MR WHIP OFF  Councils breaking Laws collecting council tax?

by Readers Question

13:41 PM, 7th December 2016
About 2 years ago

MR WHIP OFF Councils breaking Laws collecting council tax?

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MR WHIP OFF  Councils breaking Laws collecting council tax?

MR WHIP OFF by Disgruntled Landlordwhippy

Councils flaunting and breaking Statutory Laws collecting council tax

I have copied my letter I am sending to Norwich City council regarding the way they view the landlord’s liability. The letter is un-edited so it shows more than you need, the bit you can skip to is the last part on the 2nd page, you should get the gist. You might see there’s a touch of light humour in the earlier parts.

Whatever the legal boffins amounts us might say, don’t be put off by using some of the words as a challenge you never know, it might help you achieve a small victory with similar claims, from my past experience with Norwich I won’t hold my breath. I expect to pay the bill even though I believe it is wrong. Currently it’s not worth going to an unnecessary cost to challenge this. I have been to court many times for other issues, one thing I have learnt is to not take anything for granted, in my opinion it is far less of a risk challenging a small amount, as it helps to keep things in prospective and out of court or there is likely to be far less costs to pay if you do go to court and lose.

I take them up on two issues.
Firstly:- non occupation and liability.
Secondly:-Discounting one person then passing the charge to another.

The problems are many, the crouch of the matter is, the rules of hierarchy that governs who is liable for the council tax, it basically goes to the tenant in occupation, if they are not in occupation the liability falls to the owner. I make the stand that the tenant whether they occupy or not are legal owners and have legal control for the property until such point the tenancy has officially ended by both parties.
Norwich city council told me they class a tenant in a fixed period liable if they did not occupy the property but not tenants in a periodic tenancy liable instead making the landlord liable. they say their solicitors say the statutory laws I quote are just guides! Ha.

I would like to hear how Tessa and other legal boffins view the points I make, and the whether they are of the same opinion in regards to councils solicitor about them not needing to comply to statutory law’s.

Norwich City Council
City hall
Norwich
NR2 1NH
Complaints and Head of Council Tax
Ref: Mr WHIP OFF
5.12.16
Council Tax Bill raised and closed Date of issue 24.11.16 Property ref: 37610000400006

Your actions are out of order, despite the bill you have raised.

As well as other legal rights, a tenant by law holds legal rights of ownership to the property of their contract, rights which are above the landlords, Laws prevent any landlord from attempting to take back ownership or control of a property while a tenancy is in force.

Until any tenancy has been formally mutually surrendered, or ended by the terms of the agreement be they fixed or periodic, or by legal eviction of the tenant or any other persons in the property, control and ownership does not revert back to the landlord.

The control of the property still remains with the tenants, even if they have moved out it does not change the position of the law. Returning the keys to a landlord still does not end a tenant’s legal rights or obligations of contract until the landlord agrees or conditions are met. Until such a point that the tenancy has clearly mutually ended tenants are legally responsible for the council tax.
On this occasion the leaving tenants last day of contract ended on the 4th September, the new tenants contract overlapped the same day commencing on the 4th September. The property was furnished at the time.

You have raised a bill to me to cover the 3rd. the tenant leaving still had a tenancy in force up to and including the 4th. The new tenancy commenced on the 4th there was a continuation of “tenants owners” at no point did I regain my status as owner.

Even with the information you show on your bill, you state that the last day of the leaving tenant ended on and included the 3rd and the new tenant commenced, on and included the 4th . So you know there was no day in-between tenancies, yet you saw fit to bill me in full knowledge that I was not liable and in full knowledge of what parties were liable. Your adoption of the application of billing is not only wrong, your actions are illegal.

In previous correspondence with the council you have said you choose not to apply a charge to the person liable for the last day, That’s nice of you. It does not does not give you any right to make that charge to anyone else.

This is like an ice-cream man I will call him Mr WHIP OFF, he lets the last customer of the day have an ice-cream for free, hurray lovely ice-cream man. Bear with me!
The next day Mr WHIP OFF opens up for business, scribbles out a bill for the ice-cream he gave away the day before, then gives it the first person that walks close enough for him to give it to. What’s this for? Say the passer-by, it’s for the ice-cream I gave away yesterday, say Mr WHIP OFF, “F-OFF”! rightly say the passer-by, No “WHIPP OFF” say MR WHIP OFF, now pay up or I’ll take you to court.

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This bill has been issued falsely I do not have any liability to council tax on this occasion. If you had followed the ACTs of Parliament statutory laws of procedure as set out, you would have found this out.

I have made you aware that the actions of your billing is contrary to the STATUTORY INSTRUMENTS The Council Tax (Administration and Enforcement) Regulations 1992 1992 No. 613 PART II Regulation.

Because you ignore your duty to ensure the bills are made out to the correct people, and more to the point you are creating and sending bills to people knowing they are NOT liable, you are in breach of fraud and other serious laws too.
I have written to you several times now, your continued ignorance to comply is wearing very thin, while the bills I have received from you are, as in the case here, are often valued little to nothing, this is not really the issue. It is the fact that you raise any bill, or implied false liability before you have gone through the proper procedures, make you guilty of maladministration, you knowingly generate bills to people without knowing that they are liable. Worst still is that you know they are NOT liable. THIS IS MISUSE OF YOUR OFFICE.

