Cornwall Council (19 007 907)

Category : Benefits and tax > Council tax

Decision : Upheld

Decision date : 21 Feb 2020

The Ombudsman's final decision:

Summary: Miss X complains about the Council’s decision to remove her single person council tax discount in 2012, failing to notify her of appeal rights, and a breach of data protection. She says the Council has not charged her correctly for council tax. She says this has caused her distress, anxiety and inconvenience. The Ombudsman finds the Council at fault for not telling Miss X of her appeal rights sooner. However, this did not cause Miss X injustice because she was notified of fresh appeal rights in 2019. The Ombudsman does not find the Council at fault for the way it has charged Miss X for council tax and enforcement costs. The Ombudsman will not investigate the parts of Miss X’s complaint about the decision to remove the discount because it is outside the Ombudsman’s jurisdiction, and about data protection breaches because the Information Commissioner’s Office is better placed to deal with complaints of this nature.

The complaint

  1. The complainant, who I refer to here as Miss X, complains about the way the Council handled her council tax. She complains that the Council:
      1. failed to notify her of her appeal rights;
      2. has not correctly charged her for her council tax liability, and she is unclear if the added charges are correct;
      3. was wrong to remove her single person discount; and,
      4. breached data protection laws.
  2. Miss X says this caused distress, anxiety and inconvenience over seven years, and impacted on her finances.

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What I have investigated

  1. Miss X complains about the Council’s actions since 2012, when it removed her single person council tax discount. I have investigated the Council’s actions to do with Miss X’s council tax from August 2018, a year before Miss X complained to the Ombudsman.
  2. The final section of this statement contains my reasons for not investigating the Council’s actions between 2012 and 2018. It explains my reasons for not investigating the part of Miss X’s complaint about the Council’s removal of her single person discount (part c of the complaint), and for not investigating the part of Miss X’s complaint about data breaches (part d of the complaint).

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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. 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)
  3. 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)
  4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  5. 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)
  6. 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)
  7. The Valuation Tribunal deals with appeals against decisions on council tax liability and council tax support or reduction.
  8. The Information Commissioner's Office (ICO) considers complaints about freedom of information and data protection. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information and data protection, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

  1. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
  2. I have considered the relevant legislation, set out below.

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What I found

What should have happened

Council tax

  1. The primary legislation for council tax is the Local Government Finance Act 1992. The main secondary legislation concerned with collection and recovery is The Council Tax (Administration and Enforcement) Regulations 1992 (“the Regulations”). Councils are responsible for collecting council tax.
  2. If a council tax payment is missed, a council must issue a reminder notice (at least seven days after the missed payment). If the arrears are not paid, the balance for the full year then becomes due. A council can then complain to the Magistrates Court and issue a summons. A liability order hearing is then heard in the Magistrates Court. The court can then grant a liability order.
  3. Councils will charge costs for the issue of a summons and a liability order. The court must grant an order if it is satisfied that the sum has become payable and has not been paid. Once a council has obtained a liability order it can take steps to recover the debt without any obligation to inform the debtor. This usually involves a council passing the debt to enforcement agents, known as bailiffs.
  4. Under section 52(4) of the Regulations, any payments made are first put towards any costs, including any bailiffs’ costs. The allocation of payments can give rise to problems, especially when there are arrears or summonsed debt.
  5. Councils’ computer systems will allocate payments according to some simple rules. Usually payments which are exactly equal to instalments or exact multiples of instalments will be allocated to the current year’s liability. After a summons is issued the computer system may then allocate instalment payments to any arrears, because the right to pay by instalments is lost once a final notice has been issued.
  6. It is good practice for councils to write to debtors after the liability order has been made to warn them if the debt is being passed to bailiffs, with a note of the costs that will become due. The Regulations set out fees as follows: £75 for the compliance stage; £235 for the enforcement stage; and £110 for the sale or disposal stage.

Single person discount and appeals

  1. Council tax reduction is a scheme run by councils to reduce a council tax bill for those who are eligible. Single Person Discount is a reduction in council tax given to those who live alone.
  2. If someone applies for council tax reduction, a council must advise the claimant of its decision in writing. Appeals against decisions about council tax reductions must be heard by the Valuation Tribunal. Before a claimant can appeal to the Valuation Tribunal, they must ask the council to look again at its decision.
  3. If a council refuses to change its decision, or has not replied to the claimant within two months, the claimant can appeal directly to the tribunal. The time limit to appeal to the tribunal is two months after the council has given its written decision.
  4. The Ombudsman cannot normally investigate complaints about councils not awarding council tax reductions, discounts or exemptions because the complaints should be heard at the Valuation Tribunal. However, the Ombudsman can look at councils’ actions and what happened surrounding the complaint.

