North East Lincolnshire Council

Finance Department Grimsby

Civic Offices Knoll Street North East Lincolnshire
Cleethorpes DN32
North East Lincolnshire
DN35 8LN

19 August 2018
[Misdated 2016 on original]

Dear Sir/Madam

Re: Criminal negligence in the handling of Complaint (NELC/10117/1819)

This is a new complaint, not a continuation of the complaint referred to above. I will however be
expressing my dissatisfaction about the outcome of that matter and escalating it to stage 2 of the
council’s complaints process for review.

This complaint is about Mr Smith’s negligence, in the first instance, by passing all responsibility on
to the enforcement contractor to come up with its own excuses in answer to the issues raised.
Although this falls short of the minimum standards for enforcement agents1 it is not specifically
why I allege criminal negligence, rather it is because Mr Smith has simply accepted the dubious
responses on which he has based his decision to determine that the concerns were groundless and
not worthy of upholding.

It has also not gone unnoticed that a number of the salient points were not addressed by the
council’s contractor yet it is evident that Mr Smith did not challenge this failure. The Council
claims to have regard to the ‘Nolan Principles of Conduct Underpinning Public Life’ which are the
basis of the ethical standards expected of public office holders. However, there is no evidence in the
complaint response that these have been applied to challenge the disreputable behaviour, particular
the third of the seven principles (Objectivity)2.

Requirement to refer complaint to Monitoring Officer but was evidently not

The question of fraud has been raised in the complaint, so according to the council's corporate
feedback policy3, the matter should have been referred to the Monitoring Officer and dealt with in

1
The Ministry of Justice’s ‘Taking Control of Goods: National Standards April 2014’
2
Objectivity – Holders of public office must act and take decisions impartially, fairly and on merit, using the best
evidence and without discrimination or bias
3
Appendix B – Complaints dealt with through a different process
line with the Council's Policy for Raising a Concern (Incorporating the Whistleblowing Policy).
The policy specifies4 that the matter, depending on the nature of the concern, may be investigated
internally, referred to the Police or external Auditor etc. It is doubtful that the whistleblowing policy
was adhered to in any respect because the responsibility for handling the complaint was delegated
to the enforcement contractor.

Accepting what video footage revealed without verification

The complaint centred on the data protection aspect of leaving letters of a sensitive nature lying
around for others to see and whether charging £235 for an enforcement visit made with the view to
obtain payment was fraudulent in nature, if, as was evidently the case, making contact was
deliberately avoided.

The question of whether the £235 enforcement fee was correctly raised and lawful at the particular
stage of proceedings was never raised as an issue in the complaint, rather it was the dubious
circumstances surrounding the charging of it when evidently no contact was attempted.

Therefore only part of one of the four paragraphs in the complaint outcome under the heading
“Case Summary” was remotely relevant to the concerns raised in the complaint which is quoted
below:

“He made his first visit to the property on the 10th July 2018 at 06:20 but was unable to
make contact with anyone so our Agent left a letter requesting that Mr contact him
direct in order to make payment. As warned in our previous correspondence the
Enforcement Fee of £235.00 was correctly raised at this point.”

The outcome letter goes on to say with regards the video footage as follows:

“We can confirm that all our Enforcement Agents wear video badges and record all of their
visits from approaching the premises to returning to their vehicle and this is whether contact
is made or not. As such we have been able to watch the footage from Mr Menzies visit on
the 10th July 2018.

The video footage clearly shows that when Mr Menzies arrived at the property that he was
unable to gain access through the main door to the building and as such he posted a letter in
a sealed envelope through the slight gap in the doorframe.”

There is no evidence that Mr Smith asked for the video footage to verify the contractor’s version of
events. This is the minimum one would expect in the initial stages of an investigation given that the

4
Page 9 - How the Council will respond to a disclosure
concerns have been stated to be that I had been in all day on 10 July 2018 when the letter was left
but had not heard the buzzer incorporated into the intercom system located outside the building.

Mr Smith also accepted that the letter was posted through a slight gap in the doorframe without
even making enquiries to assess whether passing a letter successfully through the locked door is a
possibility (I attempted and was unable to).

The bailiff contractor claims to have video footage; this would fit the description of ‘best evidence’,
so it was Mr Smith’s duty as a priority to obtain it and independently verify what was captured (the
fairest and most objective way to proceed). It was exactly this (his inability to independently verify
events) which Mr Smith relied on to justify being unable to make a finding in respect of the second
part of the complaint (document revealing through envelope it was a court summons for non-
payment). It is clear evidence of bias to rely on uncorroborated evidence when it fits the council’s
agenda but to dismiss it if supports the complainant’s concerns.

