Where a English Local Authority (Billing Authority/Council) has: (a) a council tax liability order ('CTLO'); and/or (b) a national non-domestic rates (business rates) liability order ('BRLO'), against an alleged taxpayer/ratepayer, does the Billing Authority have an absolute discretion whether or not to enforce the CTLO/BRLO in all situations, or is there an obligation upon a Billing Authority, to reflect, when making a decision whether to enforce the CTLO/BRLO (or not)? In particular, because: (a) the CTLO/BRLO is an 'historic debt'; or (b) the taxpayer/ratepayer suffers from a terminal illness/very serious ill-health. What factors seem to be relevant to such an evaluation?
This article will consider this issue, in light of some published reports / statements (of reasons) of the relevant Ombudsman (Local Government & Social Care Ombudsman - the 'Ombudsman')):
(a) Investigation into complain No.08 002 300 against Exeter City Council ('Exeter 300'), decision on 4.3.09;
(b) Investigation into a complaint against London Borough of Islington (Ref No.:18 014 066) ('Islington 066'), decision 4.10.19;
(c) Royal Borough of Greenwich (Ref No.20 006 031) ('Greenwich 031'), decision on 1.4.21;
(d) London Borough of Lewisham (Ref No.:22 003 621) ('Lewisham 621'), decision 14.12.22;
Importantly, these reports/statements are:
(a) issued under s.30 of the Local Government Act 1974, a section entitled 'Reports on investigations';
(b) published under s.31B of the Local Government Act 1974, a section entitled 'Publication of reports etc by Commissioners';
(c) not legal precedents, in the same way as a reported case in the High Court, Court of Appeal, or Supreme Court (or other Court) is. These are not binding decisions. Consistency though, in decision-making, '...is a "generally desirable" objective, but not an absolute rule"' (Lord Bingham in R (O'Brien) v Independent Assessor [2007] 2 AC 312, paragraph 30). A rational reason/objective justification should be available where a later Ombudsman decision is inconsistent with an earlier Ombudsman decision. The principles established in R (Gallaher Group Ltd & Ors) v The Competition and Markets Authority [2018] UKSC 25; [2019] AC 96 mean that a public body is not legally bound to act in precisely the same manner as it has in the past. It can treat apparently like cases differently as long as it has a rational reason for the difference of treatment (R. (on the application of Bournemouth, Poole and Christchurch Council) v Local Government and Social Care Ombudsman [2025] EWHC 224 (Admin) ('Bournemouth), paragraph 125)[1]
(d) not exhaustive of the Ombudsman's published reports/statements.
2 LEVELS
2 Levels: (1) Court Level (2) Ombudsman Level
There is, in a sense, two level (or planes) to consider. There is:
(1) Court level; and
(2) Ombudsman level.
This article wil be focused on the Ombudsman level.
COURT LEVEL
Once a CTLO/BRLO has been made, subject to a challenge to that order in the Magistrates Court[2]), that is the end of the proceedings before the Magistrates Court on the Complaint/Summons for non-payment of business rates/council tax. Enforcement proceedings, on failure to pay the CTLO/BRLO, being separate set of proceedings[3].
There is no limitation period for enforcement of a CTLO/BRLO. No provision in the Limitation Act 1980 is relevant[4]. At first blush, it might seem that s.24(1) of the Limitation Act 1980 might be relevant. It is not. The words in s.24(1) have a special meaning which means they are not relevant[5].
OMBUDSMAN LEVEL
In Islington 066, the Ombudsman said, at paragraph 2, that it:
(a) investigates complaints of 'maladministration' and 'service failure' by local authorities - referring to this as 'fault';
(b) considers whether any 'fault' has had an adverse impact on the person making the complaint (i.e. the 'Complainant') - referring to this as 'injustice';
Where there is any 'fault' which has caused an 'injustice', the Ombudsman may suggest a remedy. See further, Local Government Act 1974, Part III, containing sections 23 to 34. See Ombudsman guidance and summary of the legal framework, in R. (on the application of Piffs Elm Ltd) v Commission for Local Administration in England [2023] EWCA Civ 486 [2024] KB 107 ('Piffs Elm')[6].
Council Tax Liability Orders - Enforcement of an Historic Debt
The Ombudsman, in Islington 066, found that is an obligation upon local authorities, once they have: (a) a CTLO; which has become (b) a historic debt, to consider whether or not they should enforce it. The obligation is to consider whether it is 'appropriate, fair and reasonable' (or 'fair and reasonable'), to enforce the CTLO for the historic debt.
