Local Government Ombudsman

Po Box 4771 Grimsby

Coventry North East Lincolnshire
West Midlands DN32
CV4 0EH

4 September 2017

Dear Mr Draper,

In the matter of a proposed application for judicial review between The Queen (on the
application of ) and LOCAL GOVERNMENT OMBUDSMAN

Please find for your attention in the format recommended by the pre-action protocol for judicial
review, a letter before claim.

It is my preference that this matter be resolved without recourse to the courts if at all possible,
however, should it be necessary to issue proceedings, such proceedings will need to be dealt with
on an expedited basis given that a claim for judicial review must be filed promptly and in any
event not later than 3 months after the date of the decision being challenged.

I look forward to receiving a response in due course and, in any event, by no later than Monday,
18 September 2017. I take the date of decision being challenged to be 7 August 2017 (the
Ombudsmans review letter) and therefore consider that the statutory time limit within which I
must bring a claim is no later than 7 November 2017.

Yours Sincerely
IN THE MATTER OF A PROPOSED APPLICATION FOR
JUDICIAL REVIEW IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION ADMINISTRATIVE COURT

BETWEEN:

THE QUEEN
(on the application of
Proposed Claimant

-and-

LOCAL GOVERNMENT OMBUDSMAN

Proposed Defendant

JUDICIAL REVIEW PRE-ACTION PROTOCOL

LETTER BEFORE CLAIM

Information required in a letter before claim

I. Proposed claim for judicial review

To
The Local Government Ombudsman, Po Box 4771, Coventry, West Midlands, CV4 0EH.

II. The Claimant

of , Grimsby, North East Lincolnshire, DN32 .

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III. Defendants reference details

17 003 081

IV. Details of the legal advisers, if any, dealing with this claim

None.

V. Details of the matter being challenged

Local Government Ombudsmans decision to not investigate the proposed claimants concerns
on the grounds of there being insufficient evidence of fault by the Council complained about.

Irrelevant factors had been taken into account in arriving at the decision (background information
etc.) whilst relevant factors were not considered.

The complaint in brief

The complaint concerned the councils point-blank refusal to consider new evidence
proving beyond all doubt that a Council Tax liability order obtained in 2015 had been
applied for on erroneous grounds (objective - for the council to apply to the court to quash
the order).

The Ombudsmans considerations in brief

Previous complaints, a high court application challenging costs from a liability order from
2012, the costs incurred then and the laws surrounding appropriation of payments
(background information etc.) were considered to justify not starting an investigation
because the issues were outside the organisation's jurisdiction and there being insufficient
evidence of fault by the Council.

VI. Details of any interested parties

None proposed. However, it is envisaged that a potentially significant number of people would
benefit from the issue being reviewed. Namely, those who would in similar circumstances to the
proposed claimant be affected by jurisdiction powers being exercised to their detriment.

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VII. The issue

Background

1. The Council suspended recovery of costs from a liability order obtained in 2012 (which were
being appealed in the high court) until the case had been determined.

2. The proposed claimant faced impossible obstruction from HMCTS protracting over several
years which prevented the appeal progressing.

3. In 2015 the council wrongly allocated monies to the disputed sum, leaving the balance of the
years account that should have been reduced by the payment in default.

4. The council applied for, and obtained a Council Tax liability order on the premise that the
proposed claimant had withdrawn the appeal (the appeal was being pursued and had not
been withdrawn).

5. The council subsequently appointed its bailiff contractor to enforce the liability order adding
several hundred pounds more in fees to the costs it had been awarded by the court on
account of the order it had erroneously applied for.

6. The proposed claimant engaged the council in correspondence about its mistaken belief that
the appeal had been withdrawn in a formal complaint in December 2015. The matter was
escalated to the Ombudsman in a complaint submitted on 21 March 2016.