Your actions of billing are without due process of proper enquiry your actions are reckless and time wasting, I have kept records to show my dealings with Norwich City Council and this very matter goes back decades, you cannot claim to be unaware of the duty to follow the laws that have been put in place by parliament, for you to follow to ensure bills are not falsely addressed.

If you come back insisting I am liable; I will pay it, only because of the hassle it will cause me to fight this, but take heed, this will not always be the case. Your actions will be recorded, if the LGO get involved evidence of a much wider maladministration and potentially evidence of breach of serious law such as fraud will involve all the staff who have knowingly been part of the process of actioning bill’s to people that they knew could not be liable.

This Mr WHIP OFF rubbish that you discount a person then charge another person who you clearly know is not liable, is absolutely wrong this needs to be addressed forthwith.

For your future records
• A Tenant is by law is the “Owner” whilst their tenancy is if force, whether they choose to occupy the property or not, the tenant has control of the property whilst their tenancy exists. Any tenants’ legal status as an owner with control supersedes their landlord’s liability of council tax.
• My new AST’s. are written to commence at; and end at; 11am on a Sunday at the beginning and end of each tenancy term. Each tenants are legally the owners up to and from those times. Under Council tax law I do not fall liable for council tax in such cases.
• A council is at liberty to discount a person for the last day of their council tax liability, a council acts illegally if it then makes a charge to another person for the same day, fully aware there could be No liability.
• No landlord has control of a property while an AST tenancy is in existence, be it fixed or periodic, no council has any legal right to claim otherwise.
• Just because a tenant moves out, does not end a tenants ownership or control over the property.
• Any landlord that attempts to take back ownership or control of the property without the tenant’s consent or legal judgement, faces serious criminal charges of illegal eviction and harassment, laws governing this are well established, you should already know this.

Chris



Comments

15:08 PM, 7th December 2016
About 2 years ago

Statue is not a guideline but it is subject to legal interpretation of how it exactly applies.

A tenancy agreement may make a person liable for a rental charge on a property however council tax liability is determined independently and can vary in liability - it doesn't always follow a tenancy agreement.

The tenant may in some cases hold the Council Tax liability when not resident (see the recent Appeals court case of Leeds City Council v Broadley case which answers your question regarding periodic tenancies) but unless they fall under the specific situation of being regarded as the 'owner' for council tax purposes then S6 of the LGFA92 doesn't allow for them to be liable when not resident (and this it falls on the actual owner)

Unless you can show the tenant was liable for the entire day in question then the 'owner' remains liable. S2(2) of the LGFA92 applies - "it shall be assumed that any state of affairs subsisting at the end of the day had subsisted throughout the day." i.e if the tenant is not legally liable for the council tax charge for the whole 24hrs then the actual owner is.
CouncilTaxGuy recently posted...Liability of tenants after vacation – Court of Appeal hearing

15:18 PM, 7th December 2016
About 2 years ago

To summarise
----
"For your future records
• A Tenant is by law is the “Owner” whilst their tenancy is if force, whether they choose to occupy the property or not, the tenant has control of the property whilst their tenancy exists. Any tenants’ legal status as an owner with control supersedes their landlord’s liability of council tax."

Not always. Council Tax has its own specific definition of owner (whilst resident they are not 'owners' under the Council Tax definition).

------
"• My new AST’s. are written to commence at; and end at; 11am on a Sunday at the beginning and end of each tenancy term. Each tenants are legally the owners up to and from those times. Under Council tax law I do not fall liable for council tax in such cases."

You'd fall foul of S2(2) of the LGFA92 unless the new tenancy started on the 4th, the previous tenancy would end on the 3rd for Council Tax purposes.

----
"• A council is at liberty to discount a person for the last day of their council tax liability, a council acts illegally if it then makes a charge to another person for the same day, fully aware there could be No liability."

They don't providing they take account of S2 and S6 of the LGFA92 and determine liability in line with it.

----
"• No landlord has control of a property while an AST tenancy is in existence, be it fixed or periodic, no council has any legal right to claim otherwise."

Control of property is not directly relevant. Council Tax only concerns itself with the liability determination set in Council Tax legislation.

-----
• Just because a tenant moves out, does not end a tenants ownership or control over the property."

It can do - again, see Leeds City Council V Broadley

----

"• Any landlord that attempts to take back ownership or control of the property without the tenant’s consent or legal judgement, faces serious criminal charges of illegal eviction and harassment, laws governing this are well established, you should already know this."

