Kingston upon Hull City Council (18 002 834)

Category : Benefits and tax > Council tax

Decision : Not upheld

Decision date : 10 Dec 2018

The Ombudsman's final decision:

Summary: There is no fault in the Council’s actions in relation to its recovery of council debts accrued on Mr F’s Property C in the April to June 2017 period. There are no grounds to consider his complaint in relation to an earlier period as Mr F could have complained about these earlier and so there are no grounds to exercise discretion to consider these now.

The complaint

  1. The complainant, whom I shall refer to as Mr F complains that the Council’s handling of his council tax arrears has been unnecessarily harsh and insensitive given his given his mental health issues and difficult financial circumstances. In particular Mr F says the Council:
      1. unreasonably referred his case to enforcement agents and pursued attachments of earnings;
      2. set the attachments of earnings at too high a level for him to afford;
      3. failed to respond reasonably to his enquiries to the Council to try to discuss and resolve the situation; and
      4. failed to consider writing off the debt.
  2. Mr F says he did not become aware of the debt until he was contacted by enforcement agents in late 2017.

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The Ombudsman’s role and powers

  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. 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) The Valuation Tribunal Service deals with appeals where someone considers they are not liable for council tax so we would not normally investigate a complaint about such a matter.
  3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  4. 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 discussed the complaint with Mr F and considered the written information he provided with his complaint. I made written enquires of the Council and considered all the information before reaching a draft decision on the complaint.
  2. I gave the Council and Mr F the opportunity to comment on my draft decision. Mr F provided his comments by telephone. I have considered these before reaching a final decision on the complaint.

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What I found

  1. If someone does not pay their council tax having been billed for it, the council can take action to recover the money.
  2. There is a process between the issue of a bill and the issue of liability order. This involves the issue of at least one reminder before issuing a summons for a liability order hearing at the magistrates’ court. Recovery of council tax is by action in the magistrates’ court.
  3. The council can only use one recovery method per liability order at any one time. If one method is unsuccessful they can try others. Recovery methods include referral to enforcement agents and obtaining an attachment of earnings order. A taxpayer can have several liability orders each for a different year with different recovery action being taken for each order.
  4. If the taxpayer is in employment an Attachment of Earnings order can be served. Up to two council tax attachment of earnings orders may be served on one individual at any one time.
  5. Deductions from a salary under an attachment of earnings order are a fixed percentage of the wages and are set by statute (the Council Tax (Administration and Enforcement) (Amendment) Regulations 1998 SI 295 Schedule 5). The employer collects the payment. Once an order is paid the council must write and tell the employer.
  6. Councils may have anti-poverty strategies and other policies about how vulnerable debtors should be treated. Kingston upon Hull Council does have a policy on dealing with debt. This provides for advising service users of where they may go for advice on managing their debts, agreeing payment arrangements if possible and attempting to avoid the most serious consequences of debt accumulation such as bankruptcy or imprisonment. It refers to discretionary relief arrangements where there is significant financial hardship.

What happened

  1. Mr F’s council tax liability relates to three rental properties during periods when he did not have tenants living in them. I shall refer to these as Property A, Property B and Property C.
  2. Mr F complained to this office about the Council’s handling of his liability for council tax on these properties in May 2018.