7. In August 2016 the proposed claimant submitted a complaint to the Ombudsman with
detailed supporting evidence of the gross injustice the councils fault (and refusal to remedy
it) had caused. Bailiff letters were included in the document which had been compiled
chronologically recording evidence of the lengths that the proposed claimant had gone to
have the matter resolved.

8. Further evidence was forwarded to the council on 5 January 2017 on discovering copies of
correspondence that had been produced by HMCTS that had never been delivered dating
back to December 2013 which reinforced evidence that the appeal had not been withdrawn.

9. A subsequent email to the council of 12 January set out the formal complaint relating to the
present Ombudsman matter which the council refused to investigate. Attached was a

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 document containing a number of relevant correspondence arranged chronologically
spanning the period of the undelivered letters (since obtained) and positioned in context.

10. The information, along with that already held by the council was sufficient to satisfy the
magistrates' court that the liability order should not have been made and reasonable that the
council apply to have the order quashed.

Complaint to the Ombudsman

11. It was explicitly stated that the matter of the complaint did not involve the high court
application. Details had been provided merely to put the issues into context. The matter
primarily concerned the council refusing to deal with the complaint as doing so would have
inevitably led to the uncovering of maladministration which it did not want to be
accountable for.

12. The high court appeal was irrelevant and in any event there had been no representations
suggesting that the Ombudsman need consider the merits of the case or that the proposed
claimants objective was for the disputed costs from 2012 to be quashed. Rather, the
objective was for the liability order obtained in 2015 to be quashed and the additional costs
incurred as a consequence of that enforcement process which was pursued on the erroneous
grounds that the council believed that the sum was no longer disputed because the appeal
had been withdrawn.

13. The complaint first and foremost focussed on the council refusing to take the appropriate
steps in remedying its error which it had undeniably made. This was the fault in question
above any about how the error came about. It was immaterial to the complaint whether
dishonesty had been involved or that there may have been a genuine misunderstanding by
the council. Presently the council and the Ombudsman have indisputable evidence that the
appeal had not been withdrawn. The council understood it to have been withdrawn at the
time which was the cause for it applying for and obtaining the liability order in 2015 and
imposing the additional costs. Clearly the merits of the 2012 case needed no consideration
because none of the issues where being contended. All that mattered was the fact that the
disputed court costs from 2012 were suspended by the council until the outcome of the
proceedings and the council lifted that suspension in error because it mistakenly believed
that the case had been withdrawn.

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14. The provision enabling magistrates' courts the power to quash liability orders where there is
no dispute about the facts has been purposely enacted for these circumstances. However, the
Council must make the application, and for refusing to even consider doing so was at fault.

15. The complaint also had no relevance to the way the council allocates payments where there
are outstanding balances relating to more than one years account. It was immaterial to the
complaint what determination the Magistrates court made about this aspect in 2015 and
therefore not a consideration that the Ombudsman cannot question a court decision (it did
not require questioning). The Ombudsman, on the other hand, may remedy distress caused
by receiving a wrongly issued summons1 which was clearly what had happened as a
consequence of the council misallocating payment to the sum it had suspended.

16. The council was at fault in managing the council tax account which led it to wrongly issue
the summons, imposing additional court costs, instructing its bailiff contractor, etc. etc.
However, for the purposes of this complaint specifically, the council was at fault for refusing
to deal with and acknowledge the further evidence obtained by HMCTS which provided
definitive proof that the appeal had never been withdrawn and therefore the councils reason
for causing the injustice, which was that it believed the appeal had been withdrawn was
false.

The decision notice

17. It is apparent from the Ombudsmans decision that a contributing factor for determining that
the law prevents it to from investigating is because it has taken into account irrelevant
factors. Paragraph 4 sets out that previous complaints were unnecessarily considered. The
Ombudsman made a decision, then, not to investigate on the basis that the proposed claimant
had commenced proceedings before a court of law. It was unfair to consider those issues
because the present complaint was submitted as a consequence of having obtained new
evidence from an independent source. The matter clearly concerned the council refusing to
consider the evidence and was the fault complained about. There was no question of the
matter involving a judicial decision, it was purely and simply a proved fact that the council
failed to manage the council tax account. Paragraph 6 of the decision and much of what
follows it has no relevance to my present complaint as it deals with how payments are
allocated (see para 20 below).

