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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

EXHIBIT 6
Local Government Ombudsman complaint
COMPLAINT TO THE LOCAL GOVERNMENT
OMBUDSMAN

Part III of the Local Government Act 1974 21 March 2016

AGAINST

NORTH EAST LINCOLNSHIRE COUNCIL

List of Annexes:

Annex A Councils 14 March 2016 final response

Annex B 10 November 2015 email query to Council

Annex C 17 December 2015 formal complaint letter to Council

Annex D Councils 21 December 2015 cover letter

Annex E Councils 13 November 2015 response

Annex F 25 December 2015 second formal complaint letter to Council

Annex G Councils 19 January 2016 first stage formal complaint response

Annex H 26 January 2016 third formal complaint letter to Council

WHAT DO YOU THINK THE BODY DID WRONG?

The complaint surrounds North East Lincolnshire Council (the Council) engineering
default in circumstances where payments were made in sufficient amount to meet the legal
obligation I was under to pay the sums set out on the demand notice relating to my 2015/16
Council Tax liability.

The Council misallocated payments to a previous years balance, thus leaving a shortfall in
respect of the current years account (that which the payment was intended). The presumed
cause being that an instalment was met from two transactions, and with neither payment
matching the instalment amount set for the current council tax year the system automatically
posted it to the oldest balance. Payment however at least covered the amount owed at all
times and was for part of the period in credit.

The Councils right to appropriate payment did not arise on account of the transaction not
matching an instalment amount (not if doing so put the current year's liability in arrears).
According to established appropriation laws, a debtors election may take an implied form, as
well as expressed. Therefore, where payment is unspecified, it would be implied that the
payment was intended for the account most beneficial to the debtor to reduce, which would
clearly be the current year's, if allocating monies to another balance would put the current
years account in arrears.

R v Miskin Lower Justices (1953) held that where an amount so obviously relates to a specific
liability, it would be an unwarranted assumption to allocate the payment elsewhere. Billing
Authorities are able to set parameters in their revenue system so when payment amounts are
not recognised, monies are allocated to the current year. The anomalies caused by automation
are largely eliminated because of this since it ensures debtors do not incur additional costs
through subsequent recovery applications. This is in agreement with the judgment in R v
Miskin Lower justices, as it would be an unwarranted assumption to allocate monies to a sum
in arrears if it is likely to also put the current year's liability in arrears.

Note:

A process that relies on automation such as the council tax payments system, will inevitably
present a flexibilityefficiency tradeoff. Having the system set so unmatched payments are
posted to the most recent account has to achieve greater compliance with the general
principles which allow for implied payments, simply because the authority could not
reasonably assume that the debtor would elect the oldest balance, knowing his current due
payment was deficient and incur further expense. This approach would, for reasons self-
evident, require less manual adjustment with respect to reallocating unmatched payments
rendering the automated aspect of the process more compliant with the judgment in R v
Miskin Lower justices.

It is apparently standard practice, whichever way their systems are set, for billing authorities
to regularly check unmatched payments to ascertain which account payment is intended, if
there are arrears outstanding. However, what fundamentally matters (after initial payment

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allocation) is for the appropriation of those unmatched to the current year's liability if
allocating payment to the oldest debt would put the current year's liability also in arrears.

Balance suspended from enforcement

The balance to which monies were misallocated by the council was in any event suspended
from enforcement. Therefore, notwithstanding that the councils right to appropriate payment
did not arise, even if it had for whatever reason, it should have become immediately obvious
from the account notes that the sum was subject to court proceedings. As there has been no
outcome yet to the proceedings the suspension has not been lifted and the sum remains
suspended. It was clear from my current council tax bill alone that the suspension had not
been lifted as it was itemised separately and described as a sum subject to court
proceedings. The relevant part of the council tax bill states under the header Memorandum
Note as follows:

Your instalments for 2015/16 do not include your 2014/15 account balance
As at 27-FEB-2015 your 2014/15 Council Tax account balance is 60.00
60.00 of the total is subject to court proceedings

Linking matter of complaint to court proceedings

The Council has refused to address the complaint with the justification being that it raises
matters about a Liability Order and so falls outside the scope of the complaints process.

It has been reiterated over the course of the complaint that the matter concerns payment
misallocation. The council has taken it upon itself to redefine the matter so it appears to
concern court proceedings for the obvious reason that it can deny me the opportunity of a just
outcome to the formal complaint. Moreover, there is evidence this has been done in
anticipating that the matter will be escalated to the LGO in the hope that its handiwork will
fall in the hands of an acquiescent officer assigned to preliminary assess the complaint.