In Islington 066, the Ombudsman said, at paragraph 19:
'Councils have discretion as to whether they should enforce a liability order. They risk fettering that discretion if they will never consider whether it is appropriate, fair and reasonable to enforce a liability order. Nor do we accept it would place an unreasonable burden on councils to consider if it is fair and reasonable to enforce a liability order for a historic debt.'
In reaching this view, the Ombudsman in Islington 066 recorded, at paragraph 19, that it had been the Council's argument, that:
(a) '...[the Complainant] could have applied to the court to have the liability order set aside.'; and
(b) the Council '...would be embarking on a parallel exercise to that of the courts if they considered whether it was fair and reasonable to enforce the liability order and collect the debt.'
To which the Ombudsman in Islington 066 said:
'We do not accept the Council's argument.'
Similarly, in Greenwich 031, the Ombudsman, after stating 'caselaw has clarified, once the court has done this, there is no time limit of a council’s ability to enforce a debt' (paragraph 20), said, at paragraph 21:
'But councils need to do this fairly, considering the debtor’s rights. They need to decide whether it is appropriate, in all of the circumstances, to pursue the debt.'
The Ombudsman continued in Greenwich 031, at paragraph 22:
'There will be many times when it is appropriate for a council to enforce a historic debt; for example when it has been trying, but has not succeeded, in tracing a debtor.'
Historic Debt
There is no technical definition from the Ombudsman as to what qualifies as 'historic debt'. In the following three cases, the CTLO debt was referred to as historic debt (or 'historic council tax debt' or 'historical debt'):
(a) in Greenwich 031, a CTLO was made in 2010 (paragraph 11); the Complaint made payments against this CTLO debt, up to 2013 (paragraph 13); in Oct 2019 (c.9 year after CTLO made; 6 years since last payment), the relevant Council wrote to the Complainant, demanding payment of the outstanding debt under 2010 CTLO (paragraph 14) After enforcement agents attended Feb 2020, the Complainant lodged his Complaint Aug 2020;
(b) in Islington 066, a BRLO was made in Nov 2001 for Apr 1996 to 31.3.01 (paragraphs 1 and 10); bailiffs were sent but were unable to collect the debt (paragraph 9); in Jan 2017, the relevant Council attempted to collect the debt again, and in May 2017, it managed to trace the taxpayer/Complainant (c.16 years after the BRLO was made). The Council itself wrote off Apr 1996 to 1.4.00 period (paragraph 10), but sought to collect 1.4.00 to 31.3.01 debt (paragraph 1).
(c) in Lewisham 621 (where no 'fault' was found), a CTLOs were made in Feb 2008 + July 2008 (paragraph 11); bailiffs were sent but were unable to collect the debt (paragraph 11); in April 2022 (c.13-14 years later), the relevant Council sent the case to enforcement agents, to collect the debt (paragraph 12), who traced the Complainant and sent her a compliance letter (paragraph 12). In May 2022, enforcement agents sent enforcement notices (paragraph 15) and visited the Complainant (paragraph 16).
Fault - Reason for Delay
Where there is historic debt outstanding on a CTLO/BRLO, a central issue seems to be why the debt was not collected earlier. Did the taxpayer/Complainant cease to be traceable by the local authority? Where did the taxpayer/Complainant go?
In Islington 066, the 'fault' found, was in the local authority's failure to trace the ratepayer/Complainant. The Ombudsman said 'The Council is at fault as it delayed in taking action to trace [the ratepayer/Complainant] for outstanding business rates.' (paragraph 23)
In Greenwich 031, 'fault' was also found. The Ombudsman said 'The Council is at fault as it delayed taking action to trace [the taxpayer/Complainant]. It took no action on the account for around six years.' (paragraph 23). The ratepayer/Complainant '...had not absconded' (paragraph 23). He had lived in the same borough '...for the entire period.' (paragraph 23).
Adverse Impact arising from the Delay
A further central issue seems to be, what irreparable prejudice has the taxpayer/Complainant suffered, as a result of the delay. In other words, how as the taxpayer/Complainant's position changed, as a result of the delay?