1
Paragraph 34 of decision ref: 16 014 507 (City of York Council)

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18. In reference to the Ombudsmans decision, paragraph 11, there was no requirement for him
to consider matters linked to the 60 from 2012 which were pending a judicial decision (see
paras 2930 & 3334 below). What mattered (which was a fact) was that the costs were
suspended pending the outcome. The fact that there has been no judicial decision is
irrelevant as is the statement made by the Ombudsman that he has not seen any document
which states the proposed claimant is not liable to pay the 2012 costs (see para 30 below).

19. The Ombudsman states in paragraph 12 of the decision notice that he will not investigate the
Councils decision not to ask the court to quash the 2015 liability order because there is
insufficient evidence of fault by the Council. This decision is irrational given that the
evidence of fault is indisputable. The Ombudsman goes on to give reasons for this decision,
the basis of which is clearly because the court was satisfied that the arrears were due after
considering the points raised by the proposed claimant which included consideration of how
payments are allocated and why the Council lifted the hold on recovery.

20. The reason for its decision was therefore not because there was insufficient evidence of fault
by the council but because there was deemed to be a legislative bar, i.e., that the
Ombudsman cannot question a court decision. The courts decision was not being
questioned and in any event the points raised by the proposed claimant with regard to
payment allocation were rendered entirely irrelevant because of the overriding issue being
that the only account that the council was entitled to post monies to was the years account
that was current when payments were made.

21. The other element that might have been considered questioning the courts decision, but for
the fact it was the councils decision, was whether or not the appeal had been withdrawn.
Clearly this is a proven fact not a matter over which a judicial decision could credibly be
made to the contrary (it had not been withdrawn). Though it should not even need
considering, as the decision in question is the councils, the court was (as was the proposed
claimant) not in possession of the various items of correspondence when the case was heard
in 2015 which provides indisputable evidence from an independent source. Copies of the
relevant correspondence were obtained from HMCTS Customer Service Unit but not until 3
January 2017. This was considered new evidence that the council could not credibly ignore
and would therefore be duty-bound to request the court quash the liability order.

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22. The 6 April 2017 letter from HMCTS Investigations Team was included in the 20 May
2017 complaint to the Ombudsman to further support evidence that it could not conceivably
have been claimed that the appeal had been withdrawn. The outcome letter had no more
relevance to the complaint than that. It was therefore irrelevant for it to have been stated by
the Ombudsman in paragraph 12 of the decision that the recent decision from the court
service does not affect the issue of liability in 2015. The liability in 2015 is not the issue,
what is relevant is the fact that monies had been allocated wrongly to a sum which had been
suspended until the outcome of the proceedings. The council applied for, and obtained a
Council Tax liability order on the premise that the proposed claimant had withdrawn the
appeal which he had not and the outcome letter is the definitive proof.

Complaint issues misunderstood

23. Statements in paragraph 13 of the decision are so irrational to even suggest that the issues of
most relevance have been misunderstood. It is evident from what is stated that the
Ombudsman has not realised what had been the cause for the proposed claimant to have
been summonsed for payment of 424; this is reinforced in the Ombudsmans subsequent
comment, regarding the dispute about the 60 costs not covering the full amount of the
arrears. The amount becoming due of 424 in 2015 was caused by the statutory instalments
scheme (option for paying monthly) being withdrawn. This was the sum deemed by the
council to be the outstanding liability for the year and the sum which it demanded
immediately attributable to the failure of the council to manage the council tax account.