What happened

  1. In 2012, the Council received information that someone else may be living at Miss X’s property. The Council asked her to provide evidence to prove that the other person lived elsewhere. When it received no response from Miss X, it removed the single person discount that had been applied to her council tax liability.
  2. In 2013, Miss X complained to the Council about why it had removed the single person discount. The Council responded to this complaint and signposted Miss X to stage two of the complaints process. She did not ask for her complaint to be escalated to the next stage.
  3. In 2014, Miss X contacted the Council, disputing that the other person lived there.
  4. In 2015, Miss X provided the Council with the other person’s home address. The council responsible for that area confirmed that the person had lived there since April 2013. The Council then applied the single person discount to Miss X’s account from April 2013 onwards.
  5. In August 2018, Miss X complained to the Council about its removal of her single person discount. The Council responded and signposted Miss X to the next stage of the complaint process. She did not ask for her complaint to be escalated to the next stage.
  6. On 4 February 2019, Miss X complained to the Council about its removal of the single person discount and the confusing set of liability orders that had been granted in previous years. She also complained about an apparent data breach.
  7. On 8 March 2019, the Council responded. It said its position had not changed since its complaint response in August 2018. As Miss X had not provided any new information, the Council said it was not able to change its decision about the single person discount.
  8. The Council said it had chosen to deal with Miss X’s outstanding council tax debts by an attachment to her earnings rather than passing her debts to bailiffs, as had been done previously. The Council clarified what was still outstanding on two recent liability orders.
  9. On 7 April 2019, Miss X asked that the Council deal with her complaint at stage two of the complaints process.
  10. On 9 May 2019, the Council sent Miss X its stage two response. It said it had considered her current circumstances and had decided to award her a single person discount for 1 April 2012 to 5 September 2012. It said this brought the single person discount in line with the date it was first informed the other person may be a resident.
  11. However, the Council said there was still insufficient information to conclude that she was eligible for the discount for 6 September 2012 to 31 March 2013 (the date the other council confirmed the other person lived in that council’s area). The Council told Miss X of her right to appeal the decision.
  12. The Council accepted it could have offered Miss X appeal rights sooner. It said Miss X could appeal within two months if she was unhappy with the decision not to award the discount for September 2012 to March 2013.
  13. On 14 June 2019, the Council wrote to Miss X. It said it had decided to award her the single person discount for the whole contested period (April 2012 to March 2013). It said the credit this applied to her account meant the arrears for 2017/18 had been cleared, and the amount owing on her 2018/19 debt had been reduced.
  14. On 9 August 2019, Miss X complained to the Ombudsman.

Analysis

Failure to notify about appeal rights

  1. Miss X complains that the Council failed to notify her of her appeal rights (part a of the complaint). The Council removed Miss X’s single person discount in 2012. As I explain in paragraphs 54 to 57, I will not investigate the Council’s actions before August 2018.
  2. In the Council’s stage two response dated May 2019, it accepted it could have made Miss X aware of her appeal rights sooner.
  3. I agree, and for this reason I find fault with the Council. However, I do not consider that this fault caused Miss X significant injustice. This is because her appeal rights were reinstated in May 2019 and June 2019 when the Council informed her of its fresh decisions, and the Council told her of her fresh appeal rights.
  4. In addition to this, in June 2019 the Council told Miss X it had applied the single person discount for the whole contested period. This means Miss X has not been charged full council tax. This essentially means Miss X does not have to appeal now because she got the discount from 2012 onwards.
  5. The Council says it has learnt from this case and is now careful to separate complaints from appealable decisions so that the correct advice is given at the earliest opportunity. This is positive.

Council tax charges

  1. Miss X complains that the Council has not correctly charged her for her council tax liability, and she is unclear if the added charges are correct (part b of the complaint).
  2. Miss X has not always paid her council tax on time. The Council has taken enforcement action to recover these debts, as it is entitled to do. Summons costs and liability order costs have therefore been added to Miss X’s outstanding debt. This is in line with the Regulations.
  3. The Council says that instead of passing Miss X’s recent debts to bailiffs, as it has done before, it has now chosen to recover the debts by an attachment order to Miss X’s earnings. This has not yet been set up due to this investigation.
  4. I have seen no evidence of improperly added costs. The Council is entitled to take enforcement action when debts are not paid. For this reason, I do not find the Council at fault.
  5. Miss X also complains about where payments have been allocated.
  6. As I have said in paragraph 19, councils’ computer systems allocate payments. If payments are exactly equal to instalments or exact multiples of instalments, they will be allocated to the current year’s liability. After a summons is issued the computer system may then allocate irregular payments to any arrears.
  7. I have seen no evidence that the Council has missed or miscalculated any of Miss X’s payments or liability. If some of Miss X’s payments were credited towards her debts rather than her current liability, this is not fault. Ultimately, the Council has put Miss X’s payments towards her outstanding debts. It is entitled to do this.
  8. For these reasons, I do not find the Council at fault.

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Final decision

  1. I have completed my investigation. I find the Council at fault for not telling Miss X about her appeal rights sooner. However, I do not find that this fault caused Miss X injustice.
  2. I do not uphold the part of Miss X’s complaint about how the Council has charged her for council tax. This is because there is no fault.

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Parts of the complaint that I did not investigate

  1. The Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so (see paragraph nine).
  2. In this case, the Council removed Miss X’s single person discount in 2012. She complained to the Council in 2013 but did not complete the complaints procedure, which would have signposted her to the Ombudsman.
  3. Miss X also disputed the removal of the discount in 2014, and complained to the Council in 2018. Again, Miss X did not complete the complaints procedure.
  4. In this case, Miss X did not approach the Ombudsman for six years after she first became aware of the issue. Overall, I consider that reasonable opportunities existed for Miss X to have pursued this matter in a more timely fashion, and within the time limits laid down in law. As such, I see no good reason to exercise the Ombudsman’s discretion and investigate this complaint back to 2012.
  5. I will not investigate part c of the complaint about the Council’s decision to remove Miss X’s single person discount. This is because this decision was made in 2012 and, as I have said above, I will not look at the Council’s decisions before August 2018. This is because it is late and therefore outside our jurisdiction.
  6. I will not investigate part d of the complaint about breaching data protection laws. As I have said in paragraph 12, the Information Commissioner’s Office (ICO) is better placed to deal with complaints of this nature. It is my view that it is reasonable for Miss X to complain to the ICO, and therefore I see no good reason to exercise the Ombudsman’s discretion to investigate this part of the complaint.

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Investigator's decision on behalf of the Ombudsman

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