Delegation, calculation of penalties and applying penalties to Rates A dogs Breakfast
By Grace Haden
I ask for these notes and the attachments to be appended to the minutes.
I have been assisting Penny Bright in making sense of her rates demand, this has given me cause to look at the processes involved and the manner in which the penalty regime has been approached. In doing so I have noted a number of issues which require resolution.
Delegation
Serious issues arise with the delegation of the powers under the Rating act
The annual plan in 2013 & 14 both state
Delegation of decision-making
Decisions relating to applying the rates under the rates related policies will be made by council officers.
The legislation Local Government (Rating) Act 2002 however states
132 Delegation
(1) A local authority may delegate the exercise of functions, powers, or duties conferred by this Act on the local authority to—
(a) its chief executive officer; or
(b) any other specified officer of the local authority.
(2) A local authority must not delegate—
(a) the power to delegate; or
(b) a function, power, or duty conferred by subpart 2 of Part 1 or subpart 1 of Part 5.
The question therefore is who ultimately has the delegated powers and who can lawfully make decisions with regards to the rates and consequently the penalty regime.
It is important to resolve the matter of delegation before we consider whether or not rating polices are legal
Applying penalties to Rates
The sequence of events is also crucial
1. The person who holds the delegated powers or powers has to be identified.
a. I have been unsuccessful in getting this information Mr Town responded this morning Rates and their setting is not delegated but is adopted by the Governing Body as required by law. Therefore no staff member has this delegation. However, delegations for different parts of the implementation of the rating system rest with different staff members depending on what is required.
b. It appears to me that what we have in the annual report and what is required by law is not expressed clearly also the act makes it clear that responsibilities can be delegated to A specified officer not “different staff members depending on what is required”
2. A resolution must be made to authorise penalties to be added to rates no later than the date when the local authority sets the rates for the financial year, It follows logically that this resolution must be available to be produced and one would think in this day an age available for public inspection on the internet. And
a. It has to stipulate how the penalty is calculated
b. the date that the penalty is to be added to the amount of the unpaid rates
c. and must not exceed 10% of the unpaid rates.
3. Section 58 sets out the various types of penalties which the council can impose and it would follow that these are the only penalties which can be imposed .
4. This penalty regime MUST be conveyed in the assessment notice. see assessment notice
There is much confusion as to who really holds the responsibilities as to setting the penalty regime and there is also confusion as to the regime itself.
The annual plans all state: The council must use the special consultative procedure set out in the Local Government Act 2002 to adopt and amend the rates related policies.
The act on the other hand is specific in that it states that the policy must be set “By resolution no later than the date when the local authority sets the rates for the financial year “
This implies that this policy must be set or adopted by resolution annually
In the annual plan 2013-2014 states
The council will apply a penalty of 10 per cent of the amount of rates assessed under each instalment in the 2013/2014 financial year that are unpaid after the due date of each instalment. Any penalty will be applied to unpaid rates on the day following the due date of the instalment.
and 2014-2015
The council will apply a penalty of 10 per cent of the amount of rates assessed under each instalment in the 2014/2015 financial year that are unpaid after the due date of each instalment. Any penalty will be applied to unpaid rates on the day following the due date of the instalment.
A further 10 per cent penalty calculated on former years’ rate arrears will be added on the first business day of the new financial year (or five days after the rates resolution is adopted, whichever is the later) and then again six months later.
The words applied to do not necessarily mean that the penalty will become part of the rates and incorporated into the rates. The wording is not specific as to how the rates and penalties are calculated.
Further :The act requires the invoices to show the amount of the penalty on any unpaid rates for the rating unit and the amount of any unpaid rates owing from a previous financial year for the rating unit. The connotation is therefore that the rates and the penalties are two separate amounts and not one.
This brings about the question of whether or not penalties can be applied to penalties, if there is no resolution that penalties are added to the previous year’s rates then the next lot of penalties applied can only be applied to rates and not rates plus penalties.
The next issue which arises is the rates due for the financial year.
The invoices tates Total rates payable for 2014-2015.
Unless the resolutions to set dates for instalments can be shown to have been made legally and with the proper consultation they cannot be enforced.
The invoice shows the sum due for the year but nowhere on the invoice is there a date by which that sum is due .
There an ability to pay a reduced sum in one payment and getting a hefty 1.1% discount if the payment is made by the first instalment date, the other options available are to be penalised or to pay instalments.
Every one paying their rates on time effectively pays a full month prior to the end of the financial year. Nowhere does it state that the full rates are due by that date.
Penalties are not equal
People living in higher priced areas pay higher penalties as can be seen by the two different invoices I have produced. The penalty for late payment in Epsom is $112.70 per quarter and In Kingsland $58.10 per quarter. This is significant and a flat penalty fee should be considered due to the ever increasing property prices.
calculation of penalties
Unlawful penalties
The act allows penalties of up to 10% of the rates to be added, it does not say per annum and this allows the council to continually add 10% the rates at 6 monthly intervals if an amount is a year old. This is in excess 20% and makes loan sharks look good.
While 10 % is legal the e reality is that a penalty in excess of 10% is added.
10 % is being added to the GST inclusive price, this price is already 15% more than the set rate.
While council through legally set penalty regimes can charge up to 10% penalty on rates they have no legal ability to charge 10% penalty on GST.
This also raises the question of the GST which the council then declares to IRD as having been received but that is a matter for you.
Taking Penny’s rate bill for example the rates instalment is $581 of which $75.78 is GST by charging 10% on the GST inclusive sum a further $7.57 of unlawful penalties is charged per quitter.
In the Epsom example the sum is an extra $14.70 per quarter
It would appear that the rates are a dogs breakfast , they are hap hazard and not done according to the legislative requirements.
While Council appear to ignore the law which they have to comply with, they enforce penalties which have been imposed without any legal basis and against the rule of law.
Council is required to act according to section 14 Of the local government act
a) a local authority should—
• (i) conduct its business in an open, transparent, and democratically accountable manner;
I have not even been able to get questions answered let alone find relevant documents on the council web sites which would enable me to follow the tail of consultation, delegation, resolutions and implementation.
If this is what happens in the process of collecting rates, then we really do have to wonder about the process of spending them.
I have personal experience of seeing the council allow council officers use council resources infrastructure for self-enrichment. There is a deliberate turning of a blind eye to his while rate payers are seen as a bottomless pit of revenue. Questioning this has cost me more than $300,000 . we have persons in council on wages of $600,000 per year what are they being paid for. I would hope it is to get this kind of thing right.
This will also be posted on www.Transparency.net.nz
Grace Haden
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