England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE MCCOMBE)

		Royal Courts of Justice Strand London, WC2A 2LL
		21 January 2004

1. LORD PHILLIPS, MR: This is the judgment of the court. Introduction
2. The respondent, Mr Williams, owns cottage called Pump Cottage, Henfield, West Sussex where he now lives in retirement with his wife. Between January 1993 and August 1996 Mr Williams was employed as a housemaster by Hurstpierpoint College ("the College"). The College provided him with a house at Hurstpierpoint called The Oaks. Mr Williams and his wife lived at The Oaks during this period. They stayed on there, by agreement with the College, until July 1997. By a decision dated 11 December 2002 the West Sussex Valuation Tribunal held that Mr Williams had to pay Council Tax in respect of Pump Cottage on the grounds that he and his wife had their sole or main residence there during this period. It is Mr Williams' contention that he and his wife had their main residence at The Oaks.
3. By a judgment dated 26 June 2003, McCombe J allowed an appeal by Mr Williams against the Tribunal's decision. He held that the Tribunal had erred in their decision in that they had wrongly treated themselves as bound by case precedent to treat two of the relevant factors that they considered as of overriding importance. He remitted the case to the Tribunal for reconsideration.
4. The Horsham District Council now appeals against McCombe J's judgment with permission granted by Sedley LJ on 15 August 2003. The Council contends that the weight to be attached to the relevant factors was a matter for the Tribunal and it was not open to McCombe J to set aside the Tribunal's decision on the ground that disproportionate weight had been attached to two of those factors.

The Facts

5. Before Mr and Mrs Williams moved to The Oaks, they were registered with a doctor and dentist in the neighbourhood of Pump Cottage. They remained so registered after their move. They were on the electoral roll for Pump Cottage, but also had their names placed on the roll for The Oaks. The College provided The Oaks part furnished. Mr and Mrs Williams moved most of their belongings and furniture from Pump Cottage to the Oaks. They left some furniture at Pump Cottage in case they should choose to stay there in the holidays. In fact they did not do so. Neither of them spent as much as a night in Pump Cottage during the relevant period, although Mr Williams paid periodic visits to it for the purpose of maintenance and in order to mow the lawn. When Mr Williams' employment as housemaster came to an end in August 1996, the College agreed that he and his wife could remain in residence at The Oaks until July the following year but made a charge for accommodation and Council Tax.
6. The attitude of the College at the time that Mr Williams took up his appointment as housemaster is indicated by this passage in a letter dated 10 November 1992 written by the Bursar to all members of staff living in college accommodation following discussions with Mid-Sussex District Council:

"The College will be obliged to declare that the school accommodation which you occupy is your 'main home' for Council Tax purposes. This means that if you own a house elsewhere in the UK you may be liable to pay Council Tax thereon. If your house is let the tenant will be responsible for the Council Tax; if it is empty then you will qualify for a 50% discount on the full Council Tax for the property."

7. The provision of accommodation at The Oaks was part of Mr Williams' contractual emoluments and was treated as such for tax purposes. The same is true of Council Tax which the College paid in full on behalf of Mr Williams.
8. While employed by the College, Mr Williams continued to pay Council Tax, without discount, to Horsham Council. On 3 September 1998, however, he wrote to the Council asking for a rebate for the period between January 1993 and July 1997 on the ground that Pump Cottage was unoccupied while he and his wife were living at The Oaks. The Council responded asserting that Pump Cottage fell to be considered as the Williams' sole or main residence, and that The Oaks should he considered to be their second home so that a discount of 50 per cent should be recovered from the Mid-Sussex District Council in respect of Council Tax paid on the latter property.
9. Mid-Sussex Council was then made aware of the situation and refunded to the College 50 per cent of the Council Tax paid in respect of The Oaks while Mr and Mrs Williams were in residence.

The statutory provisions

10. Section 6 of the Local Government Finance Act ("the Act") provides:

"6 Persons liable to pay council tax.

(1) The person who is liable to pay council tax in respect of any chargeable dwelling and any day is the person who falls within the first paragraph of subsection (2) below to apply, taking paragraph (a) of that subsection first, paragraph (b) next, and so on.

