Application for permission to appeal to the Upper Tribunal in accordance with rule 42 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules 2009.
Judge's Final Decision in the First-tier Tribunal (Information Rights). Concerns a request for information made to North East Lincolnshire Council to obtain the council’s incurred costs in respect of issuing a Council Tax summons
Application for permission to appeal to the Upper Tribunal in accordance with rule 42 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules 2009.
Judge's Final Decision in the First-tier Tribunal (Information Rights). Concerns a request for information made to North East Lincolnshire Council to obtain the council’s incurred costs in respect of issuing a Council Tax summons
Application for permission to appeal to the Upper Tribunal in accordance with rule 42 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules 2009.
Judge's Final Decision in the First-tier Tribunal (Information Rights). Concerns a request for information made to North East Lincolnshire Council to obtain the council’s incurred costs in respect of issuing a Council Tax summons
Xxxxx Yyyyy Appellant and THE INFORMATION COMMISSIONER Respondent
APPLICATION FOR PERMISSION TO APPEAL TO UPPER TRIBUNAL (GROUNDS OF APPEAL)
Documents referred to in these grounds (listed below) are provided separately: First-tier Tribunals Final Decision ICO Guidance Feb 2009 Do I have to create information to answer a request? ICO Decision Notice FS50070854 Introduction 1. These grounds of appeal are in accordance with paragraph (5)(b) and (5)(c) of rule 42 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules 2009.
2. It is deemed that the Tribunal wrongly interpreted the law in regards the Council Tax (Administration and Enforcement) Regulations 1992 and the Freedom of Information Act 2000. 1
Council Tax (Administration and Enforcement) Regulations 1992
3. It is viewed that the Tribunal has wrongly interpreted the law by stating that regulation 34(5) of the Council Tax (Administration and Enforcement) Regulations 1992, does not oblige a council to hold the requested information, see 7, of the Tribunals Final Decision (the FD).
4. Regulation 34(5) lays down the conditions under which the authority must accept payment and the application not be proceeded with (see FD, 7). Those conditions are met if there is paid or tendered to the authority an amount equal to the aggregate of the outstanding balance and a sum of an amount equal to reasonable costs incurred.
5. In the same way that it is not explicitly stated that the requested information must be held, neither is it stated (see FD, 8) that A council may use a standard estimate of the costs that it reasonably incurs.... The obligation therefore derives from interpreting regulation 34(5) of which one is submitted below:
i) After a summons has been issued but before the case is heard, the court has no jurisdiction over the level a council may claim in costs and is of no consequence whether deemed reasonable by the court (only at the hearing would the court have power to question them). ii) The amount paid or tendered to the authority is neither prescribed nor can a standard sum in a legal sense be agreed by the Court. It is therefore open to the council to accept payment at this stage, being mindful of the amount tendered as may vary from case to case (see note). iii) If an amount was paid or tendered, and the council failed to agree the sum (the court yet has no power), then a council, by virtue of regulation 34(5) must be obliged to support its claim in order to justify the sum is less than costs reasonably incurred. iv) Proceeding with the application once an amount has been paid or tendered would be breaching regulation 34(5), as it clearly states:
2 the authority shall accept the amount and the application shall not be proceeded with
Note: The circumstances of the case were explicitly stated in the request for information.
Freedom of Information Act 2000
6. In regards the question arising as to whether the information would be deemed held (on account that it would need compiling) the Tribunal has agreed with the ICOs Response (see FD, 9) in so much as:
if it involves the proposition that information is held from which the costs identified in the request could be calculated...this was not the information requested and that any arithmetical calculation would disregard the fact that costs reasonably incurred vary from case to case since they are not confined to court fees.
7. Section 8(1) of the Freedom of Information Act 2000 (the FOIA) sets out that any reference in the Act to a request for information is a reference to such a request which (c) describes the information requested.
8. Pursuant to section 84 FOIA (Interpretation), information means information recorded in any form
9. It is therefore reasonable that the requested information, described as it was, should not have been subject to the rigidity of being viewed invalid by virtue of the fact that it was necessary to aggregate the component parts.