24. The proposed claimant was lawfully entitled to continue paying monthly on account of his
obligation being met to make payments on time and in sufficient amount. He was only
deemed not to be entitled (and summonsed for the lump sum) because the council had
erroneously withdrawn the option for paying monthly. Clearly this aspect and consequently
the 60 costs not covering the arrears were entirely irrelevant but were considered by the
Ombudsman in determining that there was no suggestion of fault in the Councils decision
not to apply to quash the liability order or cancel the costs. Because these were factors taken
into account in arriving at the decision not to investigate they clearly contributed to the
Ombudsmans decision overall being unlawful.

25. Assertions in paragraph 14 of the decision are so unreasonable as to be perverse regarding

the council not investigating the complaint about its decision not to request the court quash
the order on the basis that it considered the matter settled in court in 2015. The Ombudsman

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 says he will not investigate this decision because he has not seen any evidence that questions
why the council served a summons in 2015 or suggests that matters were not concluded then.
For the avoidance of doubt, the entire focus of the complaint centred on evidence
questioning why the council served a summons in 2015 and by the Ombudsmans own
admission he has also considered previous complaints that have set out how the council was
at fault in managing the council tax account which led it to wrongly issue the summons. The
Ombudsmans assertion also has no basis that he has not seen any evidence that suggests
that matters were not concluded in 2015 (paragraphs 6-8 above). The provision therefore has
clearly been used for an improper purpose (paragraph 26 below).

Legal Framework

Local Government Act 1974, section 24A(6), as amended

26. The Ombudsman relies on section 24A(6) of the Local Government Act 1974 to justify his
decision against starting an investigation because he believes it is unlikely he would find
fault (see above paragraph 24).

Local Government Act 1974, section 26(6), as amended

27. Confusion arises in the decision notice regarding the Ombudsmans reference to Local
Government Act 1974, section 26(6). Paragraph 3 of the decision notice refers to this
provision apparently incorrectly as it is cited in the context of the Ombudsman being unable
to investigate a complaint if someone has appealed to a tribunal or a government minister or
started court action about the matter. This anomaly appeared in the Ombudsmans draft and
was reiterated in the final decision notice despite the proposed claimant referring to the
correct provision (presumably) in his submission, Comments on the draft.

28. Section 26(6) refers to the Ombudsman being unable investigate a complaint if the person
affected has or had a right of appeal to a tribunal or a government minister, or, has or had a
remedy by way of proceedings in any court of law. The emphasis being on having had a
right or remedy rather than the person affected having exercised the right or remedy. As
mentioned in the comments on the draft it is Schedule 5 to the Local Government Act 1974
that details the matters which are not subject to investigation and include at paragraph 1 the
commencement of civil or criminal proceedings before any court of law.

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29. It is a reasonable assumption, from the context of the decision that the legislative bar,
regardless of the reference to Section 26(6) has been cited in respect of the commencement
of proceedings in the high court in 2012 and presumably would be properly referable to
Schedule 5. This has to be assumed is the reason why in paragraph 11 of the decision the
Ombudsman has stated he cannot investigate any matter linked to the 60 costs from 2012
because the proposed claimant started legal action. Unlike Section 26(6) which provides a
clause allowing the Ombudsman discretion where such a right or remedy exists (to proceed
in court for example) if satisfied that it is not reasonable to expect the person affected to
have resorted to it, there is no apparent clause in relation to having actually commenced
court action.

30. However, this is all academic. Paragraph 11 is irrelevant to the complaint because the
proposed claimant has no requirement for any matter linked to the 60 costs from 2012 to be
investigated nor has he asked the Ombudsman to do so (see note below). Also it is not a
question of whether the Ombudsman has seen any document which states whether or not the
proposed claimant is liable to pay the 2012 costs. The question is whether the Ombudsman
and the council have seen documents that support the proposed claimants version (as
opposed the councils) that he had not withdrawn the appeal. It was on the basis that the
appeal had been withdrawn that the council lifted the suspension of the cost. It is therefore
not seen how either the Ombudsman or the council could be satisfied of there being no clear
and direct link between the fault identified and the injustice suffered.