Inability now to tender evidence to show something to the taxpayer/Complainant's advantage / to support an assertion made by the taxpayer/Complainant, seems to be relevant:
(a) in Islington 066, the Ombudsman found that 'As a result of the 16 year delay [the taxpayer/Complainant] no longer has evidence to challenge the Council's Council’s decision that she was liable for the business rates.' (paragraph 26)
(b) In Greenwich 031, the Ombudsman stated:
'[Taxpayer/Complainant] says the Council’s delay in enforcing this debt means he cannot now provide proof that, as he maintains, he paid the council tax at the time. Passage of time will inevitably make it difficult for a person to challenge a debt, as supporting evidence (ie of payment) may no longer be available. That would put a complainant at a significant disadvantage. It cannot be fair for the Council to collect the debt when its own delay has prevented [taxpayer/Complainant] from being able to challenge it.' (paragraph 24)
Health
A different reason why 'fault' causing 'injustice', might be found, is where the local authority pursuing unpaid debt subject to a CTLO/BRLO, has not taken into account the taxpayer's welfare / physical / mental health issues. In Exeter 300, the taxpayer lived at an address in Exeter from May 1997 to Nov 2002, before moving to another property in South East England (paragraph 32). She was vulnerable, suffering from untreated physical and mental health issues[7]. A CTLO was obtained in relation to the Exeter property, and on Apr 2007, the taxpayer was adjudged bankrupt (paragraph 55) on the Council's petition, following service of (two) statutory demands. In 2001, the taxpayer told the Council that she was terminally ill (paragraphs 37 + 62)(whether this was in fact true was unclear). Investigating the period up to the commencement of the bankruptcy petition (paragraph 58), the Ombudsman made various comments:
(a) 'If it were true that [the taxpayer] was terminally ill, it may not have been appropriate to pursue the complainant to bankruptcy on the grounds of her poor physical health alone.' (paragraph 63)
(b) 'Given the stress such a document might cause, the limited time allowed to satisfy the statutory demand, and the very significant financial consequences of failing to do so, I do not see it as appropriate to threaten with bankruptcy someone who may - at least as far as the Council knew - have been close to death and with no means of immediate payment, without first exploring all possible alternatives and considering in depth whether such action is appropriate.' - the 'document' was a (first) statutory demand.
(c) there had been a failure to flag up to the Revenue Collection Manager, in 2001, her need for assistance, and an opportunity missed, to extract information from the taxpayer about her circumstances, her vulnerability and the reason why a claim for council tax benefit had ceased, has been maladministration (paragraph 65)
(d) 'The failure to make more rigorous enquiries in 2003 and 2004 before issuing a statutory demand was also maladministration. In my view, these omissions are likely to have sprung from the Council's failure to put in place adequate checks within its written procedures that all recovery officers could follow at an early stage. I am concerned that the lack of such a policy has allowed a very vulnerable person to slip through the net.
It seems to me that there really should be rigorous procedures in place for a Council to satisfy itself that a debtor is wilfully refusing to pay rather than, as a result of incapacity, proving unable to protect their own interests. The lack of a proper policy was maladministration.
I am also concerned that no written record was kept of how these decisions were made or what information the Council had to work upon. This reduces the protection that is in place for the debtor (if the decision is wrongly taken) and for the Council (where a correctly taken decision is made but challenged). As procedural impropriety is a reason for annulment of a Bankruptcy Order, it would appear to be necessary to maintain clear records. The failure to do so here was maladministration.' (paragraphs 70 to 72)
In the event, the Council on recognising the problem, 'quickly and sympathetically' agreed to obtain an annulment of the bankrupt (paragraph 74) (but left unpaid trustee in bankruptcy expenses, of £10,000 - £11,000, for the taxpayer to face (paragraph 56)).
Remedies
The Ombudsman is likely to want to impose a solution, which will remedy the injustice suffered by taxpayer/Complainant. Ombudsman recommendations to the relevant local authority can include:
(1) to write off the debt and, if applicable, to reimburse money already paid by the taxpayer towards the debt (as happened in Islington 066);
(2) compensation by a payment, for the trouble, frustration and lost time to the taxpayer;
(3) requirement for the relevant Council, to review its Council Tax and Business Rates Collection Policy.