The allegations are strengthened due to the fact that on a previous occasion Mr Smith dealt with one
of the stages of a complaint about a bailiff employed by Rossendale’s who had been unnecessarily
instructed to recover Council Tax. The formal complaint procedure uncovered fraud and other
illegality far exceeding what I first suspected. Rossendale’s actions, all but an illegal seizure of a
vehicle, were defended throughout the whole process which extended to the Chief Executive who
failed to uphold the complaint and was therefore also complicit.

One of the actions defended by Mr Smith was a notice, illegally threatening the removal of goods
and fraudulently demanding £294.50, being left by the bailiff which I found by chance on my way
home wedged outside the entrance to the apartment block of my residence in the slight gap between
the door and doorframe. I reside at the same property as I did then so the security entrance5 is the
same one which in the present matter the bailiff claims to have captured on camera the posting of
the letter through a slight gap in the doorframe. This was a clear breach of the Data Protection Act
1998 as the letter, which was of a sensitive nature containing personal data, could have been
intercepted by any member of the public or could easily have taken off in the breeze.

Mr Smith considered it acceptable (but probably not best practice) for the bailiff to leave the letter
in a way which breached Data Protection laws ‘given the problems with entering the building’.
However, of further concern was his explanation for how two previous letters delivered in person
had gone astray which incurred enforcement fees and I had never seen (his defence against alleged
phantom visits). His rationale was that ‘given the problems with entering the building it was
reasonable to state that if the first 2 Bailiffs left their correspondence the same way [wedged

5
The door has been replaced since the first reported case of mishandled personal data but my attempts both then and
now to pass a letter through slight gaps of the locked door were unsuccessful
outside] then the visits had taken place’. But there was a further anomaly because the officer who
had dealt with the same complaint at the previous stage included the following in her findings in
respect of one of the two alleged phantom visits:

“Further to your correspondence I can advise you that I have carried out further enquiries
with Rossendales into the circumstances surrounding your complaint and am in a position to
respond as follows:-

1) Visit on 15th December 2008, you state you received no notice and had no
knowledge of the bailiff's visit. From information provided I believe you live in a
block of flats, with a security door. The Bailiffs states when he received no reply to
the ringing of the door bell he left a note in an envelope addressed to you under the
security door....”

Acceptance that the regulations were adhered to

Mr Smith has evidently made no decision himself and simply taken what the enforcement
contractor has told him to be correct.

The enforcement contractor justified leaving the letter where it was easily accessible to members of
the public with the nature of his visit revealed through the envelope window on the basis that it was
in accordance with the ‘Taking Control of Goods Regulations 2013’. Regulation 8 of those
regulations sets out all the permissible methods for ‘giving notice’ and sub-paragraph (1)(d) of
regulation 8 provides that ‘where there is no letterbox, by affixing the notice at or in a place where
it is likely to come to the attention of the debtor’.

Mr Smith has evidently not questioned the fact that regulation 8 refers to the “Notice of
enforcement”; this was delivered by Royal Mail in accordance with sub-paragraph (1)(d) dated 22
May 2018. My complaint surrounds the hand delivered letter (threat of removal) which was left on
10 July 2018 and is the first Enforcement Stage visit in respect of which a fee of £235.00 is raised.

But even if regulation 8 was referable to hand delivered Enforcement Stage notices, sub-paragraph
(1)(d) provides for ‘where there is no letterbox’. I have a letter box, but putting that to one side as
well, if leaving the notice in a communal place would almost guarantee to disclose the purpose of
their visit to neighbours and anyone who visited the building, then the Ministry of Justice’s
guidance which sets out the minimum standards for enforcement agents was not adhered to. The
council was alerted to para 52 of the National Standards in my complaint which is as follows:

“Enforcement agents should, so far as it is practical, avoid disclosing the purpose of their
visit to anyone other than the debtor or a third party nominated by the debtor, for example an
 advice agency representative. Where the debtor is not seen, the relevant documents must be
left at the address in a sealed envelope addressed to the debtor”

It is not good enough to claim that the serving of a notice complied with data protection laws just
because it was left in accordance with one of the methods described under sub-paragraph (1) of
regulation 8. The overarching consideration has to be whether the chosen method would meet the
minimum standards set out in paragraph 52 of the government guidance and because of where the
letter was found and it was obvious without opening it that it concerned enforcement the action fell
short of the minimum standards for enforcement agents.

