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IN THE FIRST-TIER TRIBUNAL

GENERAL REGULATORY CHAMBER


(INFORMATION RIGHTS)
APPEAL: EA/2013/0285


BETWEEN:

Xxxxx Yyyyy
Appellant
and
THE INFORMATION COMMISSIONER
Respondent

APPLICATION FOR PERMISSION TO APPEAL TO UPPER TRIBUNAL
(GROUNDS OF APPEAL)

Documents referred to in these grounds (listed below) are provided separately:
First-tier Tribunals Final Decision
ICO Guidance Feb 2009 Do I have to create information to answer a request?
ICO Decision Notice FS50070854
Introduction
1. These grounds of appeal are in accordance with paragraph (5)(b) and (5)(c) of rule
42 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules
2009.

2. It is deemed that the Tribunal wrongly interpreted the law in regards the Council
Tax (Administration and Enforcement) Regulations 1992 and the Freedom of
Information Act 2000.
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Council Tax (Administration and Enforcement) Regulations 1992

3. It is viewed that the Tribunal has wrongly interpreted the law by stating that
regulation 34(5) of the Council Tax (Administration and Enforcement)
Regulations 1992, does not oblige a council to hold the requested information, see
7, of the Tribunals Final Decision (the FD).

4. Regulation 34(5) lays down the conditions under which the authority must accept
payment and the application not be proceeded with (see FD, 7). Those conditions
are met if there is paid or tendered to the authority an amount equal to the
aggregate of the outstanding balance and a sum of an amount equal to reasonable
costs incurred.

5. In the same way that it is not explicitly stated that the requested information must
be held, neither is it stated (see FD, 8) that A council may use a standard
estimate of the costs that it reasonably incurs.... The obligation therefore derives
from interpreting regulation 34(5) of which one is submitted below:

i) After a summons has been issued but before the case is heard, the court
has no jurisdiction over the level a council may claim in costs and is of
no consequence whether deemed reasonable by the court (only at the
hearing would the court have power to question them).
ii) The amount paid or tendered to the authority is neither prescribed nor
can a standard sum in a legal sense be agreed by the Court. It is
therefore open to the council to accept payment at this stage, being
mindful of the amount tendered as may vary from case to case (see
note).
iii) If an amount was paid or tendered, and the council failed to agree the
sum (the court yet has no power), then a council, by virtue of
regulation 34(5) must be obliged to support its claim in order to justify
the sum is less than costs reasonably incurred.
iv) Proceeding with the application once an amount has been paid or
tendered would be breaching regulation 34(5), as it clearly states:

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the authority shall accept the amount and the application shall
not be proceeded with

Note: The circumstances of the case were explicitly stated in the request for
information.

Freedom of Information Act 2000

6. In regards the question arising as to whether the information would be deemed
held (on account that it would need compiling) the Tribunal has agreed with the
ICOs Response (see FD, 9) in so much as:

if it involves the proposition that information is held from which the costs
identified in the request could be calculated...this was not the information
requested and that any arithmetical calculation would disregard the fact that
costs reasonably incurred vary from case to case since they are not confined
to court fees.

7. Section 8(1) of the Freedom of Information Act 2000 (the FOIA) sets out that
any reference in the Act to a request for information is a reference to such a
request which (c) describes the information requested.

8. Pursuant to section 84 FOIA (Interpretation), information means information
recorded in any form

9. It is therefore reasonable that the requested information, described as it was,
should not have been subject to the rigidity of being viewed invalid by virtue of
the fact that it was necessary to aggregate the component parts.

10. The request described exactly at which point of recovery the costs were incurred;
the Appellants Reply noted the automated process meaning costs specific to the
case would be limited principally to court fees (3) and amounts in respect of
postage, stationary and printing.

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11. The FOIA covers any recorded information that is held by a public authority;
however, it does not have to create new information to respond to requests. It may
well then be argued that by having to compile information from elements it holds,
the requested information is not held as it considers this to be creating new
information for which there is no obligation.

12. Guidance notes (Do I have to create information to answer a request?) were
published in February 2009 by the ICO as part of a series to help public authorities
understand their obligations and to promote good practice. The guidance states
that:
A public authority is not creating new information where:

it presents information it holds in the form of a list or schedule;
compiling an answer to a request involves simple manual
manipulation of information held in files; or,
it extracts information from an electronic database by searching it
in the form of a query.

13. The guidance makes reference to an ICO Decision Notice (FS50070854) in
explaining the difference between extracting or compiling existing information
and creating new information. The example sought to establish that compiling
information (from separate records for example), that although it may be a new
task, it is not creating new information.