(2) A person falls within this subsection in relation to any chargeable dwelling and any day if, on that day—

(a) he is a resident of the dwelling and has a freehold interest in the whole or any part of it;

(b) he is such a resident and has a leasehold interest in the whole or any part of the dwelling which is not inferior to another such interest held by another such resident;

(c) he is both such a resident and a statutory [secure or introductory tenant] of the whole or any part of the dwelling;

(d) he is such a resident and has a contractual licence to occupy the whole or any part of the dwelling;

(e) he is such a resident; or

(f) he is the owner of the dwelling."

11. The critical issue before the Tribunal was whether Mr Williams was liable to pay Council Tax in respect of Pump Cottage as a resident with a freehold interest in it under section 6(1)(a), or as the owner under section 6(1)(f). This was critical by reason of the provision for discount made by the following subsection of section 11 of the Act:

"(2) Subject to section 12 below, the amount of council tax payable in respect of any chargeable dwelling and any day shall be subject to a discount equal to twice the appropriate percentage of that amount if on that day—

(a) there is no resident of the dwelling;

....

(3) In this section .... 'the appropriate percentage' means 25 per cent."

12. A resident is defined by section 6(5) of the Act as follows:

"'resident', in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling."

The Tribunal's decision

13. The Tribunal attached importance to three decisions, which is it is necessary briefly to summarise. Bradford Metropolitan City Council v Anderton [1991] RA 45 concerned liability for Community Charge payable in respect of a person's sole or main residence.
14. The charge payer was a merchant seaman who spent most of his life at sea. About 90 days a year, when he was on leave, he lived with his wife in respect of which the Charge was levied. His wife lived there all the time. The rest of the time he lived at sea aboard the "Atlantic Conveyor". The Tribunal held that this vessel was his main residence. On appeal, Hutchinson J considered a number of authorities, which led him to the conclusion that a merchant ship plying the high seas could not constitute a person's residence. At page 59 Hutchinson J held that, even if this was not correct, the cases establish that:

"....the respondent's sole or main residence is the house, because that is where his home is, where he has his settled and usual abode, which he leaves only when the exigencies of his occupation compel him to go to sea, for 'temporary or occasional absences of long or short duration'."

15. Ward v Kingston upon Hull City Council [1993] RA 71 is another Community Charge case. In that case the husband and wife jointly owned a house in Hull where she lived. He, however, spent most of the year living in tied accommodation in Saudi Arabia where he worked, returning to Hull when on leave. The Tribunal, in holding that the house in Hull was his sole or main residence, attached importance to the fact that he had security of tenure in Hull, but not in Saudi Arabia. The issue on appeal was whether this was Wednesbury unreasonable. Auld J held that it was not. After referring to Anderton's case, he said at page 80:

"There is the obvious distinction between that case and this in that there the judge was concerned with the occupation by the applicant of a ship, when he was working as a seaman at sea, and of his matrimonial home when he was ashore. Here the case concerns two houses on dry land, but, apart from that distinction, there are a number of common factors. The most important of those are: that Mr Ward has security of tenure in his home in Hull, which he clearly does not have in his tied accommodation in Saudi Arabia; that the only home that he owns is the one in Hull; that he lives in the accommodation in Saudi Arabia, when he does, only because he works there; and that as in the Bradford Metropolitan City Council case, he spends longer away from his matrimonial home than he does in it."

16. The two cases to which I have referred were cited to Potts J, in the final case, Doncaster Borough Council v Stark and Stark [1998] RVR 80. In that case a corporal in the RAF owned a house jointly with his wife. She lived there all the time, but he was required to live on the Air Force base when he was not on leave. The issue was whether the Council Tax payable should be subject to a discount on the ground that his wife was the only resident in the house, or whether he also had to be treated as a resident. In holding that Mr Stark was a resident, Potts J, after considering a number of authorities, said at page 82:

"Implicit in this is that accommodation obligatorily occupied by the taxpayer for the purposes of work, and occupation of which prevents him from returning to his usual abode, is not necessarily to be considered as his 'sole or main residence'."

The judge went on to hold that, had the Tribunal considered the following factors, it would have been bound to conclude that Mr Stark's house was his sole or main residence:

"(1) Corporal Stark's security of tenure at the Mexborough house;

(2) the fact that he spent his time there when off duty;

(3) the fact that if he was not employed by the Royal Air Force he would return to that house; and.

(4) the fact that the house was his marital home."