True - but this is separate from Council Tax liability determinations
CouncilTaxGuy recently posted...Liability of tenants after vacation – Court of Appeal hearing

Gennie Nash

8:06 AM, 8th December 2016
About 2 years ago

I didn't have time to read all of that, or the comments after, BUT, I feel your pain! My local council have on numerous occasions disputed my moving out dates of tenants saying the tenant told them they moved out earlier than the date I submitted. Sometimes as much as a month!! Their answer...but the tenant SAID they moved out! My answer has always been that their lease runs to the end of the month (all leases 1st -30/30st) and I didn't get keys until then. So, as far as I'm concerned they were using the property. They always side with the tenant which is perplexing to me. I always ask the council to prove to me that they didn't have furniture in there. They can't of course, but they are a law to themselves, so I just have to make the money up elsewhere. Poor tenants, ultimately they are the bottom line that take the brunt financially at the end of the day.

Trendo

8:46 AM, 8th December 2016
About 2 years ago

I have had 1 day bills on seamless changeovers for many years , I modified my ast to "from and including 1st xxx, upto and including 31st". There is no magic day or part day to be discussed. The time a council tax fictional day starts and ends is covered whatever they decide it wants to be. Which when pointed out has resulted in the bills being withdrawn for the past year or so

John Pettman

8:55 AM, 8th December 2016
About 2 years ago

I wrote an article in 2014 for the Southern Landlords newsletter and it available on line and this sets out the position in detail It is the Local
Government Finance Act that covers the position. Basically subject to exceptions the person in occupation is liable failing that its the owner of the property ,it is the question of ownership that causes the misunderstanding with local authorities. There are but two types of legal estates or ownerships Freehold or Leasehold.
Dealing with the last day of a tenancy , it is deemed that the existing tenant is NOT in occupation on the last day, however it is a settled point of law that on the last day of a tenancy it covers the whole of that day up to midnight , thus although the tenant may not be deemed as being in occupation they are the Leasehold owner and thus POTENTIALLY liable as owner. However the statutory requirements are that ownership must be a substantial ownership with a leasehold this must be 6 months or more . So as was decided in the London Borough of Camden,, the leasehold interest was only a monthly interest case if a tenant was holding over on a statutory periodic tenancy it was the Landlord that was liable . However in the Berwick Trustees V Shropshire District Council case the tenant was holding over on a CONTRACTUAL periodic tenancy and this was sufficient to satisfy the requirements of the act and the tenant was liable. THUS how to avoid having to pay the council tax. Don't let tenants hold over on a statutory periodic tenancy , at the end of the fixed tern issue a new tenancy for at least 6 months 2. following the wording in the A.S.T in Berwick trustees case so that at the end of the fixed term a Contractual periodic tenancy comes into play 3. Issue a tenancy for a longer period with a break clause in it
I have had problems with two Councils Canterbury for one took legal; advise before they conceded that they were wrong , it was like trying to get blood out of a stone despite setting out the position in simple step by step No apology from them

John Pettman LL.B(Hons)

MoodyMolls

9:19 AM, 8th December 2016
About 2 years ago

Hi John

If at the end of a 6 month fixed term you then issue another tenancy for 6 months would you need to reprotect the deposit ?

Can you not say within the first fixed term 6 month tenancy that this will revert to a CONTRACTUAL periodic tenancy on the ending of the fixed term?

DC

9:43 AM, 8th December 2016
About 2 years ago

Reply to the comment left by "KATHY MILLER" at "08/12/2016 - 09:19":

In respect of the procedure when issuing follow-on tenancies the legislation, with the advent of the 2015 Deregulation Act does not require the deposit to be re-protected and likewise there is no need to re-issue the Prescribed Information unless any detail within the form has changed, especially the deposit amount.

DPS in particular though use the up to date rent payment amount as a security question for tenants when they get in touch, so any changes need to be updated with them, which you are able to do online.

Clint

9:59 AM, 8th December 2016
About 2 years ago

Hi John & DC

Firstly, having read the whole of the article including all the comments, I must say I have learnt two main points.

1. Thanks to DC I now know that it is not necessary to protect the deposit of Tenants on issuing a new tenancy following the deregulation act if all the terms of the new tenancy are the same as the old tenancy. Does this apply to tenancies that commenced before the deregulation came into force?

2. Are you able to provide the wording that would ensure that following the fixed term tenancy a contractual tenancy comes into force. This would be useful especially for those that don't necessarily want to have to sign a new fixed term tenancy. I think this is what Kathy was asking and this information would certainly benefit not only me but many other Landlords.

MoodyMolls

10:21 AM, 8th December 2016
About 2 years ago

Yes currently on my tenancy it says that on ending of fixed term it will move into a periodic tenancy, if I just change the wording to CONTRACTUAL periodic tenancy on the ending of the fixed term is this ok.

When I update the DPC it shows periodic on the updated version? how would I get this to say
CONTRACTUAL periodic tenancy or would this not matter?

Clint

10:41 AM, 8th December 2016
About 2 years ago

Kathy's questions have raised very similar questions that I would most appreciate an answer to:

Following my fixed term tenancy my wording states that a Statutory periodic tenancy arises and I would ask if "Statutory" could be replaced with "Contractual". It seems obvious but I don't want to have the wrong wording.

A futher problem is when I update my deposit certificate following the fixed term the new certificate states "Statutory periodic tenancy" which would as far as I can see definitely pose a problem whereas I would think that if it just stated "Periodic Tenancy" one could possibly get away with that.

By the way, I use MyDeposits to protect the deposits.

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