Local Government Ombudsman

PO Box 4771
Coventry
CV4 0EH

Grimsby
North East Lincolnshire

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.