17. Before the Tribunal Mr Williams represented himself and the Council was represented by Miss Eveleigh. She referred to the three authorities which we have summarised, and submitted that a prime consideration was the lack of security of tenure in the accommodation provided by the College. This submission appears to have found favour with the Tribunal. The reasons given for their decision were as follows:

"The sole duty of the Tribunal was to determine whether or not The Pump Cottage was the sole or main residence of Mr and Mrs Williams. The successive decisions of the High Court and the Court of Appeal in the Anderton, Ward and Stark cases were particularly relevant in resolving this dispute. On the face of it, the taxpayers had security of tenure in the appeal dwelling and fully intended to return there when Mr Williams was no longer employed by Hurstpierpoint College. Furthermore, the other criteria set by the courts were broadly satisfied. There were however two reasons why the current case could be distinguished from the established law on this subject. Firstly, Mr Williams' wife accompanied him while he was residing in the college property unlike the spouses of the taxpayers in the three cases before the courts. Secondly, Mr Williams stated that at no time had he or his wife stayed overnight at the appeal dwelling.

In the opinion of the tribunal neither of these factors could cause the balance of the scales to be tilted sufficiently in favour of the taxpayers in the current case, since the most important and persuasive criteria were the security of tenure in The Pump Cottage as compared with the college accommodation and the fact that there was an undoubted intention to return there when Mr Williams' employment came to an end. The tribunal was not convinced that these additional circumstances would be likely to upset the now well-established corpus of the law."

McCombe J's decision

18. The relevant part of the judgment of McCombe J appears in the following paragraphs:

"30. It is also right that earlier in the decision on the second page, in dealing with Ward, the Tribunal set out several factors that had to be taken into account, including: (a) an intention to return, (b) the period of and reason for the absence, (c) the legal interest in the dwelling and (d), the security of tenure (e) the whereabouts of personal belongings, (f) the place where the spouse and children, if any, resided and (g) the registration of the taxpayer for dental, medical and electoral purposes. Clearly they had those matters firmly in mind and identified the distinguishing features.

31. However, to my mind while the Tribunal correctly identified those factors in the important part of their decision it seems to have regarded two of those relevant factors, namely security of tenure and an intention to return to Pump Cottage in due course as the overriding criteria above the others. I have already cited the relevant passage. They put it that the most important and persuasive criteria were the security of tenure in Pump Cottage as compared with college accommodation and the fact that there was undoubted intention to return when Mr Williams' employment came to an end.

32. The next sentence indicates to me that they seem to regard those as being most important and persuasive having regard to the well-established corpus of law, as they put it. Therefore, it seems to me that they elevated those two factors or seem to have elevated those two factors over and above that to which they truly deserve into overriding principles of law.

33. Mr Easton, for the respondent, submitted that provided the correct factors were taken into account, and provided the weight given to each of those factors is not "Wednesbury" unreasonable, the court should not interfere. I would agree.

34. However, that does not seem to me to get over the clear impression created that, notwithstanding the important distinctions in this case from those in the previously decided cases, these two factors were trump cards. Notwithstanding that undoubtedly Mr Williams' home in his own mind was The Oaks, and indeed his wife lived there and indeed that he had not spent any time at Pump Cottage at all, the other two factors were somehow more important in law."

The Council's submissions

19. Mr Easton, on behalf of the Council, submitted both orally and in his helpful skeleton argument that it was not open to McCombe J to interfere with the decision of the Council unless the test to be derived from the speeches of House of Lords in Edwards v Bairstow [1956] AC 14 at page 29 was satisfied. Mr Easton put forward the formulation of that test by Potts J in Stark at page 81:

"whether the Tribunal has misdirected itself in law or has reached a conclusion that is inconsistent with the only reasonable conclusion that a Tribunal properly directed on the law could make."

20. Mr Easton submitted that the question of whether the Williams' property was their sole or main residence was one of fact and degree for the Tribunal at first instance, relying on the judgment of Nourse J in Frost (Inspector of Taxes) v Feltham 1981 1 WLR at 455, a case where the issue was whether a house was used as the main residence. As the Tribunal had had regard to all the relevant factors, he submitted that at test in Edwards v Bairstow was not satisfied.