14. The Commissioner required the public authority to provide information in the
form of a schedule. The public authority (see 27, FS50070854) "argued that it is
under no obligation to provide such information. It says that if it were to accede to
this request it would, in effect, be required to create new information and that
there is no obligation on public bodies under the Act to do that"

15. This view was not accept by the Commissioner and in response, stated at 28 of
the Decision Notice:

The information already exists: the public authority cannot be said to be
creating it. And, while producing a list of the documents in which the
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relevant information is contained may be a new task, it is not creating new
information; it is simply a re-presentation of existing information as a by-
product of responding to the information request.

16. The guidance then deals with a hypothetical case where the requested information
is not held by an authority in a discrete form, but data (from which it is necessary
to calculate a total, for example) exists in individual and separate records.
Though the calculation has not already been done, it was considered if involving
simply retrieving and compiling information from original sources it would not
normally amount to the creation of new information. The guidance notes then
state:

What amounts to a simple rather than a complex calculation depends on
the level of skill and judgement required to carry out the task. If extracting
the information relevant to the request requires a high level of skill and
judgement, this would amount to creating new information not already
held.

17. In order for the information to be disclosed, it would require the Council to carry
out a simple rather than a complex calculation. The complexity of costs varying
from case to case (see FD, 9) does not arise, because boundaries were laid down
in the request removing them. For example, difficult to quantify elements are of
no relevance which account for the length of time council staff need to be engaged
with debtors agreeing or setting up payment arrangements, monitoring payment
arrangements, telephone communications or written correspondence.

18. However, since the request, the Council has produced what may be considered a
complex calculation (see APPENDIX A). This ultimately shows the costs as an
average, taking the recovery element from the total Collection and Recovery
budget, divided by the number of summonses issued. The calculation has regard to
the difficult to quantify elements, as is evident from the Council Tax activity
levels section of the calculation that assesses costs quantified from the time
engaged with debtors arising from issuing summonses.

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19. One would expect that if an in-depth calculation that accounts for all expenditure
connected with recovery has been possible, a much simpler one, as would be
required to answer the request under appeal, could be produced from information
held separately. Section 11 FOIA requires a public authority to provide
information in the manner requested if this is reasonably practicable.


12 June 2014














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ANNEX A

Summons Costs 2012/13


A0191
Council
Tax
A0187
Debt
Recovery
A0184
Control &
Monitoring Total

Gross Collection and Recovery expenditure 869,463 647,578 716,076 2,233,117

The gross cost of Council Tax team includes
expenditure of 84,000 related to set-up
arrangements (mainly software costs) for the
LCTSS. This spending was funded by a CLG
grant so has been excluded.


84,000


84,000

The net cost of the debt recovery team is
recharged across other teams. This has been
reversed to avoid duplication.


40,000


40,000

Enforcement Costs - 59,309 was paid to
HMCS for fees (50% is estimated to be
attributable to enforcement) and 25,148 was
paid in debt recovery costs (all enforcement)



54,800


54,800

Enforcement Costs - staff and overheads



124,483


124,483

Collection costs for taxpayers who pay before
summons issued (see calculation tab)


484,551


484,551

Estimate of Control and monitoring time on
non council tax summons activity (80%)



572,861


572,861

Debt recovery costs for NDR/Housing
Benefit/Sundry debtors (30%)



140,488


140,488

Gross Recoverable costs (including liability
orders)


260,912


327,806


143,215


731,933
30% 51% 20% 33%
Further work to liability order (estimate at 5%
of Gross Recoverable costs)



36,597

Gross Recoverable costs 695,337

Number of summons requested in 2012/13 9,396

2012/13 Cost per summons 74.00




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Council Tax activity levels

Collection
costs non
summons
Collection
cost
summons
Gross cost of Council Tax section

869,463
Less grant funded expenditure - 84,000
Less recharge from debt recovery - 40,000
Adjusted gross cost

745,463

30% of activity on routine billing activity

223,639

223,639

-
70% of activity on reminders/final bills/queries

521,824

260,912

260,912


484,551

260,912





No of reminders/final (from 12/13 data sheet)

33,100
No of council tax summons (from data sheet)

9,396
No of reminders not resulting in summons

23,704 56%

No. of calls arising from issue of each summons is at least twice as many as for reminders, therefore
Weighted number of summons

18,792 44%

Adjusted total

42,496

ESTIMATE THAT NON ROUTINE BILLING ACTIVITY IS SPLIT 50/50 BETWEEN THOSE PAYING
ON TIME AND THOSE PROCEEDING TO SUMMONS