Summary: Mr B complains the Council did not properly consider his request to write off council tax debt when he cannot afford to pay. He says the Council did not properly consider his circumstances and the impact on his mental health or make reasonable adjustments. Mr B also says the Council wrongly declined his application for a test and trace payment. We do not find fault in how the Council considered Mr B’s test and trace application. However, we find fault in how the Council considered reasonable adjustments for Mr B.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council did not properly consider whether to write off his council tax debt. He says he is self-employed and has faced a loss of income, alongside other difficult personal circumstances. Mr B says he cannot afford to pay the debt. He says the Council did not take into account his diagnosis of Asperger’s Syndrome, his person circumstances or the impact on his mental health and did not make reasonable adjustments in the way it communicated with him.

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What I have and have not investigated

2. I have investigated how the Council communicated with Mr B, whether it considered reasonable adjustments and how it considered his application for a test and trace payment.
3. I have not investigated whether the Council should have awarded Mr B council tax discretionary relief. I have also not investigated whether the Council should have backdated Mr B’s council tax reduction to an earlier point in time. This is because both those decisions are appealable to the Valuation Tribunal. The Council notified Mr B of his appeal rights and how to appeal on both occasions, so it was reasonable for him to take this course of action if he disagreed with the decision.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The Valuation Tribunal deals with appeals against decisions on council tax liability and council tax support or reduction.
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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. If we are satisfied with an organisation’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

8. I considered the information Mr B provided by email and over the telephone, then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments, before making a final decision.

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What I found

Law and Guidance

9. Council tax bills for the year are due on 1 April. A council will usually collect payment through monthly instalments. If any instalment is missed, the council will send the liable person a reminder. If a payment is still not made or a further payment missed, then the entire outstanding balance will be due (that is the full amount for the rest of the year).
10. To use the various powers available to it to recover unpaid council tax, a council must apply to the magistrates court for a liability order against those it believes are liable. Once a council has obtained a liability order it can take recovery action.
11. Section 13A(1)(c) of the Local Government Finance Act 1992 (as amended by The Local Government Finance Act 2012) gives a council discretion to reduce the council tax payable on a dwelling to nil if it wishes to do so. The Council must make a scheme (Section 13A(2)) for -
• (a) persons whom the authority considers to be in financial need, or
• (b) persons in classes consisting of persons whom the authority considers to be, in general, in financial need.”
12. This reduction can be “in relation to particular cases or by determining a class of case in which liability is to be reduced to an extent provided by the determination” (Section 13A(7))
13. A Taxpayer can appeal for a discretionary discount and the Council should have some mechanism to consider such requests, with criteria against which they are judged. The Council's decision to grant or refuse a discretionary discount is appealable to the Valuation Tribunal so is out of jurisdiction under section 26(6)(a) of the 1974 Act.
14. The Debt Respite Scheme (“Breathing Space”) will give someone in problem debt the right to legal protections from their creditors. There are two types of breathing space: a standard breathing space and a mental health crisis breathing space.
• A standard breathing space is available to anyone with problem debt. It gives them legal protections from creditor action for up to 60 days. The protections include pausing most enforcement action and contact from creditors and freezing most interest and charges on their debts.
• A mental health crisis breathing space is only available to someone who is receiving mental health crisis treatment and it has some stronger protections. It lasts as long as the person's mental health crisis treatment, plus 30 days (no matter how long the crisis treatment lasts).
15. The Test and Trace Support Payment scheme was introduced to help people who were required to stay at home because of COVID-19. The measure supported low-income workers on benefits who had been contacted by NHS Test and Trace and told to self-isolate for periods between 28 September 2020 and 24 February 2022. Eligible customers received a £500 support payment from their local authority, who used some HMRC data to check eligibility.
16. The Equality Act 2010 sets out a duty to make reasonable adjustments to their services to ensure they are accessible to disabled people. The duty is ‘anticipatory’. This means public bodies should anticipate the needs of people with disabilities using their services.
17. The Ombudsman has produced a focus report relating to reasonable adjustments, called ‘Equal Access: Getting it right for people with disabilities’ (“the Focus Report”). The report says we consider it good practice for councils to routinely ask people who access their service whether they need to make changes to the way they communicate. This is particularly important for people with hidden disabilities where people may feel unable to volunteer their need for an adjustment until asked. Also, when a service is aware of a person’s disability, it should anticipate their needs and make necessary reasonable adjustments in consultation with them.