Property A

  1. The Council says Mr F’s liability to pay council tax for Property A is from June 2014 to February 2015.
  2. The Council’s records show that it issued the first bill relating to his liability for Property A in May 2014. It sent a letter to the address it had recorded as Mr F’s home address and also sent a letter to Property A giving details of the empty property rules. Following the one month period when he was exempt from paying council tax on the empty property, the Council issued a bill for the year’s council tax to April 2015 and sent this to Mr F’s home address. Having sent a reminder that did not prompt Mr F to pay, the Council issued a summons (sent to the letting agent used by Mr F) for the full amount due plus court costs in September 2014. Mr F contacted the Council and agreed to pay the amount due by direct debit which he set up but cancelled shortly after.
  3. In November 2014 Mr F spoke to the Council about the debt and later complained. As a result the summons was withdrawn (as it had been addressed to the letting agent) and a new letter arranging payment was sent to Mr F. Mr X complained and the process of the Council’s consideration of the complaint resulted in it putting action related to the pursuance of the council tax debt on hold temporarily.
  4. The Council obtained a further summons in April 2015, a liability order in June 2015 when payments were still not agreed with the Council. No further action was taken while Mr F pursued a further complaint. I note that in its response to Mr F’s stage 2 complaint in August 2015 the Council told Mr F of his right to pursue a complaint to this office. I also note that in November 2014 in an email to the Council Mr F stated he would refer the matter to this office if his concerns were not resolved to his satisfaction.
  5. In December 2015 the Council referred the debt of £660 to enforcement agents. The Council’s records show that on a visit from the bailiffs Mr F contacted the Council to ask about the liability period the Council was pursuing him for. This was followed by a further complaint by Mr F which the Council responded to. In September 2016 the enforcement agents returned the liability order to the Council stating they had been unable to obtain “effects” belonging to Mr F with which to meet the debt amount. In October 2016 the Council wrote to Mr F again advising him to make immediate payment of the outstanding amount or risk incurring further legal costs and possible imprisonment. This letter was sent to the address Mr F had provided to the Council as his current home earlier that year. Mr F responded but when the Council tried to call back were unable to contact him and so wrote. The Council sent a further warning letter in January and then proceeded to refer the matter to different enforcement agents in March 2017. The second enforcement agents returned the debt to the Council in December 2017.

Property B

  1. The Council says Mr F’s council tax liability for this property dates from September to November 2016 when the property was empty.
  2. The Council says its bill for council tax liability when this property was empty (not tenanted) was issued to Mr F’s then address in September 2016. This was revised in December 2016 when tenants moved in and became liable for some of the period. A summons was issued in February 2017 and a liability order in March 2017. The Council referred the debt of around £200 to enforcement agents in July 2017. The enforcement agents returned the debt to the Council uncollected in December 2017.

Property C

  1. The Council says Mr F is liable to pay council tax on this property from June 2016 to June 2017. This period straddles two council tax years which run from April to March so the debts for each period were billed for separately.
  2. The Council sent Mr F a bill in July 2016 advising his liability for the period up to end March 2017 was £733.22. When payment was not received the Council sent a reminder to pay the required instalment in September. When this was not paid the Council issued a summons in September. It followed this up by obtaining a liability order in October when payment was still not received. When Mr F still failed to pay the Council referred the debt to enforcement agents in January 2017.
  3. The enforcement agents returned the debt in December 2017. In November 2017 the enforcement agents contacted the Council to discuss Mr F’s vulnerability with officers. The Council says it had not had any information from Mr F about his mental health difficulties since July 2016, the enforcement agents made two arrangements with him to pay off the debt which he then failed to do and the Council says it was satisfied Mr F was able to manage his affairs at that time as he had been in regular contact with the Council to discuss matters related to his council tax.
  4. In December 2017 the enforcement agents advised that Mr F was working but returned the debt to the Council a few days later stating they were unable to collect anything from Mr F to cover the debt.
  5. In January 2018 the Council obtained an Attachment to Earnings order to cover the debt on the June 2016 to April 2017 debt.
  6. In March 2017 the Council issued a bill for Property C for the April 2017 to March 2018 liability period. When the first monthly payment was not received it sent a reminder in May 2017. The Council does not keep copies of the original bill or the reminder notice as it issues a very large number of these to homeowners across its area. It confirmed the property was still empty and then issued a summons for the whole outstanding amount in June 2017. At the end of June the Council received confirmation that Property C had been repossessed.
  7. The Council obtained a liability order for the outstanding debt in October 2017. A copy of this order was sent to Mr F at the address he said he was living at the time. When payment was not received the court awarded an Attachment to Earnings Order in January 2018 to cover the outstanding debt £320 for the period April to June 2017.
  8. Mr F complained again following the Attachment of Earnings and the Council temporarily suspended the Attachment of Earnings while it considered this. Mr F completed the complaints process and then referred the matter to this office.