Note: The costs and the question of their suspension cannot reasonably be considered a
matter linked to the commencement of proceedings in court for the purposes of being unable
to investigate (para 33 below). The suspension forms no part of the appeal which the court
would be required to make a judicial decision about. The lifting of the suspension therefore
can only be part of the process leading up to the councils decision to commence
proceedings for which the Ombudsman has jurisdiction (page 57 of the Ombudsmans
Guidance on Jurisdiction, February 2017 update).

31. On the other hand, in respect of the Council Tax liability hearing in 2015, the Ombudsman
could have considered the proposed claimant having a remedy by way of proceedings in a
court of law, which would be properly referable to section 26(6)(c) of the Local Government
Act 1974. However, there is no specific reference in the decision linking the provision to the
potential remedy in respect of the 2015 court hearing. It is implied though, in paragraph 14
of the decision that the Ombudsman had considered section 26(6)(c), but in doing so

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 exercised his discretion unreasonably or unlawfully owing to his assertion that the proposed
claimant could have taken legal action.

32. In arriving at this decision the Ombudsman failed to take into account relevant factors which
the proposed claimant had included in supporting papers submitted with his 27 May 2017
complaint and which were also explicitly set out in his comments on the draft decision. The
complaint to the council dated 12 January 2017 contained in the supporting papers expressed
that the proposed claimants understanding was that a defendant may only appeal a Council
Tax liability order to the high court either by way of a case stated or judicial review.
Attention was also brought to the difficulty an ordinary person would face with the process
and the unlikeliness of ever succeeding in having the case brought before the court. Also it
was stated that there was no dispute about the facts in the case which was the criterion set
out in the explanatory notes to the Local Government Act 2003 for when it was appropriate
for a local authority to apply to the court to have the liability order quashed (cost involved in
an appeal is unwarranted). Representations were reiterated along these lines in the comments
on the draft decision but with additional emphasis on the difficulty the proposed claimant
faced personally with the Court over 4 years attempting to appeal a Council Tax liability
order by way of a case stated to the high court. The outcome letter from HMCTS
Investigations Team which supported the complaint recorded all the difficulties spanning the
protracted period therefore it is irrational that the Ombudsman would have expected it
reasonable that a similar course of action was embarked upon. Guidance on jurisdiction (see
following) on page 48, states; that the question to be asked in every case is, is it reasonable
to expect this complainant in the circumstances of this case to use the alternative right or
remedy?

Local Government Ombudsmans Guidance on jurisdiction

33. Page 46 of the Guidance (Feb 2017 update) stipulates that an investigator would be required
to identify aspects of a complaint which are separable from appeal matters, and those that
can, be will be within jurisdiction even when a complainant has resorted to court
proceedings (pages 56 & 57).

34. It is within the councils remit; or rather it is the councils duty to review its actions on been
presented evidence proving that it had wrongly managed an account which led to the
affected persons injustice, even if the matter had gone to court. If the evidence in question
was not available for the courts consideration then the Ombudsman would be in no danger of

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 deciding matters which have already been adjudicated on by the judge. In any event, the
present complaint centres on questioning the councils refusal to deal with new evidence and
ultimately its refusal to request the court quash the order. If the Ombudsman deemed it
appropriate that the council accept it had applied to the court in error and required that it
present the new evidence to the court, a judicial decision would be made on different
grounds from when it was heard in 2015. Alternatively, the Ombudsman would have no
jurisdiction barriers preventing him making recommendations to the council to put the
proposed claimant back (and council tax account) in the position they were in before the
fault occurred, without making a formal application to the court.