Local Policy

18. The Council has a Council Tax Reduction (“CTR”) scheme. The Council may award applicants for CTR a 20-65% reduction on their council tax payments, dependent on their level of income.
19. The Council will also consider requests for discretionary council tax relief. It considers requests on the merits of each case. The Council says discretionary relief is from a limited pool of funds and will only be used as a short term measure.
20. In April 2022 the Council introduced an exception hardship fund. To apply for the fund an application must either:
• be in receipt of CTR, or
• have made an application for exceptional hardship payment within one month of not qualifying for CTR
21. Again, applications will be considered on their merits.

Background

22. Mr B is diagnosed with Asperger’s Syndrome. He is self-employed and his business suffered during the pandemic, which added to significant financial difficulty. He also faced difficult personal circumstances, including taking on a caring role for an unwell relative.
23. Between June 2019 and the present, Mr B has incurred significant council tax arrears. He says he cannot not make payment due to his financial difficulties.
24. In July 2021 Mr B cancelled his direct debit for council tax. The Council issued a new bill and said Mr B would need to pay by alternative means. However, the Council did not receive further payments. In March 2020 the Council issued a new council tax bill for the next year. It sent a reminder notice to Mr B in August 2020 and a final notice in September 2020 due to non-payment.
25. Mr B applied for a £500 payment from the Council for lost income in line with the Test and Trace support payment scheme in November 2020. The Council did not approve the application as it did not have evidence Mr B had lost income. Mr B’s universal credit award showed that he had a minus income from self-employed earnings, meaning the Council treated his earnings as nil.
26. In February 2021 Mr B telephoned the Council and said he was struggling financially. An advisor told Mr B he would need to apply for CTR. Mr B said he could not pay anything but the Citizens Advice Bureau was claiming CTR on his behalf. The line was then cut off.
27. In March 2021 the Council wrote to Mr B encouraging him to apply for CTR. It also said Mr B could be considered for assistance from the Council’s discretionary relief fund.
28. The Council issued a new Council tax bill in March 2021. It sent a reminder notice in May 2021 for non-payment. In June 2021 the Council issued a final notice. In July 2021 the Council obtained a liability order from the magistrates court for the arrears dating back to June 2019.
29. Mr B made a further application for a Test and Trace payment in July 2021 and was successful.
30. Mr B entered a Breathing Space moratorium in early August 2021. This expired in September 2021. Following this the Council sought to recover council tax arrears directly from Mr B’s universal credit.
31. In late 2021 the Council awarded CTR for Mr B. It backdated the CTR to May 2021. Mr B appealed the start date of the reduction as he believed it should be backdated to mid-2019. The Council declined to backdate the award further and advised Mr B of his appeal rights to the Valuation Tribunal.
32. In September 2021 the Council placed recovery action for council tax on hold for two months. Mr B spoke to the Council in November 2021 but did not make an offer of payment.
33. In January 2022 Mr B made a complaint about the Council’s actions. The Council’s complaint response said that if Mr B was suffering financial hardship, he may wish to make a claim for council tax discretionary relief. It sent Mr B an application form for him to complete.
34. In April 2022 Mr B submitted a discretionary relief application. In the same month the Council introduced the exceptional hardship payment.
35. In late June 2022 the Council asked Mr B for more information to assess his application. At the same time the Council sent Mr B a final notice for council tax non-payment. Mr B provided further information in July 2022. He also escalated his complaint to the second stage of the Council’s complaint procedure.
36. The Council declined Mr B’s application for discretionary relief. It said the relief is funded from a limited budget and can only be awarded as a short-term measure. As Mr B’s council tax debts were high, a limited discretionary relief award would not help him financially going forward. However, the Council informed Mr B he could apply for the exceptional hardship payment. It also informed Mr B he had a right to request a review of the decision.
37. Mr B asked to appeal the decision in late July 2022. In October 2022 Mr B chased the Council. The Council said it had his review request and would respond shortly. It responded in October 2022 and upheld the original decision not to award discretionary relief. It informed Mr B he could appeal the decision to the Valuation Tribunal and could apply for exceptional hardship payment.

