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IN THE FIRST-TIER TRIBUNAL APPEAL: EA/2017/0019

GENERAL REGULATORY CHAMBER


(INFORMATION RIGHTS)

BETWEEN:

Appellant
and

THE INFORMATION COMMISSIONER


Respondent

APPELLANTS GROUNDS OF APPEAL

Introduction

1. This is an appeal under section 57 of the Freedom of Information Act 2000 against
Decision Notices (DN) FS50636996, FS50637737, FS50637994 and FS50639222
issued by the Commissioner on 10 January 2017. These grounds of appeal are served
together with the appellants notice of appeal, in accordance with rule 22 of the Tribunal
Procedure (First-tier) (General Regulatory Chamber) Rules 2009.

Background

2. The appeal concerns requests for information made to North East Lincolnshire Council
(the Council) after the Council refused to provide evidence requested by the Appellant
in general correspondence relating to an internal investigation into fraud and perjury.
3. The Council applied to the Magistrates' court to obtain a Council Tax liability order
relating to the 2015/16 tax year. Payments were made in sufficient amount to meet the
legal obligation to pay the sums set out on the demand notice and so the account was
never in arrears.

4. The Council engineered a 'non-payment' scenario, by allocating monies to a disputed


sum which related to a previous year's account that was under appeal to the High Court.
That sum was suspended pending the court's decision which has yet to conclude. The
Council allocated monies to the wrong account attributing that decision to believing that
the sum was no longer disputed because the appeal had been withdrawn (the Councils
Witness Statement submitted for Council Tax liability hearing 30 October 2015).

5. Evidence held supports that this claim was untrue, not on account of the appeal never
being withdrawn (though it hasn't), but specifically because it is beyond all reasonable
doubt that the council knew it had not been withdrawn. The Council posted monies to
the suspended account on the premise that it believed the appeal had been withdrawn
and therefore did so fraudulently.

6. It is beyond reasonable doubt that two internet forum posts were the source of one of the
Councils exhibits (NELC12) referred to in its Witness Statement for the 30 October
Council Tax liability hearing. These were two letters on which the Council sought to
rely in justifying having no further reason to believe that the costs were being disputed
because the application for the Judicial review of the costs' had been withdrawn.

7. The original letters one dated 20 November 2013 was in response to the Administrative
Court's recommendation to withdraw the judicial review claim as the process had
prompted the Magistrates to produce a draft case and deemed there no longer a need for
further action on their part as the process of stating a case was underway. The other
letter dated 25 November 2013 was the Administrative Court's response to confirm that
the letter to withdraw had been accepted and the Court file closed.

Note: The judicial review claim, which was a separate matter from the application
to state a case for an appeal challenging the costs, was merely the vehicle used to
get the Magistrates' court to comply with the procedure. The judicial review claim
therefore was for a mandatory order, not a 'review of the costs' and so the case
stated appeal challenging the summons costs had not been withdrawn.

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8. The letters contained in the Councils submission had been redacted and matched the
entries that were posted on the public forum. The forum is the only place from which
those letters could be sourced in that form. The characteristics (redaction, formatting
etc.) of the letters which the Council submitted to the court were identical to the forum
posts.

9. The Council had for some reason not sought the original letters and made use of the
website where every correspondence connected with the matter (albeit redacted) could
be conveniently accessed. It is likely that if the Council had made use of the forum to
produce its submission, it would have been informed from the regular updates posted
that the case stated appeal was still being pursued. Even if the forum was not regularly
viewed it was enough that it did once to source content to be certain that it knowingly
made a false statement. The crux of the matter is that one of the posts from which the
content was sourced (though omitted) had the following commentary accompanying it
which reinforced the matter in itself.

Back almost to square one. Although the judicial review claim for mandatory order
was not entirely successful in mandating the Magistrates' Court to state the case
(other than the draft), it would never have been known there was a possibility to
negotiate the terms of a recognizance at the hearing. It took this process to prompt a
response from the Justices at Grimsby Magistrates' Court. The next move then will
be to arrange to appear before the Magistrates' Court to agree terms of a
recognizance.