Analysis

  1. I have not considered Mr F’s complaint in relation to Property A. This is because it is clear that Mr F knew about the matters relating to this property from 2014 and so could have complained to us about this before now. I am satisfied the Council was writing to Mr F at the addresses it believed were correct at the time and it is clear from the Council’s records that he was aware of matters at the time as the records show he was communicating with Council officers about council tax debts related to Property A from 2014. I am satisfied Mr F was aware of his right to complaint to us in 2014 and 2015 as he and the Council both referred to complaining about this to the Ombudsman in 2014 and 2015. I recognise that Mr F says he has been struggling with mental health difficulties since 2014 but he was clearly communicating fairly regularly with the Council on this matter since 2014 so there is no reason to consider he could not have complained to this office during that period.
  2. In relation to Property B again Mr F was aware of this debt from at least December 2016 which is significantly more than12 months before he complained to this office. The Council started recovery action in February 2017 so Mr F could have complained to us about this matter before he did. Again I do not consider there are grounds which pursued I should consider this complaint now.
  3. Again in relation to property C I consider Mr F was aware of the earlier part of this debt for this property for the 2016/2017 period was made clear to Mr F from July 2016 which is around two years before he complained to this office. I am not therefore considering his complaint in relation to this debt.
  4. I will consider the debt for the period for which the Council billed Mr F in March 2017 as the Council did not start the process of action to recover this debt until later in 2017 so this complaint is made to us within 12 months of Mr F becoming aware of the matter.

Property C (Council Tax liability from April to June 2017)

  1. I note from his correspondence with the Council that Mr F seems to dispute liability for some of the periods for this he has been deemed liable. As this is a matter for the Valuations Tribunal to consider it is not for this office to consider and so I will not address this point.
  2. Based on the information available and that I have seen it appears that the Council wrote to Mr F at the address it held form him at that time and which it believed to be correct.
  3. This debt on Property C was not referred to enforcement agents. I assume this was because the Council had been unsuccessful in pursuing other council tax debts levied against Mr F with enforcement agents and had also become aware that Mr F was in employment so could consider pursuing an Attachment of Earnings instead. The Council was entitled to seek an Attachment of Earnings having been granted the Liability Order by the Court and, as I have outlined above, it has no discretion on the amount of the deduction as this is set by statute. As it entitled to pursue such a course of action there are no grounds for me to consider its decision to pursue an Attachment of Earnings amounts to fault. The Council has said it did not wish to pursue bankruptcy or refer the matter to enforcement agents again as it does not wish to cause avoidable further distress. I consider its decision to pursue an Attachment of Earnings accords with its policy on debt collection which seeks to maximise debt recovery whilst avoiding serious outcomes such as bankruptcy. In this case, it has also sought to avoid causing further by the use of enforcement agents which has also proved ineffective in collecting earlier debts.
  4. It is difficult to separate out Mr F’s particular contacts about this part of his Council Tax liability so in relation to part c) of Mr F’s complaint I rely on the background provided by the Council which shows it tried to respond to his requests to discuss his council tax arrears and responded to the complaint he made. I do not therefore consider I have seen evidence to suggest that it did not respond appropriately to his enquiries to the Council to try to discuss and resolve the situation. I recognise that Mr F found the Council’s system of calling back frustrating as he could not always take calls but I also accept what the Council said in its response to his complaint in January 2018 which was that its staff are busy managing large numbers of calls and so call back when they are able and this may be some days later.
  5. In relation to Mr F’s vulnerability with regard to his mental health diagnoses, the Council says the first evidence Mr F provided in this regard was in January 2018 which was a form completed by his doctor (and which was in fact first provided by Mr F to the enforcement agents in late 2017). In its response to me the Council refers to its letter to Mr F dated May 2018 where the Council confirmed it cannot have a blanket policy to write off all debts where someone has mental health issues or physical health issues. It says its officers must be able to demonstrate there is a valid reason for a write off and for not pursuing the debts. The Council goes on to say that whilst Mr F said he had no disposable income when he provided evidence of his income and outgoings these showed “he has a substantial monthly income” of around £3500. It says it expects he should be able to make payments from this to cover his debts even though he said his outgoings were also high and officers considered it reasonable to expect him to manage other payments to make a reasonable payment offer to pay off his council tax debts. I accept that the first independent evidence confirming Mr F’s mental health needs was not provided to the Council until late 2017/January 2018 by which time Mr F was clearly working and earning an income that the Council considered it reasonable to seek an Attachment of Earnings. I see no reason to consider the Council was at fault in considering and then pursuing this course of action.

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Final decision

  1. There is no fault in the Council’s actions in relation to its recovery of council debts accrued on Mr F’s Property C in the April to June 2017 period. For the reasons given I have not considered his complaint in relation to the earlier period.

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Investigator's decision on behalf of the Ombudsman

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