The review

35. The review letter of 7 August 2017 is consistent with the Ombudsmans draft and final
notices, i.e., demonstrating that the complaint issues have, or were seen to have been
misunderstood. For example, the interpretation of the new argument misses the point by
confusing it to be about the Council being at fault for not seeking to quash the 2015 liability
order because the court service upheld the proposed claimants complaint about the service
he received from the courts in 2012/13. To be clear, the injustice protracted over several
years but more importantly the new argument was irrelevant to the complaint being upheld.
The outcome letter from the court service, along with copies of letters obtained which had
never been delivered, were provided for reasons no other than evidence that the appeal had
never been withdrawn (see para 16 above).

36. The review letter states that the arguments about the court proceedings and the Councils
references to them are not directly relevant to the Ombudsmans consideration of the
complaint, but has not, as fairness demands, specified which arguments are not relevant. An
educated guess would be that the arguments referred to that were not deemed relevant were
those relating to the evidence proving that the council knew that the appeal had never been
withdrawn. In that case, this particular decision would be considered unlawful for failing to
take account of relevant factors which for the avoidance of doubt are in jurisdiction as the
investigator would be required to identify aspects of a complaint which are separable from
appeal matters (see para 33 and Note to para 30 above).

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37. It next states in the review letter that the court service complaint response makes it clear it
has not dealt (and could not deal) with any judicial decisions and is an irrelevant factor
taken into account in arriving at the decision. The proposed claimant no more expected the
court services Investigations Team to have dealt with any judicial decisions than he expects
the Ombudsman to. It is also irrelevant to the complaint whether the appeal against the 2012
costs of 60 succeeded, however, because it had even been stated in the review letter
suggests or even confirms that the complaint has improperly been considered.

Grounds of Challenge

38. In the legal context of the Ombudsmans jurisdiction powers under part III of the Local
Government Act 1974, the Ombudsmans decision is unlawful on the following grounds:

(i) the procedure followed was unfair and biased.

(ii) it has failed to consider relevant factors but taken into account factors that are
irrelevant.

(iii) it has failed to provide any rational justification for its decision.

The Ombudsmans decision is patently flawed and based upon wholly inadequate reasoning
and made lacking an appropriate degree of care and scrutiny. For the Ombudsman to have
arrived at a decision that there is insufficient evidence of fault by the Council with the
evidence it held is so outrageous in its defiance of logic or accepted moral standards that
no sensible person who had applied his mind to the question to be decided could have
arrived at it.

Conclusion

39. It is within the Ombudsmans jurisdiction to investigate aspects of a complaint which are
separable from appeal matters, even when a complainant has resorted to court proceedings.
The councils suspension and the lifting of the suspension of the costs is an aspect separable
from the appeal.

40. The Ombudsman has jurisdiction to investigate the process leading up to the councils
decision to commence proceedings.

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41. Discretion must be exercised by the Ombudsman carefully, taking account of all the
circumstances and ask is it reasonable to expect the complainant to have used the alternative
remedy.

42. There is no reason why the Ombudsman should not be satisfied that there is a clear and
direct link between the fault identified and the injustice suffered and therefore recommend
that the council put the proposed claimant back (and council tax account) in the position they
were in before the fault occurred.

VIII. Details of the action that the defendant is expected to take

The Claimant invites the Ombudsman to:

(a) withdraw its decision of the 30 June 2017 (and 7 August 2017), and

(b) consider all relevant evidence and investigate the complaint

IX. Alternative Dispute Resolution (ADR) proposals

The proposed claimant has considered the suggested options in the pre-action protocol for
judicial review for resolving disputes without litigation which may be appropriate. The only
suggestion which would potentially be appropriate is the option for Discussion and negotiation
(which is proposed). However, there is no realistic expectation that the proposed defendant will
consider this for ADR because the review decision letter of 17 August 2017 states that the
decision is final and the only way to challenge the decision further is by seeking a judicial
review in the High Court.

X. Details of any information sought

None.

XI. Details of any documents that are considered relevant and necessary

None.

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XII. Address for reply and service of court documents

As on this letter head.

XIII. Proposed reply date

The proposed claimant asks that you provide a substantive reply to this letter within the standard
14 day protocol period, that is by Monday 18 September 2017.

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