The summons charge, to which no further sum is added on being granted the liability order,
was applied to my account on or around the 15 September 2015, approximately two weeks
before the application for a liability order was made to the Magistrates court. Therefore, the
summons charge, which the council is claiming to be the matter of complaint, even if it was,
concerned solely its actions, as the court has no jurisdiction over costs until the case is
brought before the court.

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Other matters

It would be negligent if I omitted to point out the disingenuous claim by the council which
implies that its failure in responding within a reasonable time-frame is a rarity. I have from
the same department had to wait four weeks for a reply in relation to a previous matter and
even after the council had made the claim in its first stage response, the final response
exceeded its own deadline by a week.

The matter regarding my election for all payments to be allocated to the current year's
liability, whether or not a sum matches an instalment amount, which was improperly
addressed in the first stage response (and contended), was entirely ignored in the final
response.

HOW HAS THIS AFFECTED YOU?

The error has caused the inconvenience of having to dispute the council's actions and the
subsequent refusal to cooperate has caused the need to escalate the matter via the councils
formal complaints mechanism and of course enter into a complaint with the LGO. These
actions alone have taken a significant amount of time and caused gross inconvenience.
However the further consequences, which I would be prudent not to refer to in this complaint,
have added substantially to that gross inconvenience.

WHATDO YOU THINK THE BODY SHOULD DO TO PUT THINGS RIGHT?

The council was not entitled to allocate payment to the balance it did and therefore it should
be reallocated to the account to which it was intended.

According to the council, there is an outstanding sum of 211 in respect of my 2015/16


council tax liability. If the effects of the error were put right, it would require that the
misallocated payment of 60 is reallocated to the 2015/16 account (restoring the previous
outstanding balance); the 60 penalty added September 2015 would have been invalid and so
require removing from my account. The remaining sum outstanding would be 91 which I
would then be able to settle without fear of further maladministration attributable to the
council allocating it wrongly.

The council has implied in its 13 November 2015 letter that it does not intend allocating all

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future payments in accordance with my election. In order to clarify this I instructed the
council, as I am lawfully entitled, that unless there were express instructions (in writing) to
the contrary, payment should be allocated to the current year's liability, whether or not a sum
matches an instalment amount.

The seriousness of the failure to take these measures can not be over stated. Prompt action is
required to ensure that the immediate consequences of the error are remedied and also to
prevent unwarranted enforcement measures that may otherwise follow. Should the error not
be remedied it is likely a constant cycle of recovery action will result, incurring additional
costs which will accumulate over time to be sufficient in amount that the council will achieve
its clearly vindictive aim of justifying taking action such as bankruptcy or imposing a
custodial sentence.

It would be reasonable to expect the council offer payment of a suitable amount firstly as
compensation for the error, and secondly for its intransigence by refusing to cooperate,
causing the added inconvenience I'm being put to.

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Annex A H
Omitted
Request complete paper

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Local Government
OMBUDSMAN
11 April 2016

Mr

GRIMSBY

Our ref: 15 020 295


(Please quote our reference when contacting us and, if using email, put the number in the email subject line)

Contact Chris Upjohn on 0330 403 4676 or by email to c.upjohn@coinweb.lgo.org.uk

Dear Mr

Complaint against North East Lincolnshire Council

The Ombudsman has asked me to assess your complaint to see if it is about a matter we can or
should investigate. Based on the information I have, my current view is that we should not
investigate your complaint. The enclosed draft decision explains how and why I have reached this
view.

Before I make a final decision, I should welcome your comments on what I say in the draft
decision. If you do wish to comment, please ensure that I receive your response by 20 April 2016.
If I have heard nothing by then, I will likely make a formal decision not to investigate your complaint
for the reasons explained in the draft decision. If you need more time to comment, please explain
why this is and I will consider your request.

You will see that I have referred to you as Mr B in the statement. This is because we have a
commitment to publish all of our decisions on our website if possible. If you consider that
publication of the decision will identify you, please explain why this is and we will consider whether
to make an exception to our normal policy.

Yours sincerely

Chris Upjohn
Investigator, Assessment Team

PO Box 4771 www.lgo.org.uk


Coventry
CV4 0E1 0300 061 0614
11 April 2016

Complaint reference:
15 020 295

Complaint against:
North East Lincolnshire Council

The Ombudsmans draft decision


Summary: The Ombudsman should not investigate this complaint that
the Council allocated council tax payments to the wrong account. The
courts are better placed to deal with this matter.