Letters received after Judicial Review Claim withdrawn

10. The Council had acknowledged receiving letters (email attachments) by way of 'read
receipts' returned on 15 January, 14 February and 23 April 2014 in respect of letters
dated 10 January, 13 February and 22 April 2014. Those letters, which were copies of
correspondence sent to the Justices' Clerk concerned matters that left no doubt that the
high court appeal was still being pursued, and sent after the judicial review claim for
mandatory order was withdrawn.

11. The appropriation of monies was supported by the Council on the basis that it believed
the appeal had been withdrawn, and on that basis alone. The council officer had
therefore wilfully made a statement material in the proceeding, which he knew was

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untrue. As a consequence the Council now has a court order enabling it to enforce a
fraudulently obtained sum, which is likely to accumulate because of additional costs
which will over time to be sufficient in amount so the council will claim justification in
taking measures such as bankruptcy, charging order or applying for a custodial sentence.

Grounds of Appeal

12. The Council has been successful in persuading the Commissioner after considered the
value and purpose of the requests that the impact on the Councils resources dealing
with them would be unwarranted.

The burden on the Council

13. It is raised in para 20 of the DN that responding to the requests would require public
resources to be expended and it reasonably likely that compliance would generate
further requests and associated correspondence. In asserting this there appears to have
been a failure of the Commissioner to weigh up the Councils net gain of the requests by
offsetting the burden element with the advantages in terms of administrative fault which
is often identified in the process (see below paras 19 - 38).

14. With the almost guaranteed participation of tens of thousands of volunteers, it is


probable that one of the governments objectives for introducing the Freedom of
Information Act was as a cheap and effective way to find out areas where public bodies
are failing, without directly having to deal with those who may have been affected.
Ironically it's those dedicating their time voluntarily by attempting to hold their councils
to account who are criticised for the amount of taxpayer's money it costs.

15. In concluding that section 14(1) has been correctly applied, the Commissioner has
considered representations by the Council relating to correspondence going back as far
as 2011. It is assumed that the council has been selective with the information it has
made available to the Commissioner. What the Commissioner presumably does not
know, which would be difficult for the Council to deny, is during that period many
lessons have been learned as a consequence of the FOI requests and correspondence on
a theme of Council Tax administration.

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16. Facilitating this has not been recreational, rather a significant burden, caused some years
before by the Councils intransigence in accepting responsibility for its contractor
bailiffs attempts to defraud me [Exhibit 1]. This encouraged further examination
uncovering among other matters the Council routinely denying any wrongdoing when
the trouble was taken to raise matters through its formal complaint procedure.

17. The approach of admitting nothing presumably enables the presentation of misleading
figures that look favourable in performance league tables published annually by the
Local Government Ombudsman. Wrongdoing, to the extent that no rational thinking
person would endorse, is routinely defended by the Council but there is no obvious
pressure to do otherwise because Councillors who receive taxpayer funded allowances
to represent the interest of the boroughs residents are apparently not fulfilling their role.
Elected members, for example, sitting on scrutiny panels demonstrate their acquiescence
by routinely voting in favour of proposals that are of questionable legality and would
certainly be objected to by the majority of the public.

18. For a significant number of years the council has benefited from a free service which is
quite the opposite to the claim that implies a drain on public resources. It might be said,
given the catalogue of maladministration that the council has been alerted to, that the
taxpayer gets a better deal because contrary to the way elected members are funded,
none of their Council Tax has been diverted for the Council being held to account.