For the legal foundation to the Ombudsman issuing recommendations, see Bournemouth, paragraphs 129 to 141. In Piffs Elm, Elisabeth Laing LJ, paragraph 83:
'If a Local Commissioner “reports” that there has been maladministration, “The report shall be laid before the authority concerned and it shall be the duty of that authority to consider that report, and, within the period of three months beginning with the date on which they receive the report … to notify the Local Commissioner of the action which the authority have taken or propose to take” (section 31(1) and (2)). If the authority do not do so, or the Local Commissioner is not satisfied with their response “he shall make a further report setting out those facts and making recommendations” (section 31(2A)). In the case of maladministration, those recommendations are recommendations “with respect to the action which, in the Local Commissioners’ opinion, the authority concerned should take” to remedy any injustice suffered by the person affected by the maladministration and to prevent injustice being caused in future (section 31(2B)). Section 30 applies, with any necessary modifications, to a report issued under section 31(2A) (section 31(2C)). If the authority does not respond, or the Local Commissioner is not satisfied with the upshot, he may “by notice to the authority, require them to arrange for a statement to be published in accordance with subsections (2E) and (2F)” (section 31(2D)). Section 31(3) gives the authority power to make any payment or to confer a benefit on any person who has suffered injustice in consequence of maladministration when a report is laid before them under section 31(2) or 31(2C).'[8]
SIMON HILL © 2025*
BARRISTER
33 BEDFORD ROW
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[1] There are a number of cases to consider here:
(a) In R (Gallaher Group Ltd & Ors) v The Competition and Markets Authority [2018] UKSC 25 ('Gallaher'), the public body was the Office of Fair Trade (OFT). The OFT treated different participates in a breach of competition law differently, because, in short, it had give one an assurance (TMR) which it had not given to the others. The giving of the assurance was later recognised to have been a mistake. Lord Carnwath (with whom Lord Mance, Lord Sumption, Lord Hodge and Lord Briggs agreed) said, at paragraph 24:
'Whatever the position in European law or under other constitutions or jurisdictions, the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law. Consistency, as Lord Bingham said in the passage relied on by the appellant (para 19 above), is a "generally desirable" objective, but not an absolute rule'
The passage quoted in paragraph 19 of Gallaher, is from Lord Bingham in R (O'Brien) v Independent Assessor [2007] 2 AC 312, wherein, Lord Bingham had said, in paragraph 30:
"It is generally desirable that decision-makers, whether administrative or judicial, should act in a broadly consistent manner. If they do, reasonable hopes will not be disappointed. But the assessor's task in this case was to assess fair compensation for each of the appellants. He was not entitled to award more or less than, in his considered judgment, they deserved. He was not bound, and in my opinion was not entitled, to follow a previous decision which he considered erroneous and which would yield what he judged to be an excessive award."'
Also in paragraph 30, Lord Carnwath in Gallaher noted:
''It was central to the reasoning of both courts below that the OFT was subject (as Collins J put it [2015] UKCLR 209, para 38) to "public law requirements of fairness and equal treatment". That analysis was not seriously challenged by counsel for the [OFT] in this court. They accepted that "the principle of equal treatment" applied to the OFT, but submitted that it did not require it to replicate a mistake, at least in the absence of "conspicuous unfairness". '
Lord Carnwath in Gallaher, essentially, held that this was wrong. At paragraph 23, he said 'Notwithstanding the degree of common ground on these points, it is important in this court to be clear as to the precise content and attributes of the relevant legal principles, and their practical consequences in terms of remedies.'
He held that:
(a) '...in domestic administrative law issues of consistency may arise, but generally as aspects of rationality...' (paragraph 26). He referred to R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin); The Times, 15 July 2004, wherein Stanley Burton J, essentially, held that baselessly reasons inconsistent treatment was '"Wednesbury unreasonable and unlawful", or in other words irrational.' (paragraph 28; Gallaher). The test applied by Lord Carnwath at paragraphs 43 and 44, seem to be a test of 'objective justification' or of 'rationality'. On the facts, an objective justification was identified/the OFT had not acted irrationally in different treatment as 'OFT had given the assurances to TMR in 2008, but not to the claimants' (paragraph 44)
(b) while 'procedural fairness' was a well-estabished concept, 'substantive fairness' was not a distinct legal criterion, which can be deployed in a judicial review, against a public body decision. Lord Carnwath said, at paragraph 41:
'In summary, procedural unfairness is well-established and well understood. Substantive unfairness on the other hand - or, in Lord Dyson MR's words [2016] Bus LR 1200, para 53, "whether there has been unfairness on the part of the authority having regard to all the circumstances" - is not a distinct legal criterion. Nor is it made so by the addition of terms such as "conspicuous" or "abuse of power". Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged.'
(b) In R. (on the application of Bournemouth, Poole and Christchurch Council) v Local Government and Social Care Ombudsman [2025] EWHC 224 (Admin) ('Bournemouth'), David Lock KC sitting as a Deputy High Court Judge heard an application, by a local authority ('Council'), for judicial review of a decision of the defendant Local Government and Social Care Ombudsman (the 'LGO'). The LGO's decision had been to uphold a complaint made against the Council, in a report/statement, finding that the Council were guilty of maladministration (for itself (the Council) not upholding a complaint by a parent '...that [the parent] was wrongly required to pay fees to a privately operated nursery where his child was provided with childcare as part of the government's Free Early Education Entitlement (" FEEE") scheme.' - paragraph 1)). The Council applied to add an additional ground for judicial review: 'The Council applies to amend its Grounds to plead that the LGO acted unlawfully in this case by failing to act consistently.' (paragraph 116)
Under the heading 'Ground 3A - Inconsistency', the Deputy Judge set out his reasoning, at paragraphs 116 to 127, as to whether he should accede to this application.