The complaint
1. The complainant, who I refer to here as Mr B, has complained the Council has
allocated council tax payments to the wrong account.

The Ombudsmans role and powers


2. The Ombudsman provides a free service, but must use public money carefully.
She may decide not to start or continue with an investigation if, for example, she
believes another body is better placed to deal with the matter. (Local Government Act
1974, section 24A(6))

How I considered this complaint


3. I have considered what Mr B said in his complaint.

What I found
4. Mr B says he made payments to his council tax account for 2015/16 but the
Council allocated these to the account for an earlier year. He says the Council did
not follow the law when doing this.
5. Because the Council believed Mr B had not made the required payments for
2015/16, it applied to the magistrates court for a liability order.

Draft decision
6. Mr B believes the Councils actions are wrong in law. The Ombudsman cannot
decide the law, only the courts can do that. My current view is that Mr B could
have put any arguments about the Councils actions to the magistrates court
which was better placed to deal with this matter. For this reason, the Ombudsman
should not investigate this complaint.

Investigators draft decision on behalf of the Ombudsman

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Local Government Ombudsman Grimsby
PO Box 4771 North East Lincolnshire
Coventry
CV4 0EH

19 April 2016

Ref: 15 020 295

Dear Mr Upjohn

Complaint against North East Lincolnshire Council

I am writing in response to your letter of 11 April 2016 and wish to submit my representations on
your draft decision which is set out in Annex A of this letter.

Yours sincerely
Annex A

The Ombudsmans draft decision

Summary: The Ombudsman should not investigate this complaint that the Council allocated
council tax payments to the wrong account. The courts are better placed to deal with this matter.

Simply stating that the courts are better placed to deal with this indicates that insufficient
consideration has been given to the matter. The statement is unhelpful as no available court
process has been conveyed to advise of the remedy, nor is any explanation offered for why the
courts are better placed to deal with it.

The available court process in all probability has not been considered because if it had, the likely
conclusion would be that the only remedy would be via the High Court either by a claim for
judicial review or an appeal by way of a case stated. Clearly with all that that entails it would not
be reasonable to expect that such litigation was resorted to.

In that regard, the Ombudsman has discretion as a number of reports acknowledge; for example,
paragraph 4 of LGO ref: 14 009 989:

The law says the Ombudsman cannot normally investigate a complaint when someone
could take the matter to court. However, she may decide to investigate if she considers it
would be unreasonable to expect the person to go to court. (Local Government Act 1974,
section 26(6)(c).

The concluding sentence of sub-section 6 of section 26 of the Local Government Act 1974 states
as follows:

Provided that a Local Commissioner may conduct an investigation notwithstanding the


existence of such a right or remedy if satisfied that in the particular circumstances it is
not reasonable to expect the person aggrieved to resort or have resorted to it.

Additionally, LGO Guidance on jurisdiction (commencement of proceedings) introduces the


idea that court proceedings may be the injustice as opposed to the fault, particularly concerning
cases where, had no fault occurred, court proceedings could have been avoided. The relevant
paragraph is as follows:
The exclusion of court proceedings from the Ombudsmans jurisdiction was intended to
prevent us considering those matters decided by the courts using different evidential
standards, and applying the more restrictive test of legality as opposed to
maladministration. But there is no prohibition of an investigation about whether, had
fault not occurred, court proceedings could have been avoided. This is because, in such
cases the court proceedings are the injustice as opposed to the fault. We have in the past
criticised councils for taking bankruptcy proceedings where even though the
application was successful we did not feel it was a proportionate response to
enforcement of a debt, given the prohibitive nature of the costs involved for the person
being made bankrupt. We have also found fault with councils obtaining Liability Orders
from the courts for unpaid Council Tax where they should not have done so.

The relevant fact sheet (Council Tax) on the LGO website under heading ...what will the
Ombudsman look for?, mainly covers aspects pertinent to this complaint. Those under that
heading which are relevant, are quoted as follows:

We consider whether the council has done something wrong in the way it went about
dealing with your council tax account which has caused you problems. Some issues we can
look at are if the council:
.........

failed to act on information you provided (especially where this affects your liability
for council tax or your entitlement to discounts or exemptions)
delayed in dealing with disputes
made mistakes in dealing with your payments (such as failing to credit them to your
account, allocating them to the wrong account, or failing to pay in council tax support
you have been awarded)
continued to take recovery action against you when it shouldnt (such as when you
have already paid off the debt, or you are keeping to an agreed arrangement to pay
the debt)

.........