19. A sample of errors / areas of concern which have been highlighted to the Council by
requests and correspondence over the period of time referred to in paras 12 and 20 of the
DN are briefly described below:

Out of date schedule of bailiff fees sent to over 40,000 customers

20. A Freedom of information request made on 8 June 2011 (ref: 20110622) alerted the
Council that a standard schedule of bailiff fees had been sent 43,024 times to residents
with out of date information [Exhibit 2]. Its document, which related to the council tax
enforcement (schedule 5) fees, did not reflect changes that should have been made on
the 1st April 2007 in accordance with the Council Tax and Non-Domestic Rating
(Amendment) (England) Regulations 2007.

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21. The error was first pointed out to the Council (in writing) on 22 February 2011 after
which 4,528 of the erroneous notices were sent out to residents.

Incorrect costs warned on summonses sent to over 3,000 customers

22. Another disclosure as a consequence of a request made 3 June 2011 (ref: 20110607)
revealed that in respect of a council tax liability order hearing of 2 June 2011 a
summons document warning of additional costs which were no longer applicable was
sent out to 3,359 householders.

23. The Council had informed the court in writing, that from 1 April 2011 it would be
changing the composition of the costs by increasing the summons from 32 to 70 and
no longer imposing 25 costs for obtaining the liability order [Exhibit 3].

24. The Council was therefore alerted to the need for a greater level of attention when
monitoring the accuracy of statutory notices, especially as one error is likely to be
duplicated thousands of times (the downside to automation).

Statutory demand notices needing to be resent

25. A Freedom of information request made on 23 June 2011 (ref: 20110659) raised
awareness to a significant cost to Council Taxpayers (and burden on the Councils
resources) resulting from an error duplicated thousands of times from a systems
reliance on automation.

26. Statutory notices warning of bailiff enforcement were sent out by the Council to 2,207
householders bearing no name which had to be resent. Though the total cost could not
be quantified because staff time had not been recorded separately it was identified that
the additional postage for resending the notices was 847.71.

Monitoring the enforcement process

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27. Concerns about magistrates failing in their legal duty were brought to the fore in
national news: see Shes at the door: Britains first 1m bailiff 1. The data had been
obtained from the Council resulting from a request made 29 June 2011 (ref: 20110665)
to find out the number of Liability Orders for non-payment of Council Tax where the
outstanding balance was less than 100 with the amount itemised if any were for less
than 10. The figures obtained (over a five year period) revealed a total 3,528 liability
orders for initial debt of 50 or less 2.

28. On this failure to follow due process it was held in Regina v Brentford Justices ex parte
Catlin [1975] QB 455, that ...before a summons or warrant is issued the information
must be laid before a magistrate and he must go through the judicial exercise of
deciding whether a summons or warrant ought to be issued or not. If a magistrate
authorises the issue of a summons without having applied his mind to the information
then he is guilty of dereliction of duty...

February 2014 report reviewing council tax court costs

29. It was presumably the first time a local authority reviewed its court cost and determined
that in order to comply with the law (not profit) it would need to reduce the standard
level [Exhibit 4]. The 14% reduction of the 70 which was the amount they were
imposing was only a token amount, but should have (in theory at least) set a precedent
for other local authorities.

30. A request for data was made in respect of the number of council taxpayers who were
summonsed for non payment, before and after changes were made to Council Tax
benefit, to assess what impact the 2013 Welfare reforms had on the activity. It was
anticipated that because benefits would have already been subjected to means testing
and deemed to be the minimum amount necessary to get by frugally, the numbers taken
to court would rocket. Incomes of those same people who before the reforms were
exempt from Council Tax would be taken below the breadline.

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Sunday Times 13 November 2011 Debt collection on behalf of councils is booming as people are chased for
as little as 1p.A freedom of information request to North East Lincolnshire council revealed it issued 1,387
court orders for debts of less than 25 between 2006 and 2011 including 82 for less than 10 and three for just
one penny..
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Chief Executive letter of 7 November 2011 (NEL/118211/12) The council's collection team checks the
accuracy of all accounts before passing them to the enforcement stage. Accounts are only progressed to
enforcement for amounts over 50.