By way of background, Parliament had imposed a statutory duty (imposed by Childcare Act 2006 Pt 1 s.7(1)) local authorities (including this one: Bournemouth, Poole and Christchurch Council) to ensure that Free Early Education Entitlement (FEEE) hours were available to all qualifying parents of pre-school children on a "free of charge" basis. This issue was whether or not a given private nursery should be permitted to charge parents additional amounts, as a condition of access the FEEE hours. Would that be contrary to the notion that the nursery services (FEEE) were suppose to be free to the parents?
On this issue, the Council alleged, and the LGO accepted, that the impugned LGO decision in Bournemouth (that no mandatory/compulsory fees could be charged to parents accessing FEEE (for instance, for consumables or additional services)), was inconsistent with:
(a) a LGO decision involving Trafford Borough Council ('Trafford Case'). LGO contended that the Trafford Case was wrongly decided, being contrary to the statutory scheme (paragraph 117);
(b) a series of other LGO decisions, issued both before and after the decision in Bournemouth. The Deputy Judge, at paragraph 120, said that '[LGO's counsel] frankly accepts that, some of the decisions were simply wrong because the LGO either misunderstood the relevant statutory framework or failed properly to apply that framework to the facts. Whilst there are times when an LGO report has adopted the same approach as demonstrated in this case, it is common ground that the LGO has produced a series of other reports that are not consistent with each other and are not consistent with the LGO's present understanding of the FEEE legal framework...some of those inconsistent prior reports pre-dated the report examined in this case and others post-dated this report.'
'The Deputy Judge stated that, at paragraph 117:
(1) 'In summary the Council's case is that the LGO has failed to adopt a consistent approach and has thus reached inconsistent decisions in different cases.'; and
(2) 'The Council claims that these inconsistencies mean that the present report should be quashed.'.
All cases involve different facts so all decisions can be different
A first submission from LGO was quickly dismissed. LGO had submitted that '...these cases all turn on their own facts and that different decisions are justified by different facts.' - to which the Deputy Judge said, at paragraph 117:
'I do not accept that submission. The alleged, and to a large extent admitted, lack of consistency is about the LGO's understanding of the legal framework applying to these complaints.'
Submissions and conclusion
The Deputy Judge in Bournemouth set put the arguments and his conclusion, at paragraphs 121 to 127:
'The Council prays in aid the principles set out in Matadeen v Pointu [1999] 1 AC 98, para 109 where the Privy Council said:
"Is it of the essence of democracy that there should be a general justiciable principle of equality? … Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational."
I note however, Lord Hoffmann said as follows in the same case:
"… Of course persons should be uniformly treated, unless there is some valid reason to treat them differently. But what counts as a valid reason for treating them differently? And, perhaps more important, who is to decide whether the reason is valid or not? Must it always be the courts? The reasons for not treating people uniformly often involve, as they do in this case, questions of social policy on which views may differ. These are questions which the elected representatives of the people have some claim to decide for themselves. The fact that equality of treatment is a general principle of rational behaviour does not entail that it should necessarily be a justiciable principle - that it should always be the judges who have the last word on whether the principle has been observed. In this, as in other areas of constitutional law, sonorous judicial statements of uncontroversial principle often conceal the real problem, which is to mark out the boundary between the powers of the judiciary, the legislature and the executive in deciding how that principle is to be applied." (see now the current edition of De Smith's Judicial Review 8th ed (2018) paras 11.061ff)"
Matadeen was a Privy Council case and that case must be seen through the prism of the decision in R (Gallaher Group Ltd & Ors) v The Competition and Markets Authority [2018] UKSC 25 ("Gallaher") where Lord Carnworth [SIC] said at 24:
"Whatever the position in European law or under other constitutions or jurisdictions, the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law. Consistency, as Lord Bingham said in the passage relied on by the appellant (para 19 above), is a "generally desirable" objective, but not an absolute rule"
It was common ground that the need for an element of consistency should be treated as an aspect of rational behaviour by public law decision makers. Thus, the key question is not whether the decision maker has acted inconsistently but whether the decision maker has rational grounds for any inconsistency. Where a public body acts inconsistently, the first question is whether the public body has a rational reason for acting in the way that it did. In this case in summary the LGO says that she departed from previous decisions because she reached a final and settled view of the legal framework relating to the FEEE scheme and that, as a result, she declined to follow previous decisions which applied a different legal framework or which were inconsistent with her now settled understanding of the legal framework. As I mentioned above, it is common ground that the LGO is required to understand the relevant legal framework when making decisions and thus changing the LGO's approach away from approaches taken in prior reports to comply with that duty cannot be irrational.