The complaint

1. The complainant, who I refer to here as Mr B, has complained the Council has allocated
council tax payments to the wrong account.
The Ombudsmans role and powers

2. The Ombudsman provides a free service, but must use public money carefully. She may decide
not to start or continue with an investigation if, for example, she believes another body is better
placed to deal with the matter. (Local Government Act 1974, section 24A(6)).

As almost all council decisions can be challenged in the courts, this reasoning could be
viewed as an abuse of the Ombudsmans discretionary powers given that it may be applied
in almost every case where, for example, the investigator is under pressure to filter out
complaints. With regards the use of public money, the fact that as a taxpayer I have
contributed to funding the service makes a greater argument that the injustice I have been
caused is investigated and should not have to resort to alternative costly remedies. LGO
Guidance on Jurisdiction states with relevance to this point as follows:

Almost any decision by a public body is actionable in the courts. As we are publicly
funded to decide complaints of maladministration causing injustice, we should not be
unduly prescriptive in relying on the availability of alternative remedies. Unlike
many alternative remedies, the LGO is free to use, does not normally require expert
representation, and we do not impose costs on those whose cases we do not uphold.

Having been alerted to council officers who are using their public office as a means to carry
out personal vendettas, if the organisation were in these circumstances to exercise discretion
not to investigate there must be factored into that decision what risk it would pose as to the
organisations reputation.

How I considered this complaint

3. I have considered what Mr B said in his complaint.

One important aspect of the complaint apparently overlooked is the Council flatly refusing to
address the grievance (except the delay) with the justification being that it raised matters
about a Liability Order and so was outside the scope of the complaints process. This is
wholly inexcusable because regardless of the courts decision, the council is entitled to apply
to the same court which granted the order to have it quashed if it came to light afterwards
that the application should not have been made. The Council is exploiting the court granting
the order to circumvent scrutiny, when fully aware that it was seriously at fault in its actions.

What I found

4. Mr B says he made payments to his council tax account for 2015/16 but the Council allocated
these to the account for an earlier year. He says the Council did not follow the law when doing
this.

This over simplifies as well as misrepresents the complaint and is what I had predicted the
Council would rely on to get away with being exposed for what is essentially gross error.
Presumably the Effective Complaint Handling courses offered at a fee by the LGO to local
authorities include content informing them how best to produce their responses so on being
considered, the Ombudsman will have material to which may be referred in order to reject
the complaint based upon it being outside her jurisdiction.

LGO Guidance suggests that an investigator with delegated authority to make decisions
would be required to identify aspects of complaint which are separable from points on law,
and those that can, be will be within jurisdiction. So, to give just two examples where the
matters can be positively separated from questions of law are:-

i) The balance to which monies were misallocated by the council was suspended
from enforcement, therefore it was maladministration that has caused the injustice

ii) Councils 6 week delay in responding to correspondence was to my detriment, as


this enabled the council to misallocate further monies during that period, and even
though admitting its error, has refused to allocate it to the account I requested.

Moreover, it is evident from a report on an investigation into Newham BC (ref 08 019 113)
that the ombudsman retains jurisdiction to investigate administrative actions prior to the
issue of court proceedings. This ties in with the Guidance where it deals with the
aforementioned commencement of proceedings and the claim made that the LGO has
found fault with councils obtaining Liability Orders from the courts for unpaid Council Tax
where they should not have done. Furthermore, listed among the matters that are IN
jurisdiction under the same heading is the process leading up to the councils decision to
commence proceedings.

5. Because the Council believed Mr B had not made the required payments for 2015/16, it applied
to the magistrates court for a liability order.

The Council was fully aware that the balance to which monies were misallocated was
suspended from enforcement by the simple fact that the appeal to which the sum related had
not been determined. The council had written in this matter to the effect that until there was
an outcome to the proceedings the sum was suspended.

Draft decision

6. Mr B believes the Councils actions are wrong in law. The Ombudsman cannot decide the law,
only the courts can do that. My current view is that Mr B could have put any arguments about
the Councils actions to the magistrates court which was better placed to deal with this matter.
For this reason, the Ombudsman should not investigate this complaint.