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31. The request made 12 September 2013 (ref: 5782_1314) obtained monthly data for the
number of summons issued and liability orders granted which allowed a comparison to
be made between the two years for the months May to August. In 2012, costs raised in
that period were a third of a million pounds, whilst for the same months subsequent to
the reforms the figure increased by 67% to over half a million.

32. Prior to the request the Councils external Auditor was contacted regarding profit being
generated through Council Tax court costs and concerns were raised about bailiff fee
fraud (5 October 2012). A High Court application had also been instituted in November
2012 challenging a Council Tax liability order and the application of summons costs.
The Council has historically only ever increased Council Tax court costs for the purpose
of generating income, a deterrent or penalty. It is therefore unlikely that the Council
would have been mindful of the effect welfare reforms had on pro rata costs and as a
consequence lowered the standard sum, were it not for the legal challenge, data request
and/or the Auditors involvement.

Identification of inappropriately applied bailiff fees

33. It took 18 months to obtain data first claimed not to be held, which on challenging the
Council was admitted to be held after all, but would then not be disclosed owing to the
estimated 9,600 staff hours (240,000) barrier. This claim allowed the Council to
convince the Information Commissioner and subsequently a Tribunal Judge that an
appeal could not succeed and be struck out. Had another council not effortlessly
disclosed information under the same terms and within costs limit, then the Council
would have succeeded in keeping the data from the public.

34. Information was requested on 8 January 2012 (refs: 190411/12 and 3024_1213) in
respect of two categories of enforcement charges which were applicable at the time; i) a
redemption fee, and; ii) an attendance with a vehicle.

35. The fee applied for redeeming goods, was routinely added to debtors' accounts in
circumstances where goods were not removed. On investigating a complaint, the Local

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Government Ombudsman3 stated in her report that "the goods were not made available
for collection by the debtor as they were never removed. This was maladministration."

36. Data revealed that during approximately six years from 2007 the redemption fee was
added to the debt of 1,418 householders. Statistics show at most, goods are removed in a
handful of cases and so based on the statutory minimum (24.50) the council allowed its
bailiff contractor to impose fees of 34,741 in circumstances where the LGO considered
it maladministration.

37. Fees listed in the schedule for attending to remove with a vehicle have also had the LGO
focusing on bailiffs charging this, who along with various authorities have agreed
unanimously that the charge should not be imposed unless goods had first been levied.
During the period, "van fees", valued 603,590 were charged to 4,643 householders.
Against LGO ruling, 2,232 of these (290,160), incurred the council sanctioned 130 on
the same visit as a levy, not on a follow-up to a levy which can be the only interpretation
of the law which defines an attendance as "a view to the removal of goods".

38. Humberside police were engaged in the matter protracting over two and a half years
from February 2013 to its eventual conclusion in September 2015. The force made a
decision in November 2013 that it would not investigate on the spurious grounds that it
believe that no criminal offences had been committed and maintained its decision in the
face of comprehensive representations contending its reasons. However, given that the
allegations were not considered a criminal matter, it is a unknown why a decision had
been made in May 2013 [Exhibit 5] to cease charging the redemption fee (Head H).

Proper avenues for challenging a demand for Council Tax

39. The Commissioner considers at paras 18-19 of the DN, that if all avenues of appeal have
been exhausted it must be concluded that any further requests are vexatious on the
grounds that they intend to further express dissatisfaction with the outcome. This view
would only be qualified if in fact the reason was solely to express dissatisfaction; but
this is something the Commissioner could not possibly know. Moreover, if all the
circumstances were considered, for example the evidence which proves conclusively

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Reference numbers for relevant Local Government Ombudsman's reports are 11 007 684 on an investigation
into complaint against Blaby District Council and London Borough of Ealing, 95A01890 & 95A04826.

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that the Council had in fact submitted a false statement to the court, then she would have
logically concluded that the purpose of the requests was far more than to express
dissatisfaction.

