of the court fee not being made I was minded to make a formal complaint to the council CE.

 

 

I also asked for specific information on the costs incurred by the council in issuing summons (to see how realistic the charge of £40.00 was given the bulk process).

 

 

Initially there was no reply and then while I was away in November there was a telephone call asking me to ring a particular person but giving no further detail.

 

 

This was then followed up by a letter some ten days later saying that they'd agreed to refund the £40.00 but giving no further information (for instance about the costs incurred).

 

that's at least a reasonably satisfactory outcome and there it rests.

Thanks to everyone for their help.