Thus the Council would only have a ground to complain if the LGO's conduct gave rise to conspicuous unfairness amounting to irrationality given the way that the public body has acted to date. The principles established in Gallaher mean that a public body is not legally bound to act in precisely the same manner as it has in the past. It can treat apparently like cases differently as long as it has a rational reason for the difference of treatment. In this case the LGO is following the line set out in the LCC case, as confirmed in a Press Release. This Council and other local authorities were thus on notice that this was how the LGO saw the obligations on local authorities in relation to additional charges being imposed on parents who were accessing FEEE funded childcare. Whilst I accept that the LGO has not consistently followed the approach set out in the Press Release in subsequent decisions (as it ought to have done), I do not accept that it was conspicuously unfair for the LGO to decide this case in a way that was consistent with the LCC Press Release.
[Counsel for LGO] makes two further points in relation to this ground, both of which I accept. First, she submits that the only LGO report which is being challenged in these proceedings is the one published in response to Mr X's complaint. No challenges have been made in respect of other LGO reports. The fact that the LGO now accepts that these decisions were made applying an incorrect legal framework does not mean that they fall to be quashed in these proceedings. Those other reports have not been the subject of any timely challenge. Secondly, she relies on R (Piffs Elm Ltd) v Commission for Local Administration in England & Anor [2023] EWCA Civ 486 for the proposition that, once the LGO has published a final report, the LGO is functus officio and has no power to re-write an earlier report, even if the LGO subsequently reaches the view that the conclusions reached in those reports were based on a misunderstanding of the relevant statutory scheme.
As a result of these proceedings, I am told that the LGO has now settled its position concerning the legal framework applying to mandatory additional fees charged to parents accessing FEEE funded childcare. I have decided that the LGO has, in making this decision, properly understood the legal framework. That might lead the LGO to reflect on whether to continue to publish existing decisions which contradict that position or to add a caveat to those published decisions to the effect that they may not reflect the correct legal framework. However embarrassing it may be for the LGO to have to admit to having published a series of past decisions which failed to reflect the correct legal framework, I cannot see that that justifies the quashing of a report which is based on a correct understanding of the legal relevant framework.' [bold added]
[2] The Magistrates Court have the power to set aside their own CTLO/BRLO. This can be on an application to the Magistrates Court (Justices) by:
(1) the relevant Billing Authority (see further, this article)
(2) application to the Justices to set aside the CTLO/BRLO (see further, the Hamdan jurisdiction in this (same) article).
Not in the Magistrates Court, but there can be 'challenge' to the CTLO/BRLO in a more senior Court - that is, the High Court. This 'challenge' can take the form of either:
(a) appeal by way of Case Stated (see further, paragraphs 127 and onwards, in this article)
(b) judicial review (rare, and only a route of last resort - where there is no alternative route to a remedy) (see further, paragraph 132 of this (same) article)
[3] For enforcement of:
(a) CTLO - see Council Tax (Administration and Enforcement) Regulations 1992/613, reg.37 to 54;
(b) BRLO - see Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989/1058, Part III, entitled 'Enforcement', particularly regs.14 to 20.
[4] This was pithily put in London Borough of Lewisham (Ref No.:22 003 621), a decision on 14.12.22, where the Ombudsman said, at paragraph 8:
'Case law says there is no time limit to recovery action on council tax debt. Once a liability order has been granted, the Limitation Act 1980 does not apply. Taking action years after a liability order has been granted is lawful. Whether it is reasonable to do so is a matter the Ombudsman can consider.'
[5] Consider the cases of:
(1) W T Lamb & Sons v Rider [1948] 2 KB 331;
(2) Lowsley v Forbes [1999] 1 AC 329;
(3) Ridgeway Motors (Isleworth) Ltd v ALTS Ltd [2005] 1 WLR 2871
These are discussed in this article.
[6] In R. (on the application of Piffs Elm Ltd) v Commission for Local Administration in England [2023] EWCA Civ 486 [2024] KB 107, Elisabeth Laing LJ (with whom Popplewell LJ; Dingemans LJ agreed), said, under the heading 'The legal framework', subheading 'The Local Government Act 1974', from paragraphs 78 to 85:
'78. Part III of the LGA creates, and confers functions on, the Ombudsman. The Ombudsman is referred to in Part III as a “Local Commissioner”. Section 23(1) of the LGA provides for the establishment of a “body of commissioners to be known as the Commission for Local Administration in England” for the purpose of “conducting investigations in accordance with this Part and Part 3A” of the LGA . The rest of section 23 makes detailed provision for such matters as the appointment and terms of office of Local Commissioners, and the functioning of the Commission. Section 23(11) requires each Local Commissioner to prepare a general report on the discharge of his functions and to submit it to the Commission no later than two months after the end of the year to which it relates. Section 23A(1) imposes a duty on the Commission to “prepare a general report” and to submit it to various bodies. It must be submitted “as soon as may be” after the Commission have received the annual reports from Local Commissioners ( section 23A(2)). The Commission must publish its report and lay it before Parliament (section 23A(3) and (3A)).