The complaint partly surrounded the Councils unlawful actions and evidence of that was
supported in my representations. However, what matters as far as the Ombudsman is
concerned is the part of the complaint that is attributable to maladministration which even
considered alone effectively accounts for the entire injustice. An investigation into the
Councils unlawful actions would clearly be beneficial, but one into the maladministration in
its own right would be capable of providing the remedy sought. To reiterate an earlier point,
matters can be positively separated from questions of law, which is endorsed in R v Local
Commissioner etc [2000] EWCA) Civ 54 where at paragraph 47 of that judgment it states, so
far as is relevant, the following:

The Commissioner's power is to investigate and report on maladministration; not to


determine whether conduct has been unlawful. So there is no reason why, when
exercising the power to investigate and report, (which has been conferred on him by
the 1974 Act) he should, necessarily, be constrained by the legal principles which
would be applicable if he were carrying out the different task (for which he has no
mandate) of determining whether conduct has been unlawful.
The fact sheet referred to earlier but under heading what happens if the Ombudsman finds
that the council was at fault?, could in almost every sense be applicable to this complaint:

We cannot decide whether you are liable to pay council tax or whether you are entitled
to exemptions or discounts. But, if we find that something has gone wrong in the way the
council dealt with your council tax account we can ask it to:

take action to put the matter right, such as correcting mistakes on council tax
records and issuing the right bills and demands
ensure that payments you have made or council tax support awards are properly
paid into your account
deal with your correspondence or appeal
withdraw a summons or bailiffs and waive costs where appropriate, or
pay compensation. Whether we ask for compensation and the amount we
recommend will depend on how you have been affected by what has gone wrong.
For example if you have received any unnecessary summonses, liability orders or
bailiffs visits because of the councils errors.

Where we find fault with the councils procedures we will often recommend that the
council makes changes so the same problem does not occur again in the future.

Examples of some complaints we have considered

Ms Y set up a standing order to pay her council tax. There was no council tax
reference number on the standing order form so the council did not allocate her
payments to her account. The council knew about the mistake, and Ms Y provided
proof of payment several times. However, it took the council six years to resolve the
problem. Meantime the council continued to take legal action against her for money
she did not owe. The Ombudsman asked the council to pay Ms Y 1,800 for the
many summonses, liability orders and bailiffs' letters she had received and for her
efforts in pursuing her complaint over a long period. The council also agreed to make
changes to its process for dealing with missing payments

Investigators draft decision on behalf of the Ombudsman.


Local Government
OMBUDSMAN
20 April 2016

Mr BY EMAIL ONLY

GRIMSBY

Our ref: 15 020 295


(Please quote our reference when contacting us and, if using email, put the number in the email subject header)

Contact Chris Upjohn on 0330 403 4676 or by email to c.upjohn@coinweb.lgo.org.uk

Dear Mr

Complaint against North East Lincolnshire Council

Thank you for your comments on my draft decision. I have considered what you said but I have
decided we will not consider your complaint further.

Thank you, in any case, for bringing your concerns to our attention. The Local Government Act
1974 requires the Ombudsman to tell the Council of the decision on your complaint and so I have
sent a copy of the statement to the Chief Executive.

We normally destroy our record of your complaint details 12 months after the date of our decision,
except for the decision letter and statement of reasons which we will destroy after five years.

Customer Satisfaction Survey


You may receive a further letter from the LGO in the coming weeks inviting you to complete a short
questionnaire telling us about your experience of the LGOs service. I hope that you choose to take
part in the survey and contribute your views to the research.

Yours sincerely

Chris Upjohn
Investigator, Assessment Team

PO Box 4771 www.lgo.org.uk


Coventry
CV4 0E1 0300 061 0614
20 April 2016

Complaint reference:
15 020 295

Complaint against:
North East Lincolnshire Council

The Ombudsmans final decision


Summary: The Ombudsman will not investigate this complaint that the
Council allocated council tax payments to the wrong account. The
courts are better placed to deal with this matter.

The complaint
1. The complainant, who I refer to here as Mr B, has complained the Council has
allocated council tax payments to the wrong account.

The Ombudsmans role and powers


2. The Ombudsman provides a free service, but must use public money carefully.
She may decide not to start or continue with an investigation if, for example, she
believes another body is better placed to deal with the matter. (Local Government Act
1974, section 24A(6))

How I considered this complaint


3. I have considered what Mr B said in his complaint. Mr B also commented on a
draft before I made this decision.

What I found
4. Mr B says he made payments to his council tax account for 2015/16 but the
Council allocated these to the account for an earlier year. He says the Council did
not follow the law when doing this.
5. Because the Council believed Mr B had not made the required payments for
2015/16, it applied to the magistrates court for a liability order.

Final decision
6. Mr B believes the Councils actions are wrong in law. The Ombudsman cannot
decide the law, only the courts can do that. Mr B could have put any arguments
about the Councils actions to the magistrates court which was better placed to
deal with this matter. For this reason, the Ombudsman will not investigate this
complaint.

Investigators decision on behalf of the Ombudsman