Findings

38. As outlined at Paragraph 3, I have not investigated whether the Council should have written off any or all of Mr B’s debt. I included information about Mr B’s applications for CTR and discretionary relief in the background section, to give a full chronology of the case and overview of communication between Mr B and the Council. I have separated my findings into the following areas of complaint:
• Communication and reasonable adjustments
• Test and trace payment

Communication and reasonable adjustments

39. I have looked through the telephone records and correspondence between the Council and Mr B. I cannot see anything inappropriate in the Council’s communication. At each stage the Council informed Mr B of his options and referred him to debt advice organisations. It also discussed the case with Mr B’s relative when requested.
40. However, I find fault in the Council not actively considering reasonable adjustments for Mr B. As outlined at Paragraphs 16 and 17, there is an anticipatory duty to consider reasonable adjustments. The Council was made aware on several occasions that Mr B had Asperger’s Syndrome, was struggling with his mental health and found communication difficult. Mr B did not request specific reasonable adjustments. But I also cannot see evidence the Council asked Mr B if he needed any changes in the way it communicated with him based on his disability.
41. It would not have changed the Council’s decision on whether to pursue the debt. However, Mr B has asked us for certain adjustments in the way we communicate with him. It is possible that if prompted, Mr B, would have asked for similar adjustments from the Council and this could have helped the communication.
42. For instance, on several occasions the Council has written to Mr B to say he can apply for an exceptional hardship payment, but he has not applied. It is not clear if this is because he does not want to apply or because he is not clear on the procedure to do so. It might be that having the procedure explained on the telephone, would be beneficial to Mr B. Although that would be for the Council to determine in a discussion with Mr B.
43. I therefore recommend the Council contact Mr B to discuss any reasonable adjustments he might need in communication with the Council going forward. The Council should make a record of any adjustments requested and agreed, or any reasons it does not consider a request is reasonable. I also recommend the Council inform Mr B again that he can appeal for an exceptional hardship payment and provide advice and support if necessary to assist him in making an application, considering any reasonable adjustments it has agreed.
44. I recommend the Council review its procedures and consider what measures it can introduce to ensure staff are aware of the need to proactively anticipate and prompt for reasonable adjustments for people with disabilities, particularly where it is a hidden disability.

Test and trace payment

45. I do not find fault in how the Council considered Mr B’s first test and trace payment application. The Council considered the information Mr B provided. The Council has provided me with evidence to show why it did not consider that Mr B had suffered a loss of earnings during the relevant period. I cannot question the merits of the Council’s decision and there is no fault in how the Council made the decision.
46. I understand the Council approved Mr B’s second application. However, this was for a different time period and based on a different level of earnings.

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Agreed action

47. The Council will, within a month of this decision:
• Apologise to Mr B for not actively considering reasonable adjustments.
• Contact Mr B to discuss any reasonable adjustments he might need in communication with the Council going forward.
• Make a clear record of any reasonable adjustments Mr B requests and how the Council will make the adjustments. If the Council does not consider a request for an adjustment is reasonable it should record clear reasons and communicate this to Mr B.
• Inform Mr B again that he can apply for an exceptional hardship payment, which is separate to his previous discretionary relief application. If necessary provide advice and/or support to Mr B to ensure he knows the procedure for making the application.
48. The Council will also, within three months of this decision:
• Review its procedures and consider what measures it can introduce to ensure staff are aware of the need to anticipate and actively prompt for reasonable adjustments when communicating with people who have disabilities, particularly where it is a hidden disability.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. The Council is not at fault in how it considered Mr B’s test and trace application. However, we find fault in how it considered reasonable adjustments for Mr B.

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Investigator's decision on behalf of the Ombudsman