79. Section 24A gives a Local Commissioner power to investigate various matters, including any matter “which relates to action taken by or on behalf of” an authority to which Part III of the LGA applies, which is subject to investigation by virtue of section 26, and in relation to which section 24A(2), (3) or (5) is satisfied.
80. Section 24A(6) provides that “In determining whether to initiate, continue or discontinue an investigation, a Local Commissioner shall, subject to the provisions of this section and sections 26–26D, act in accordance with his own discretion”. There is no dispute but that the Council are an authority to which Part III of the LGA applies (see section 25). By section 26(1)(a), one of the matters which is subject to investigation is “alleged or apparent maladministration in connection with the exercise of the authority's administrative functions”. Section 26(1) is subject to section 26(5), (6), (6A), (7) and (8). Section 26(6)(c) is the relevant restriction. It prevents a Local Commissioner from investigating “any action in respect of which the person affected has or had a remedy by way of proceedings in any court of law”, unless he is “satisfied that in the particular circumstances it is not reasonable to expect the person affected to resort or to have resorted to it”.
81. Section 28 is headed “Procedure in respect of investigations”. The Local Commissioner must give the subject of the complaint an opportunity to comment if he proposes to investigate a matter (section 28(1)). Every investigation must be in private, but subject to that, the Local Commissioner has broad general and case-specific powers about the procedure he adopts for an investigation (section 28(2)). The conduct of an investigation “shall not affect any action taken by the authority concerned or any other person, or any power or duty of the authority concerned or any other person to take further action with respect to any matters subject to the investigation” (section 28(4)). Section 29 confers wide powers on the Local Commissioner to obtain information for the purposes of his investigation. He may also obtain advice (section 29(6)).
82. Section 30(1) provides that if a Local Commissioner “completes an investigation of a matter … he shall prepare a report of the results of the investigation and send a copy to each of the persons concerned” (unless section 30(1B) applies). Such a report may include recommendations (section 30(1A)). In the circumstances described in section 30(1B) and 30(1C), the Local Commissioner either “may instead” or “shall prepare a statement of his reasons for” the relevant decision. The consequences of a report are described in section 30(4), (4A), (5), and (6) . If a Local Commissioner “thinks fit” he may after taking into account the public interest and the interests of the complainants and others, “direct that a report specified in the direction shall not be subject to the provisions of subsections (4), (4A) and (5)” (section 30(7)). The consequence specified in section 30(6) is that if any person who has custody of the report made available for public inspection obstructs anyone's attempts to get information about the report, he is guilty of a criminal offence.
83. If a Local Commissioner “reports” that there has been maladministration, “The report shall be laid before the authority concerned and it shall be the duty of that authority to consider that report, and, within the period of three months beginning with the date on which they receive the report … to notify the Local Commissioner of the action which the authority have taken or propose to take” (section 31(1) and (2)). If the authority do not do so, or the Local Commissioner is not satisfied with their response “he shall make a further report setting out those facts and making recommendations” (section 31(2A)). In the case of maladministration, those recommendations are recommendations “with respect to the action which, in the Local Commissioners’ opinion, the authority concerned should take” to remedy any injustice suffered by the person affected by the maladministration and to prevent injustice being caused in future (section 31(2B)). Section 30 applies, with any necessary modifications, to a report issued under section 31(2A) (section 31(2C)). If the authority does not respond, or the Local Commissioner is not satisfied with the upshot, he may “by notice to the authority, require them to arrange for a statement to be published in accordance with subsections (2E) and (2F) ” (section 31(2D)). Section 31(3) gives the authority power to make any payment or to confer a benefit on any person who has suffered injustice in consequence of maladministration when a report is laid before them under section 31(2) or 31(2C).
84. Section 31B gives the Local Commissioner a power to publish and re-publish reports and statements, and to supply copies to anyone who asks for one. Section 32 confers absolute privilege on the publications set out in section 32(1). Section 32(2) imposes limits on the disclosure of information obtained by a Local Commissioner in the course of an investigation.
85. Section 34(3) declares that “nothing in this Part of this Act authorises or requires a Local Commissioner to question the merits of a decision taken without maladministration by an authority in the exercise of a discretion vested in that authority”....