Conclusions

21. McCombe J held, as we read his judgment, that the Tribunal adopted an approach that was unsound in law. We think that he may well be right. One reading of their decision is that they gave particular weight to the question whether Mr and Mrs Williams had security of tenure of The Oaks, and to the fact that they intended to return to live at Pump Cottage because they believed that the decided cases required them to do so. If so, this was not the correct approach to legal authority in a case such as this.
22. Reference to decided cases may be of assistance in identifying factors relevant to the question of which is a person's main residence. But, because in a particular case one individual factor has been treated as of particular significance, it does not follow that it carries the same significance in a different factual scenario. However, whether McCombe J was right or wrong in his conclusion as to the reasoning of the Tribunal, there is, we believe, a more fundamental ground for challenging their decision.
23. There was and could be no suggestion that Pump Cottage constituted the Williams' sole residence during the relevant period. The issue before the Tribunal was whether during that period Pump Cottage or The Oaks was their main residence. The Tribunal's starting point should have been to consider the meaning of this phrase. Frost v Feltham might have assisted them in that task. Nourse J at page 455 appears to have accepted that "main" in this context means "principal" or "most important". Perhaps more significantly, he made the observation that a residence is a place where someone lives. The precise meaning of the word "residence" can vary according to its context. The 3rd edition of the Shorter Oxford English Dictionary includes the following material definitions of residence:

"a) 'the place where a person resides; his dwelling place; the abode of a person;

b) a dwelling, esp. one of a superior kind'."

24. Mr Easton submitted that we should give "residence" the latter meaning in the present context. We do not agree.
25. Where an estate agent's brochure speaks of a "desirable residence" it gives the word the latter meaning. In the present case, residence is used as part of the definition of the word "resident". The primary meaning of "resident" given by the dictionary is:

"One who resides permanently in a place."

The relevant definition of "reside" is:

"To dwell permanently or for a considerable time; to have one's settled abode; to live in or at a particular place."

26. All this reinforces the conclusion (which is one that we would have reached without reference to the dictionary) that in section 6(5) of the Act "sole or main residence" refers to premises in which the taxpayer actually resides. The qualification "sole or main" addresses the fact that a person may reside in more than one place. We think that it is probably impossible to produce a definition of "main residence" that will provide the appropriate test in all circumstances. Usually, however, a person's main residence will be the dwelling that a reasonable onlooker, with knowledge of the material facts, would regard as that person's home at the material time. That test may not always be an easy one to apply, but we have no doubt as to the conclusion to which it leads in the present case.
27. Mr Williams, upon whom we did not need to call, in a lengthy and lucid written argument, contended that the facts of his case are very different from the three considered by the Tribunal. We agree. In each of those cases there was: a matrimonial home in which the wife resided; the taxpayer had to live elsewhere as a condition of his employment, but when on leave or holiday returned to the matrimonial home; and in each of those cases the reasonable onlooker would have concluded that the residence subject to Community Charge or Council Tax remained at all material times the taxpayer's home. Where a person ceases to reside in the house which has been his sole or main residence for a period of time, an issue may arise as to whether during that period the house in question ceases to be his sole or main residence. The answer will depend on the particular circumstances; it will be a matter of fact and degree.
28. In the present case the Tribunal had regard to the fact that, during the material period, Mr and Mrs William never stayed at Pump Cottage, but failed to have regard to a number of circumstances that made that fact of particular significance. The first is the length of time that they lived elsewhere. Then there is the fact that Pump Cottage in West Sussex is very close to The Oaks in Mid-Sussex. That explains why Mr and Mrs Williams kept their doctor and dentist. According to Mr Williams, a visit to either only entailed driving for an extra 15 minutes or so. Another factor is that schoolmasters have much longer holidays than most people. Had Mr and Mrs Williams wished to live in Pump Cottage, there must have been lengthy periods when they would have been free to do so. Certainly the proximity of the two houses would have facilitated this. The next circumstance is that they opted to stay on in The Oaks at their own expense for nearly a year after Mr Williams' employment as housemaster ceased.
29. These circumstances would, in our view, lead any reasonable onlooker to conclude that Mr and Mr Williams moved their home from Pump Cottage to The Oaks, and that between January 1993 and July 1997, a period of 4½ years, The Oaks was their home. Furthermore, we do not consider that any reasonable Tribunal that applied a proper test to the material facts could have come to any conclusion other than that The Oaks, rather than Pump Cottage, was Mr and Mrs Williams' main residence during the relevant period. Indeed it could be argued that it was their sole residence.
30. Accordingly, we dismiss this appeal and direct the Council to pay to Mr Williams whatever sums may be due as a consequence of their failure to grant them a discount of 50 per cent of the Council Tax that would have otherwise been due in respect of Pump Cottage during the relevant period.

Order: Appeal dismissed with costs to be agreed.