North Somerset Council (17 016 531)

Category : Benefits and tax > Council tax

Decision : Upheld

Decision date : 09 Jan 2019

The Ombudsman's final decision:

Summary: Mrs T complained the Council was wrong to send an enforcement agent to recover council tax arrears for a period from 2011. She says this caused distress and time and trouble. The Ombudsman considers there were faults in the Council’s handling of this matter. The Council has agreed to remove agent’s fees of £75 as a remedy.

The complaint

  1. The complainants, whom I shall refer to as Mr and Mrs T complain the Council wrongly pursued recovery of a council tax debt from 2011 for a property Mrs T did not own. In any case the Council had advised Mr and Mrs T they had no outstanding arrears for that dwelling. They say the Council’s response did not provide evidence Mrs T owed council tax.

What I have investigated

  1. I have not investigated matters before September 2017 for the reasons I explain in paragraphs 33-36. However, I have noted the background that led to the events from 2017.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. I have considered the complainant’s and the Council’s comments on my draft decision.

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What I found

  1. Mr and Mrs T owned several properties which they rented out as holiday lets. They sold these before 2017.
  2. In September 2017, the Council passed a council tax account for which it had obtained a liability order in 2011 to its enforcement agent to collect. The account was in Mrs T’s name. The Council had previously sought to recover the outstanding arrears using bailiffs but says it had stopped when a relative advised Mrs T had moved away. It traced her to the original address in 2017 and started recovery again.
  3. The enforcement agent sent Mrs T a letter warning that it would start enforcement action if she did not pay the outstanding £140 council tax within 14 days. Mrs T wrote to the agent on 4 October and stated that she was not responsible for the property. She asked the agent to get evidence from the Council regarding its claim for council tax.
  4. The agent replied on 11 October, suggesting that Mrs T contacted the Council regarding any dispute. However, Mrs T did not receive the agent’s letter until 16 October.
  5. On 16 October, the agent sent a Notice of Enforcement to Mrs T. It added a compliance fees of £75 because Mrs T had not paid or made an arrangement to pay. The agent said that it would visit and may seize belongings if it was not paid within nine days. This would lead to a further fee of £235. The notice referred to arrears from September 2010 to September 2011.
  6. Mrs T replied to the agent’s letter of 11 October. She said the agent should get evidence from the Council or ask the Council to provide evidence that she was liable. She said the agent’s actions were harassment.
  7. Mrs T received the agent’s notice of enforcement on 21 October. Mr and Mrs T called the Council and spoke to the Council’s officers in three calls. They say the Council confirmed it was aware that she had no interest in the property. The Council’s records of the calls do not show this. The Council records that Mrs T said she had no interest in the property but Mr T or tenants had been liable previously. The notes record that officers asked for evidence and that Mrs T should write to the Council. The notes also show Mr T called and stated he was liable and that the properties were demolished but he had no evidence of this.
  8. Mr and Mrs T complained to the agent that the Council’s officers had confirmed Mrs T was not liable when they called the Council. They said the agent or the Council must provide evidence of the council tax owed and they found that the agent’s actions were harassment. They sent a copy of their complaint to the Council.
  9. The Council replied that it had received a tenancy agreement showing Mr and Mrs T had been landlords of the property. The Council said it sent a copy of the tenancy agreement.
  10. Mr and Mrs T replied that the tenancy agreement was not attached. In addition, the enforcement agents had sent them further notices saying they have not acknowledged its notices. They said this was clearly untrue. Mr and Mrs T asked for a copy of the bill sent and court order the Council claimed it had obtained. They said that the Council’s officers had stated they would place a hold on recovery, but the agents were continuing their action.
  11. The Council replied on 13 November 2017. It confirmed it had not placed a hold on recovery as it advised. It apologised for this and the worry this had caused. The Council noted Mrs T said she was not liable. However, it listed letters she had sent it regarding bills for council tax in 2011. The Council also advised her that she had made a payment but the cheque had bounced. The Council said “property has been taken out of rating” in 2012. The Council apologised it had not sent the tenancy agreement copy, which it now attached.
  12. Mr and Mrs T replied that they still had not received a copy of the bill and liability order showing the years the Council was pursuing.
  13. The Council responded providing details of the bill, reminder and summons from March 2011 for the council tax. The Council said it did not have a copy of the bill, but sent a screen print of its system showing notices sent. It confirmed the liability order was not a physical document but it provided a copy of the court listing showing Mrs T’s liability.
  14. Mr and Mrs T complained further that the Council’s responses contained many contradictions. The agent and the council’s officers had stated the council tax year due was September 2010, but the Council now said it was 2011. The documents the Council supplied also showed the period September 2010 to September 2011. They also asked why the Council’s records showed the phrase “*do not use*” in front of the property address. They asked why the property reference was a council tax reference when at all times the property had been subject to non-domestic rates (business). They explained that in 2015 a council officer had confirmed that Mrs T was not liable for the property and that all rates had been fully paid by using credits from other accounts. They also questioned screen prints the council had sent, which they stated did not show the outstanding debt of £140, or how the Council had come to that amount.
  15. The Council acknowledged Mr and Mrs T’s further complaint. However, it referred to are different person’s name and account in its email heading. The Council apologised when Mr and Mrs T pointed this out.
  16. In December 2017, the Council responded to Mr and Mrs T after they had chased a reply. The Council explained that bills it had referred to were for 2010/11. It said that the reason September 2010 was shown on the screenshot was because this was the date liability started. The agent had referred to this start date but would not have known the period the debt was for. The Council had rated the property as residential and therefore council tax was due. But from September 2011 it had rated the property as non domestic. This was the reason the Council added “do not use” before the address to ensure the Council did not apply a council tax rate to it because it was now rated as non domestic (business rates). The Council said it had changed the contact address to Mr and Mrs T’s address from January 2012.
  17. The Council noted Mr and Mrs T believed that they had paid all outstanding rates because of a letter from the Council they received in 2015. However, it explained that this letter related to business rates which were due after the council tax liability period. The Council explained further that an attached print of its system showed the Council received their cheque for £401 after it had removed the property from council tax rating. This put the account into credit of £265. But when this cheque was not honoured the account went into arrears of £140. A replacement cheque the Council stated it received in November 2017 also bounced. The Council sent a further bill in May 2012 for £140. The Council advised that £140 together with the compliance fee of £75 was now payable to the enforcement agent.
  18. Mr and Mrs T complained further that the Council’s reply did not make sense. They noted the Council had put a further hold on recovery but asked the Council to suspend action completely. They said that if the Council could provide evidence of the debt of £140 Mrs T would pay it. They asked how the Council could refer to liability from September 2010 when the details given regarding the bills were for the 2011/12 year from March 2011. The Council had sent bills for the liability in 2010,2011 and 2012. They asked what year Mrs T was liable for. they did not feel the Council had shown how the debt of £140 had come into existence. They said the records did not show they had paid a cheque for £401 or that it had bounced. The Council had referred to them sending a replacement cheque for £401 in November 2017, which also bounced. Mr and Mrs T said the Council records did not show this either and they knew they had not paid a cheque in November 2017. They could not accept the Council had sent a new bill in May 2012.
  19. The Council responded that its complaint procedure was complete and Mrs T could take her complaint to the Ombudsman.