40. It is recognised that that the Commissioner need not consider whether there has been a
crime, but there is a responsibility to weigh up if the complainant genuinely believes
that the Councils investigation was conducted improperly. If the belief is genuine then
on the balance of probabilities the reason for the request would more likely be for
obtaining information that would assist further action being embarked upon.

41. The Commissioner should not have to consider the reputational risk to the Council in
respect of the disclosure of information. The lengths that the Council has gone in order
to prevent compliance indicates that the Council seeks to avoid embarrassment. The
same applies for the police, Local Government Ombudsman and courts.

42. The requests which have been labelled vexatious concern the Council and therefore
question why the police, Local Government Ombudsman and courts are considered in
the Commissioners DN. Notwithstanding this, it is important to put the record straight
firstly with respect to the LGO.

43. Legislation governing the LGOs investigatory powers has been enacted to enable its
application to cases with such flexibility that the same complaint could either fall within
the Ombudsman's remit and be accepted for investigation or be considered outside his
remit and be rejected. Preliminary assessments ensure complaints are filtered out so the
vast majority fall at the first hurdle. Outcomes are invariably angled towards
invalidating the complaint based on their judgment that the criterion to be considered
valid under legislation governing investigatory powers has not been met. Hence, the
matter falls outside the LGO's remit.

44. It appears that the Council has misinformed the Commissioner because the basis upon
which the LGO would not investigate the complaint was because it considered the
courts were better placed to deal with the matter which does not amount to considering
the concerns and finding that no further action was warranted. Whether or not the courts
were better placed is another matter, however, any suggestion that such action was
pursued would be omitting to consider the financial barrier and technical difficulty of

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litigation. It is also worth remembering that the complainant is invited to make
representations on the draft decision [Exhibit 6], but all the evidence points to this being
a formality as investigating officers routinely produce identical final decisions (see para
45 below).

45. On considering the representations made on the draft decision, and the LGO maintaining
its decision not to consider the complaint further it is more likely that the reason why the
complaint was not investigated was not because it lacked merit and would unlikely find
fault with the council, but because the organisation has only finite resources and so does
not extend to investigating every complaint.

46. Secondly, Humberside police did not consider the concerns and find that no further
action was warranted, neither were allegations not investigated on account of there
being no realistic prospect of conviction. The force had been advised by its solicitor that
the issues may have been appeal points that could be raised at any subsequent appeal
hearings and that Humberside police do not investigate allegations of perjury unless a
request to do so comes from the court themselves. However, the view of the Crown
Prosecution Service published on its website under heading "Cases Involving
Allegations of Perjury" is as follows:

"Where a judge or magistrate believes that some evidence adduced at trial is


perjured s/he can recommend that there should be a police investigation.

The absence of such recommendation does not mean that there is no justification
for an investigation."

47. Anyone who has tried will know that getting the police to investigate crime is next to
impossible. Inevitable grievances about failures are channelled instead through the
forces statutory complaint procedure which falls under the Police Reform Act 2002 and
the Police Reform and Social Responsibility Act 2011. The majority of issues do not
qualify to be dealt with by the Independent Police Complaints Commission (IPCC) and
are referred back to the police force that was complained about to investigate itself. The
IPCC has to act according to the legislation and has no remit to intervene where the
relevant authority to deal with a complaint/appeal, is the police force. The force
complained about is therefore able to contain, what in the complainants eyes, is the
improper exercise of police powers, and prevent it from being further scrutinised. That

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is unless the person aggrieved is misguided enough to challenge the mater in the High
Court.

48. Thirdly, the court did not consider the concerns and find that no further action was
warranted. The unwillingness of the police to investigate was attributed to the reasons
set out in paragraph 46 above (police letter, 13 January 2016). The letter was forwarded
to the court on 19 of January under cover of an email which stated that I have provided
the court with evidence that North East Lincolnshire Council produced a false witness
statement and would like the court to confirm that the crime has in fact taken place and
confirm this with the police. The court replied on 26 January simply stating that the
court is not taking any action regarding your allegations of perjury.