This case also considers whether the Ombudsman has the power to withdraw a report. There is no express power to withdraw a report, and, as the Court of Appeal found, there is no implied power either. Consequently, the Court of Appeal found that the Local Government & Social Care Ombudsman cannot withdraw a report, and re-open the completed investigation.
[7] In Investigation into complain No.08 002 300 against Exeter City Council ('Exeter 300'), decision on 4.3.09, the Ombudsman stated, at paragraph 31:
'[The taxpayer] became pregnant and infected with Human Immunodeficiency Virus (HIV) in her late teens, as a result of an association with a man who knew himself to be HIV positive. She has also had an addiction to heroin, and [the taxpayer's mother] says that as a result of this her daughter has mental health problems and her capacity to manage her affairs has been extremely poor. She initially had support from Social Services, but her son was taken into care when he was 11 years old as she was no longer able to cope, and [the taxpayer's mother] subsequently obtained a Residence Order for him. [The taxpayer] has had no support from Social Services since then, and although diagnosed HIV positive, has had no medication.
[The taxpayer's mother] believes that she has since developed Acquired Immunodeficiency Syndrome (AIDS) but this has not been diagnosed because [the taxpayer] has been unable to engage with the health care services. [The taxpayer's mother] says her daughter's life style has long been somewhat chaotic, with her only support coming from her family.'
[8] Readers will want to read Local Government Act 1974,
(a) sections 30, entitled 'Reports on investigations.' and
(b) section 31, entitled 'Reports on investigations: further provisions'
Extracts are provided below:
(1) Section 30(1) to 30(1C) of the Local Government Act 1974 reads:
'(1) If a Local Commissioner completes an investigation of a matter [ under this Part of this Act] 2 , he shall prepare a report of the results of the investigation and send a copy to each of the persons concerned (subject to subsection (1B)).
(1A) A Local Commissioner may include in a report on a matter under subsection (1) any recommendations that he could include in a further report on the matter by virtue of section 31(2A) to (2BA).
(1B) If, after the investigation of a matter is completed, the Local Commissioner decides–
(a) that he is satisfied with action which the authority concerned have taken or propose to take, and
(b) that it is not appropriate to prepare and send a copy of a report under subsection (1),
he may instead prepare a statement of his reasons for the decision and send a copy to each of the persons concerned.
(1C) If a Local Commissioner decides–
(a) not to investigate a matter, or
(b) to discontinue an investigation of a matter,
he shall prepare a statement of his reasons for the decision and send a copy to each of the persons concerned.
(1D) For the purposes of subsections (1) to (1C), the persons concerned are–
(a) the complainant (if any),
(b) any person who referred the matter under section 26C(2),
(c) the authority concerned, and
(d) any other authority or person who is alleged in the complaint, or who otherwise appears to the Local Commissioner, to have taken or authorised the action which is or would be the subject of the investigation.
...'
(2) Section 31(1) to 31(2C) of the Local Government Act 1974 reads:
'(1) This section applies where a Local Commissioner reports that there has been-
(a) maladministration in connection with the exercise of the authority's administrative functions,
(b) a failure in a service which it was the function of an authority to provide, or
(c) a failure to provide such a service.
(2) The report shall be laid before the authority concerned and it shall be the duty of that authority to consider the report and, within the period of three months beginning with the date on which they received the report, or such longer period as the Local Commissioner may agree in writing, to notify the Local Commissioner of the action which the authority have taken or propose to take.
(2A) If the Local Commissioner-
(a) does not receive the notification required by subsection (2) above within the period allowed by or under that subsection, or
(b) is not satisfied with the action which the authority concerned have taken or propose to take, or
(c) does not within a period of three months beginning with the end of the period so allowed, or such longer period as the Local Commissioner may agree in writing, receive confirmation from the authority concerned that they have taken action, as proposed, to the satisfaction of the Local Commissioner, he shall make a further report setting out those facts and making recommendations.
(2B) Where the report relates to maladministration, those recommendations are recommendations with respect to action which, in the Local Commissioner's opinion, the authority concerned should take
(a) to remedy any injustice sustained by the person affected in consequence of the maladministration, and
(b) to prevent injustice being caused in the future in consequence of similar maladministration in connection with the exercise of the authority's administrative functions.
(2BA) Where the report relates to a failure in, or to provide, a service which it was the function of the authority to provide, those recommendations are recommendations with respect to action which, in the Local Commissioner's opinion, the authority concerned should take-
(a) to remedy any injustice sustained by the person affected in consequence of the failure, and
(b) to prevent injustice being caused in the future in consequence of a similar failure in, or to provide, a service which it is the function of the authority to provide.
(2C) Section 30 above, with any necessary modifications, and subsection (2) above shall apply to a report under subsection (2A) above as they apply to a report under that section.'