It has been noted the difference between the envelope type used when a letter is sent by the
enforcement contractor via Royal Mail, and the notice delivered in person, which has a bearing on
the provision of regulation 8 (method of giving notice). The “Notice of enforcement” to which
regulation 8 specifically refers was delivered by Royal Mail date 22 May 2018 and was in a
window-less envelope and gave no clue as to the nature of the letter. However, the hand delivered
notice threatening removal of goods was windowed through which my name, address, flat number
and in red bold capitals the warning, “URGENT - DO NOT IGNORE” were all visible. This
provides insight into why a letter revealing the nature of the visit can not be left in a place where it
can be seen by any other person, or be permissible to do so by virtue of regulation 8 of the Taking
Control of Goods Regulations 2013.

Summons of 15 September 2015

Mr Smith also handled the second part of my complaint negligently concerning the court summons
I received in September 2015 for alleged non-payment of Council Tax. The unpaid amount wrongly
granted on the court order relating to the September 2015 summons is the alleged debt which the
enforcement agent is presently pursuing and therefore logically belongs the same complaint.

The concern was that the nature of the council’s business was obvious by the way the summons had
been positioned in the envelope, i.e., enough of the heading "SUMMONS FOR NON-PAYMENT
OF COUNCIL TAX" was visible through the envelope window.

Mr Smith has demonstrated inconsistency, a strong degree of bias and a lack of objectivity in his
approach to dealing with the matter. He supports his inability to make a finding based on being
unable to independently verify that the summons arrived as the scan I provided to him shows. His
approach is at odds with the way he accepted the enforcement contractor’s account of what was
captured by the agent’s bodycam without obtaining and independently verifying it for himself.
Leaving aside the bias, it was open to Mr Smith to make further enquiries and ask if it was possible
I provide further proof to strengthen my claim that the summons arrived as I allege. I have retained
the original summons and it is obvious from the single fold that the document had not been
manipulated to falsely position the text. Although I don’t have the original envelope it can be
clearly seen from placing it in an envelope recently sent by the council (same size and type) that the
text visible through the envelope is true to the scan.

The number of summonses sent each year typically approaches 20,000 so it is likely that the
enveloping of the summons is automated to some degree and would therefore not likely to have
been just my letter that revealed through the envelope that it was a court summons. Of course, if the
process is manual then it would have been equally significant if it was a deliberate and vindictive
act to make it known to others that I was being summonsed to the court for non-payment of Council
Tax and made more serious due to the fact that my Council Tax payments had been up to date with
no outstanding monies owed.

Past negligence in addressing the mishandling of my Council Tax account

Mr Smith has neglected to resolve the issues which have led to initially Rossendales and now
Jacobs enforcement contractors harassing me for monies which are not owed on the several
occasions he has been presented the opportunity to do so. For the avoidance of doubt, the money
which the enforcement agents have been and are presently pursuing is not legitimately owed and I
have evidence of the council engineering the debt. The Magistrates’ court’s decision to grant a
liability order was so irrational that no fair minded and informed observer, having considered the
facts, could have come to any other conclusion that the judge was biased. There were three main
defence grounds and each was perversely dismissed by the District Judge.

For example, the judge relied on case law “Devaynes v Noble (1816) 35 ER 781” (Clayton’s case)
to decide in the council’s favour that it was permissible to allocate money I paid in respect of my in-
year Council Tax account to a disputed sum from a previous year’s account, thus subjecting me to
unnecessary recovery action and additional costs etc. The relevant two paragraphs in the council’s
witness statement are numbered 58 & 59 as below:

“58. The case of Devaynes V Noble 1816 merivale 529 (Claytons Case), it established the
basic rule of ‘first-in, first-out’. In further terms payments are presumed to be
appropriated to debts in the order which the debts are incurred. If no election is made
the earliest debts are paid first (NELC7).

59. It is the first item on the debit side of the account, that is discharged, or reduced, by the
first item on the credit side. Devaynes V Noble 1816 merivale 529 *608”
It is scandalous that this case was relied on as it has no relevance to Council Tax. Clayton’s case
involved a banking account, where all the sums paid in form one blended fund; but in the case of
Council Tax liability, the local authority issue a bill each year relating specifically to that year’s
liability, hence they are distinct accounts between which a plain line of separation can be drawn.
The irrelevance of Clayton’s case to Council Tax is evident in the judgments of a number of cases
but is conveniently defined in the 25 edition of ‘Snell’s Principles of Equity’:

‘(c) Rule in Clayton's Case

(1) THE RULE. When there has been no express appropriation, the rule of convenience
known as the rule in Clayton’s Case is sometimes applied. This is confined to cases where
there is an unbroken account between the parties, or “one blended fund,” as in the case of a
current account at a bank or between traders; it does not apply where there is no such
account or fund, but merely distinct and separate debts. The effect of the rule is that in the
absence of any express appropriation, each payment is impliedly appropriated to the earliest
debt that is not statute-barred. “It is the first item of the debit side of the account, that is
discharged, or reduced, by the first item on the credit side. The appropriation is made by the
very act of setting the two items against each other.” In short, “first in, first out the first
payment in is set against the first payment out, and vice versa.’

It is evident from all case authority relevant to the appropriation of payments that when a person is
indebted to another on more than one account it is the debtor’s right to choose which account
monies paid is allocated to and the election may either be expressed or inferred from the
circumstances of the transaction. Therefore, the inference from the circumstances of a transaction
can be just as valid as an election by the debtor to pay specifically on one of several accounts as if
his election were expressed.

It is therefore self-evident that in the case of Council Tax liability (where one account is more
onerous for the debtor than another) that a payment amount which does not identify the debt must
be carried to that account which it is most beneficial to the debtor to reduce. It follows that a debtor
who would be caused the additional burden from recovery action being taken in respect of his in-
year liability as a consequence of payment being appropriated to his arrears, would clearly intend
that his payment be appropriated to his in-year liability to avoid unnecessary additional costs etc.
Evidence of an intent to appropriate would be provided in those particular circumstances to be an
election to pay specifically on the current year’s liability.

Also, if a pattern had emerged of a customer’s payment being made and accepted as credited to a
particular debt then it would be inferred from the nature of the transaction, even if not expressed at
the time by the customer, that he intended to ascribe it to that account.
In what appears to be the most recent and most relevant case, R v Miskin Lower Justices 1953, the
judgment is clear that where an amount obviously relates to a specific liability, it would be an
unwarranted assumption to allocate the payment elsewhere thus an unmatched payment must be
carried to that account which is most beneficial to the debtor to reduce.

This is helpfully set out in the judgment of Caltabiano v Electoral Commission of Qld [2009] QCA
182 (paragraph 110):

‘Similar statements may be found in other cases.51 In R v Miskin Lower; Ex parte Young,52
(which was a case in which there was no express appropriation) Pearson J inferred an
appropriation from circumstances which included that the debtor “would be likely to wish
these payments to be utilized in discharge of the original debt so that he would secure his
release from the committal order”.’

The inference that the debtor would likely have wished his payments to be utilized in discharge of
the original debt was evidently because it was the debt which it was most beneficial to him to
reduce6. It was merely his circumstances that meant discharging the earliest debt was most
beneficial to him; if those circumstances meant that discharging the later debt was most beneficial,
then by the same reasoning the judge would have inferred an appropriation on the basis that the
debtor would have likely wished his payments to have discharged the more recent debt. In other
words, the rule in Clayton’s Case was inconsequential and could not have applied anyway because
as in Council Tax liability the rule does not apply where there is no unbroken account (or blended
fund), but merely distinct and separate debts.

Leaving to one side what the law says about the appropriation of payments. The overwhelming
majority of local authorities have effectively stated on the record that they see it as their duty
(where a customer has arrears from a previous year) to allocate payment to the account which it is
most beneficial to the debtor to reduce and have measures in place to ensure that payments are
allocated to the account which by virtue of that allocation causes the least burden for the debtor.

Some have their systems set so that payments which do not identify the debt are automatically
allocated to the in-year liability and those that don’t carry out checks to ensure that such payments
are reallocated if necessary to the account which it is most beneficial to the debtor to reduce. The
following is a sample of quotes from a small selection of those councils mentioned that comply
with the general principles of the appropriation of payment:

6
There is a reference to two cases (Ephraims v. Jansz and Schokman v. Felsinger) in the judgment of Fernando v.
Fernando (Sri Lankan case around the time of Miskin) ‘in which it was held that where the purpose for which a
payment is made is unspecified “it must be carried to that account which it is most beneficial to the debtor to reduce”.’
 ‘Where a sum is not recognised as a “normal” instalment the system is set to allocate that
payment to current year. The reason for this is to prevent recovery action on the Council Tax
payer’s current year’s debt. By allocating payments to the current year’s debt, and thus
preventing further chargers being applied to the account, the Council is acting in a fiduciary
capacity.’ Croydon Borough Council