49. In anticipation of having to defend myself in court at a potential committal hearing as a


consequence of the criminally obtained council tax enforcement order, I asked the court
to produce a letter explaining that the reason why Humberside police did not investigate
my allegations was not because there was no realistic prospect of conviction, but
because the court was unwilling to cooperate by requesting the Police investigate. The
court trivialised the concerns, replying without any reference to the fraud I had been a
victim of, that the matter related simply to an issue of non payment of council tax and
would be given the opportunity to attend court for an inquiry into my financial
circumstances where the court will deal with that issue and that issue alone.

Councils reference to a previous decision notice

50. The Council has referred to a previous DN (FS50600411) in which the Commissioner
recognised that there were well established means by which individuals could dispute a
demand for Council Tax. Again, it is not know what the relevance is to the requests
presently being appealed. This appeal is dealing with requests which concerned the
Council submitting perjured evidence to the court. Therefore, the matter is criminal
whereas as a dispute generally concerning Council Tax would be civil.

51. Apart from being entirely irrelevant to the present requests, the Council knows that I
pursued an appeal in November 2012 to the High Court (see above para 4). It is because
the Council suspended recovery of the disputed costs until the case had been determined
that the evidence it submitted to the court was perjured.

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52. The Council allocated monies to the disputed sum which related to a previous year's
account, leaving the account that should have been allocated the sum in default. The
Council allocated monies to the wrong account attributing that decision to believing that
the sum was no longer disputed because the appeal had been withdrawn. The Council
stated this to the court and evidence has been documented to prove beyond all doubt that
the statement was untrue and why the Council could not have believed it to have been
true.

The Councils offer to arrange a meeting

53. Four references to meetings have been revealed upon checking correspondence held on
file. The earliest is a response from the Councils Chief Executive who had been asked
to arrange a meeting after improperly addressing concerns about the Councils bailiff
contractor who had made a fraudulent attempted to collect hundreds of pounds and
breached the Data Protection Act [Exhibit 1]. Contained in his 22 May 2011 email was
the following:

....as you will no doubt gather from the above I have no intention to taking up your
offer of a meeting, nor will be asking any of my staff to do so.

54. Secondly, a meeting was held in the Municipal Offices with who was then the Councils
Income and collections manager. Though the date is uncertain it would have been in
relation to concerns that were raised in a formal complaint about a bailiff visiting for
money which the Council had erroneously obtained a court order to enforce. The letter
reviewing the complaint by the Chief Executive was dated 7 November 2011 in which
the meeting was referred to. The Liability Order was quashed incidentally by the
Magistrates court on application by the Council.

55. The next meeting, which the Council requested I attend (attended on 8 August 2014)
was also at the Municipal Offices. The meeting was held to discuss details of another
formal complaint.

56. The most recent reference to a meeting refers to the 26 January 2017. The Councils
Deputy Monitoring Officer was asked to agree a mutually convenient time to sign a
draft Consent Order [Exhibit 7] in connection with the High Court appeal instituted in

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November 2012. The signed 'case' was finally obtained on 16 January 2017 after a four
year fiasco [Exhibit 8]. However, the Council has not responded.

Conclusion

57. It is obvious that the motive for the Council applying section 14(1) has been to avoid
disclosing anything that would expose it for its actions which have been to defend the
indefensible.

58. Dransfield v Information Commissioner and Devon County Council [2015] EWCA Civ
454 held that: ...in defining vexatiousness the emphasis was on an objective standard.
The starting point was whether there was a reasonable belief that the information sought
would be of value to the requester, the public or any section of the public...

59. The Commissioner concludes that there is limited evidence available to the
Commissioner that suggests the requests serve a clear public value. Corruption in
Councils should not be hidden from the public and certainly not be assisted by the
Commissioner. The value to the requester is obvious; the Commissioners reasons for
contending this, i.e., that the matters have seemingly been comprehensively addressed,
have been made argued.

7 February 2017

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