Analysis

  1. I asked the Council why its agent did not hold its recovery action or send a copy of Mrs T’s dispute of 4 October 2017 to the Council. In its response to my enquiries the Council said that its agent was correct to advise Mrs T to contact the Council directly. The Council also says it does not expect its agent to send every letter or email it receives on to it. It says its agents frequently receive complaints due to the nature of the work, but the Council will investigate complaints that are passed on.
  2. I consider that Mrs T had clearly raised a dispute about the liability and asked the Council to send evidence. Therefore, I consider the agent should have passed Mrs T’s letter on to the Council and placed a temporary hold on its action. This is particularly important when a arrears from several years earlier are pursued. The agent did correctly advise Mrs T to contact the Council, but she did not receive this until 16 October. By then the agent had sent an enforcement notice adding £75 fees. This appears to be fault in my view leading to the injustice of additional fees.
  3. I consider the Council’s responses to Mr and Mrs T’s complaints were not as clear as they could have been and in some cases caused more confusion. My current view is the Council was at fault because it:
    • did not suspend recovery as agreed following the calls of 23 October. Mrs T received a further letter from the enforcement agent.
    • Did not send the copies it stated were attached on 27 October so Mrs T had to request this again.
    • Did not send a copy bill or evidence of the liability order with its 13 November reply.
    • Referred in its letter of 20 December to the wrong dates regarding cheques paid in November 2017.
    • Did not appear to recognise that part of the summons and liability order included liability for 2010. This may have led to some references to the 2010 council tax.
    • Did not set out a full sequence of actions and changes to the amount due or provide a statement which could have clarified matters. For example, the credit following the revised liability (due to removal from rating list from September 2011) is not shown on the screen prints or shown in its responses.
  4. The Council has recently sent me further screen prints which show the payments Mr and Mrs T made in 2011. This is helpful and correspondence at the time shows that Mrs T was aware of the debt at the time and arranged to pay.
  5. Mr and Mrs T responded to my draft decision and provided some evidence which appeared to show that the property had been occupied by tenants for the period the Council said Mrs T was liable. The Council has replied that it had received a tenancy agreement which contradicted this and showed the tenants moved to another address in September 2010. Therefore, it considers it was correct to make Mrs T liable from September 2010. I consider that if Mrs T did not believe she was liable she should have appealed as I explain in paragraph 36.
  6. Mr and Mrs T also commented the Council’s letter of 27 March 2012 stated that the property was “taken out of council tax rating for the period September 2009 to September 2010.” Mr and Mrs T therefore appear to have thought council tax was not payable for the property and that they had paid business rates. I asked the Council to comment on this and it replied agreeing the letter was unclear about council tax rating. However, the letter also stated that “the arrears outstanding relate to the period above, therefore the balance is payable”. It states that Mrs T could have asked for clarification. It sent a further bill and letters confirming the cheques had bounced. Therefore, it considered it gave a consistent message that the council tax debt was outstanding. I accept the Council’s view that it had stated the council tax liability and Mrs T had not appealed or challenged the liability order.

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Agreed action

  1. I recommended the Council removes the £75 enforcement agent fees. I considered this a reasonable remedy for the faults I have identified. The Council has agreed to remove the £75 fee and to give Mrs T one month to pay the amount outstanding direct to the Council. If the council tax is not paid within that time it may pass the account to its enforcement agent and a further compliance fee of £75 may be charged.

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Final decision

  1. The Council has agreed to the remedy I recommended so have completed my investigation and closed the complaint.

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Parts of the complaint that I did not investigate

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).
  2. It appears from the evidence Mrs T was aware of the debt in 2011. I do not consider there are good reasons to investigate this matter now.
  3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended).
  4. As I stated in paragraph 34, there is evidence Mrs T was aware of the debt in 2011 and so I would have expected her to appeal the Council’s decision she was liable to the Valuation Tribunal at the time if she disagreed with it.

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Investigator's decision on behalf of the Ombudsman

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