London Borough of Merton (21 017 646)

Category : Benefits and tax > Council tax

Decision : Upheld

Decision date : 06 Jul 2022

The Ombudsman's final decision:

Summary: Mr Y complains about the Council’s enforcement of historic council tax debts, which he was not liable for. He also complains about the Council’s decisions about council tax liability. We uphold the complaint, because the Council did enforce against the wrong person and did not act on communications from Mr Y about this. We have not investigated the council tax liability. That is because Mr Y can appeal to the Valuation Tribunal about these issues.

The complaint

  1. The complainant, whom I shall refer to as Mr Y, complains:
      1. about the Council’s enforcement of a council tax debt. The Council sent its enforcement agents to enforce a debt for a property he had never owned. Mr Y says the £75 the Council has offered as a remedy for this mistake is not sufficient;
      2. the ownership of the property changed to a company. But the Council has charged the company for the council tax owed for a time before the company owned the property;
      3. on behalf of the previous owner (whom I shall refer to as Mr Z). He complains the Council has asked Mr Z to pay three years of council tax and an empty home penalty. Mr Y says this is unfair, as the delay in carrying out works was because Mr Z had to appeal a decision by the Council’s planning department.
  2. In relation to complaint a), Mr Y says the injustice to him is that it spoiled a family holiday. He asked the Council to refund the £5000 costs of the holiday.

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What I have investigated

  1. I have investigated complaint a). At the end of this statement, I explain why I have not considered the other parts of Mr Y’s 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. 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)
  3. The Valuation Tribunal deals with appeals against decisions on council tax liability.
  4. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
  5. 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

  1. The information I have seen includes the documents Mr Y supplied with his complaint and the Council’s responses under its complaints procedure. I sent my draft decision to Mr Y and the Council and invited their comments.

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What I found

Legal and administrative background

  1. Council tax is a tax made on domestic properties. Councils issue one bill to each household. Residents of dwellings are usually liable for council tax from the date they moved into the property. If a private property is unoccupied, liability for council tax rests with the owner. Councils have powers to charge extra council tax on empty properties.
  2. Where a sum of council tax is unpaid, a council may seek an order from the magistrates’ court known as a liability order. This confirms the amount owed and who is liable to pay it. When a liability order has been made, a council has several alternatives available to pursue the debt. One option is to instruct enforcement agents. (Regulation 45 of the Council Tax (Administration and Enforcement) Regulations 1992)

What happened

  1. Mr Z owned a dilapidated, unoccupied, bungalow from 2018. His intention was to demolish the property and use the land to build new homes. He applied for planning permission to do this. The Council refused planning permission. Mr Z appealed and in 2021 the Planning Inspectorate upheld the appeal.
  2. Mr Z says the Council was sending council tax bills to the unoccupied property, so he was not aware that he was liable for council tax.
  3. From August 2021 ownership of the property changed to a limited company (which I shall refer to as company 1), of which Mr Y is a director.
  4. The Council says, in relation to a council tax debt that had built up, it did a land registry search in October 2021. This confirmed company 1 as the owner of the property. It also saw a letter from the purchase of the property. This showed Mr Z as the owner of the property. But as Mr Z and Mr Y have similar names, the Council did not realise Mr Z and Mr Y were different people.
  5. On 4 October the Council served Mr Y a council tax demand. On 6 October, the Council’s enforcement agents contacted Mr Y about part of the unpaid council tax.
  6. On 8 October Mr Y replied to the Council advising he had never personally owned the property. He did not receive a response.
  7. On 26 October, the enforcement agents served Mr Y a notice of enforcement for part of the debt (for the most recent tax year). This instructed him to pay the debt by 8 November, or risk a visit by enforcement agents.
  8. On 1 November, enforcement agents visited Mr Y’s address to enforce debts for multiple council tax years. Mr Y paid the debt of around £5000, as the agents threatened to remove his car.
  9. On 2 November, Mr Y emailed the council tax department at the Council. He drew its attention to his past contact. He said again he had never owned the property. He advised the Council he was about to go on holiday, but would respond on his return.
  10. On 6 November the Council sent Mr Y a text advising him he still owed over £2000. Mr Y says he received this text while he was on holiday with his family.
  11. At the end of November, Mr Y contacted the Council again. He gave evidence he had never personally owned the property. He also sent the Council land registry documents confirming Mr Z as the owner.
  12. In December 2021 the Council wrote to Mr Y, responding to a complaint. It:
  • acknowledged it had made a mistake about who was the person liable for council tax;
  • advised it had stopped enforcement action and closed the council tax account in Mr Y’s name;
  • advised it would refund the payment he had made;
  • offered Mr Y £75 for the distress its fault had caused him.

Was there fault by the Council?

  1. The Council has accepted that its enforcement action was based on a misreading of the evidence it had. That was fault. It was further fault that the Council did not act on Mr Y’s contact telling it he did not own the property. Instead, three weeks later, it sent enforcement agents.
  2. Looking at the evidence, the notices sent on 6 and 26 October were only for part of the debts owed. This this may explain the anomaly (as set out in paragraphs 18 & 19) about the timescales for enforcement. But my view is the agents should have served notice before enforcing any part of the debt. That might have avoided the visit on 1 November.
  3. Given Mr Y’s imminent holiday, it is understandable that he paid the debt. But he contacted the Council before going away and advised it again he did not own the property. He also advised it of his holiday. So I find fault the Council did not consider this information. Instead on 6 November it sent Mr Y a text, threating further action.

Did the fault cause an injustice?

  1. The faults by the Council will have led to unnecessary stress and frustration for Mr Y. That is an injustice that demands a remedy.
  2. But I do not agree with Mr Y that the faults have a direct link with the full costs of his family’s holiday. Asking the Council to make that payment would not be proportionate to the fault.

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Agreed action

  1. In arriving at a suitable recommendation, I have followed the approach set out in our guidance on remedies. This says we might recommend a symbolic payment, that serves as an acknowledgement of the distress or difficulties a fault has caused a complainant.
  2. The £75 payment the Council offered Mr Y is not enough. This is because the Council had multiple opportunities to act on information from Mr Y. And he told the Council he disputed the debt but was going on holiday.
  3. Instead, I recommended the Council, within a month of my final decision:
  • send Mr Y a written apology;
  • make Mr Y a symbolic payment of £300 to recognise the avoidable stress and inconvenience the faults led to.
  1. The Council has agreed to my recommendation.

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Final decision

  1. I uphold the complaint. The Council has agreed to my recommendations. So I have ended my investigation.

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Parts of the complaint that I did not investigate

  1. We cannot usually look at issues where there is an alternative remedy, such as a right of appeal. For council tax disputes, the Valuation Tribunal is an independent expert body whose decisions are binding on councils.

Complaint b)

  1. Mr Y is questioning whether the council tax empty property increase is fair. The Valuation Tribunal can consider appeals about whether the Council applied their policy correctly in the amount of council tax charged. I do not see any reason why Mr Y could not use that appeal right.

Complaint c)

  1. Mr Y and Mr Z say the Council made a wrong planning decision. And this had the effect of making Mr Z pay council tax for longer than needed. Mr Z had a right of appeal to the Planning Inspectorate, which he used. We cannot look at the issue the Inspectorate considered.
  2. Mr Z can still challenge the Council billing him for council tax for that period. I consider it would be reasonable to expect him to make an appeal on that issue.

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Investigator's decision on behalf of the Ombudsman

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