10. The request described exactly at which point of recovery the costs were incurred; the Appellants Reply noted the automated process meaning costs specific to the case would be limited principally to court fees (3) and amounts in respect of postage, stationary and printing.
3 11. The FOIA covers any recorded information that is held by a public authority; however, it does not have to create new information to respond to requests. It may well then be argued that by having to compile information from elements it holds, the requested information is not held as it considers this to be creating new information for which there is no obligation.
12. Guidance notes (Do I have to create information to answer a request?) were published in February 2009 by the ICO as part of a series to help public authorities understand their obligations and to promote good practice. The guidance states that: A public authority is not creating new information where:
it presents information it holds in the form of a list or schedule; compiling an answer to a request involves simple manual manipulation of information held in files; or, it extracts information from an electronic database by searching it in the form of a query.
13. The guidance makes reference to an ICO Decision Notice (FS50070854) in explaining the difference between extracting or compiling existing information and creating new information. The example sought to establish that compiling information (from separate records for example), that although it may be a new task, it is not creating new information.
14. The Commissioner required the public authority to provide information in the form of a schedule. The public authority (see 27, FS50070854) "argued that it is under no obligation to provide such information. It says that if it were to accede to this request it would, in effect, be required to create new information and that there is no obligation on public bodies under the Act to do that"
15. This view was not accept by the Commissioner and in response, stated at 28 of the Decision Notice:
The information already exists: the public authority cannot be said to be creating it. And, while producing a list of the documents in which the 4 relevant information is contained may be a new task, it is not creating new information; it is simply a re-presentation of existing information as a by- product of responding to the information request.
16. The guidance then deals with a hypothetical case where the requested information is not held by an authority in a discrete form, but data (from which it is necessary to calculate a total, for example) exists in individual and separate records. Though the calculation has not already been done, it was considered if involving simply retrieving and compiling information from original sources it would not normally amount to the creation of new information. The guidance notes then state:
What amounts to a simple rather than a complex calculation depends on the level of skill and judgement required to carry out the task. If extracting the information relevant to the request requires a high level of skill and judgement, this would amount to creating new information not already held.
17. In order for the information to be disclosed, it would require the Council to carry out a simple rather than a complex calculation. The complexity of costs varying from case to case (see FD, 9) does not arise, because boundaries were laid down in the request removing them. For example, difficult to quantify elements are of no relevance which account for the length of time council staff need to be engaged with debtors agreeing or setting up payment arrangements, monitoring payment arrangements, telephone communications or written correspondence.
18. However, since the request, the Council has produced what may be considered a complex calculation (see APPENDIX A). This ultimately shows the costs as an average, taking the recovery element from the total Collection and Recovery budget, divided by the number of summonses issued. The calculation has regard to the difficult to quantify elements, as is evident from the Council Tax activity levels section of the calculation that assesses costs quantified from the time engaged with debtors arising from issuing summonses.
5 19. One would expect that if an in-depth calculation that accounts for all expenditure connected with recovery has been possible, a much simpler one, as would be required to answer the request under appeal, could be produced from information held separately. Section 11 FOIA requires a public authority to provide information in the manner requested if this is reasonably practicable.
12 June 2014
6 ANNEX A
Summons Costs 2012/13
A0191 Council Tax A0187 Debt Recovery A0184 Control & Monitoring Total
Gross Collection and Recovery expenditure 869,463 647,578 716,076 2,233,117
The gross cost of Council Tax team includes expenditure of 84,000 related to set-up arrangements (mainly software costs) for the LCTSS. This spending was funded by a CLG grant so has been excluded.
84,000
84,000
The net cost of the debt recovery team is recharged across other teams. This has been reversed to avoid duplication.
40,000
40,000
Enforcement Costs - 59,309 was paid to HMCS for fees (50% is estimated to be attributable to enforcement) and 25,148 was paid in debt recovery costs (all enforcement)
54,800
54,800
Enforcement Costs - staff and overheads
124,483
124,483
Collection costs for taxpayers who pay before summons issued (see calculation tab)
484,551
484,551
Estimate of Control and monitoring time on non council tax summons activity (80%)
572,861
572,861
Debt recovery costs for NDR/Housing Benefit/Sundry debtors (30%)