“There are procedures in place to check payments credited to previous years arrears. This
involves regular manual checks of payments allocated against previous years, and where it is
clear the payment relates to the current year, the payment is transferred accordingly. A
manual check is also made of Council Tax accounts prior to a summons being issued (and
associated costs being raised), in order to ensure that, where possible, payments which have
made, have been correctly allocated.” Central Bedfordshire Council

“If a payment is received that does not match any instalment value, it will allocate the
payment to the current year. Unspecified current year payments are regularly reviewed
following the automatic allocation to assign payment made for previous years arrangement
to the corresponding year as required.” Bournemouth Borough Council

“if we believe the customers intention was to pay the current year, we would move this to
the current year in order to avoid unnecessary recovery action.” Solihull Metropolitan
Borough Council

“in the case of unallocated payments there are procedures in place to seek to identify
whether a payment should be credited to the current year or previous year liability, in order
to seek to mitigate the risk of the customer of incurring unnecessary recovery action in
respect of the current financial year.” Torbay Borough Council

“If in the course of dealing with a Council Tax account (be that by Revenue staff looking at
the account, or due to customer contact regarding it) payments were identified as allocated
to an incorrect year, then the payments would be re-allocated to the relevant year. Should
the allocation to the oldest debt have caused a summons to be issued, this would be
withdrawn and any associated costs removed.” South Hams District Council

“The Council has procedures in place to check each case that has been raised for summons
action prior to service. The accounts are checked to see if the summons to be issued, are
done so correctly. Specifically officers are asked to look for payments made in the current
financial year and to check the allocation of these payments. This is to prevent any undue
summons and costs being raised as well as to ensure that payments are being allocated to the
correct debt, with an emphasis on the current year's liability.” Hillingdon Borough Council

Returning to Mr Smiths refusal to resolve the matter, it was clearly negligent, and criminally so
given all the serious consequences that not dealing with it has had over the protracted period of
time. He and other officers have played the system by using the court as its excuse for refusing to
deal with formal complaints to have the injustice remedied. Within those complaints the council has
been asked to apply under the legislation that has been specifically enacted giving Magistrates’
Courts powers to quash a liability order if it was satisfied that one should not have been made, i.e.,
where there is no dispute about the facts. For example, Mr Smith stated the following in a letter
dated 21 December 2015 responding to a complaint:

“your complaint does not fall within the scope of the Councils Corporate Complaints
procedure as the Liability Order was granted by the Grimsby Magistrates Court at a hearing
that you were present at”

This is outrageous given that the Council Tax (Administration and Enforcement) Regulations 1992
have the following provision at regulation 36A (Quashing of liability orders):

“(1) Where—

(a) a magistrates' court has made a liability order pursuant to regulation 34(6), and

(b) the authority on whose application the liability order was made considers that the order
should not have been made, the authority may apply to a magistrates’ court to have the
liability order quashed.”

Subsequent to the court order being granted, Mr Smith and his colleagues have been provided more
evidence as it has become available which proves incontrovertibly that the order should not have
been made yet presumably for their own perverse satisfaction they have continued to exploit the
court’s decision to criminally pursue an engineered debt.

The most serious of my three main appeal grounds concerned the council’s additional justification
for misallocating payments to the aforementioned disputed sum from a previous year’s account to
engineer the debt. The council presented perjured evidence to the court to persuade the judge that it
was entitled to allocate payment to the disputed costs (leaving the balance of the year’s account that
should have been reduced in default). The Council had suspended recovery of the sum being
appealed in the high court until the case had been determined, however, it falsely claimed in its
signed statement of truth that it believed the appeal had been withdrawn therefore the disputed costs
were no longer suspended. The appeal had never been withdrawn and it is beyond all reasonable
doubt that the council knew it had not been withdrawn from incriminating evidence accompanying
its witness statement.

If that evidence was not enough, it was discovered subsequent to the Council Tax liability hearing
that 10 items of post relating to the high court application allegedly sent to me by the Justices’ Clerk
for the Humber and South Yorkshire. None of the letters were delivered, though copies dating back
to August 2013 have since been obtained which backs up conclusively that the appeal was never
withdrawn. The council are in position of all the evidence in this mater.
It is reasonable to say that Mr Smith’s motivation for refusing to deal with the complaint is that if it
were properly investigated the seriousness of the council’s actions would have to be officially
acknowledged and remedied. The easy way out has been to hide behind the decision of the
Magistrates’ court regardless of the fact that Mr Smith and his colleagues know full well the order
should not have been made.

Yours sincerely