QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DENNIS PHILIP HARDY
|- and -
|SEFTON METROPOLITAN BOROUGH COUNCIL
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Ranjit Bhose, instructed by Sefton Metropolitan Borough Council, for the Respondent.
Crown Copyright ©
Mr Justice Walker :
Liability to pay
"8.(1) Subsections (3) and (4) below shall have effect in substitution for section 6 or (as the case may be) section 7 above in relation to any chargeable dwelling of a class prescribed for the purposes of this subsection.
(2) Subsections (3) and (4) below shall have effect in substitution for section 6 or (as the case may be) section 7 above in relation to any chargeable dwelling of a class prescribed for the purposes of this subsection, if the billing authority so determines in relation to all dwellings of that class which are situated in its area.
(3) Where on any day this subsection has effect in relation to a dwelling, the owner of the dwelling shall be liable to pay the council tax in respect of the dwelling and that day.
(6) Regulations prescribing a class of chargeable dwellings for the purposes of subsection (1) or (2) above may provide that, in relation to any dwelling of that class, subsection (3) above shall have effect as if for the reference to the owner of the dwelling there were substituted a reference to the person falling within such description as may be prescribed."
Houses in multiple occupation, etc
Class C a dwelling which
(a) was originally constructed or subsequently adapted for occupation by persons who do not constitute a single household; or
(b) is inhabited by a person who, or by two or more persons each of whom either
(i) is a tenant of, or has a licence to occupy, part only of the dwelling; or
(ii) has a licence to occupy, but is not liable (whether alone or jointly with other persons) to pay rent or a licence fee in respect of, the dwelling as a whole.
Appeals to the Tribunal
(a) any decision of a billing authority that a dwelling is a chargeable dwelling, or that he is liable to pay council tax in respect of such a dwelling; or
(b) any calculation made by such an authority of an amount which he is liable to pay to the authority in respect of council tax.
"(1) Any matter which could be the subject of an appeal under section 16 of the Act or regulations under section 24 of the Act may not be raised in proceedings under this Part".
The Single Household Issue
On 17 May 1998, the dwelling known as 4b The Serpentine South, Crosby, was let to three individuals namely Ian Alcock, Ian Jervis and James Oldfield. Each tenant was given a tenancy agreement to occupy a named room within the property as follows:
Ian Alcock - Room 1
James Oldfield - Room 2
Ian Jervis - Room 3
Each tenant applied for and was awarded housing benefit in respect of the parts of the property they had a liability to pay rent in respect of.
The last occupant of the property vacated the property on 5 August 2001, and as such an exemption was granted in respect of the property for a period of 6 months from 5 August 2001.
Between October 2002 and April 2004, the council [i.e. the respondent] entered into correspondence with the appellant disputing his liability for the property, (copies of which were provided).
Over recent months since Mr Hardy had been disputing his liability to pay the council tax bill in question, the council has attempted to locate all of the relevant paperwork supporting the council's case. A copy of the tenancy agreement that was submitted to the council in support of Ian Alcock's application for housing benefit in May 1998 was shown to the Tribunal. Also provided were photocopies of part of his actual housing benefit application.
Attention was drawn to the Rent Officer's determination for housing benefit purposes in which he describes the dwelling for which he is making a determination as Room 1, 4b The Serpentine South.
Due to the length of time that has passed the council has been unable to locate the housing benefit records in respect of Ian Jervis and James Oldfied despite an extensive search... Notwithstanding this fact, the council's computer records indicate that both of the other tenants were awarded housing benefit for relevant periods in respect of rooms 2 and 3 respectively. Due to the nature of the housing benefit regulations, the council would not have awarded housing benefit to them unless the address quoted on the tenancies matched the part of the property which they occupied.
On the day of the original hearing on 7 September 2004, Mr Hardy presented a copy of a renewal tenancy dated 17 April 1999, which was taken at face value on the day of the hearing. The tenancy appeared to show that Mr Alcock later took on the tenancy of the whole flat known as 4b The Serpentine South, Crosby and not just one room within it. And as such the rent was £150.00 per week as opposed to the previous level of £50.00 per week.
However, upon return to the office, it was discovered that there was a copy of a tenancy agreement in Mr Alcock's housing benefit records also dated 17 April 1999, but clearly stating that he was continuing to rent room 1 only and his rent was remaining at £50.00 per week. Mr Alcock submitted this agreement to the council on 29 November 2000. The billing authority has noted the similarity of the "hand-written" parts of both versions of the tenancy agreement and it would appear that the documents produced to the council may have been amended at a later date."
"…it is only necessary to establish either that it [the dwelling] was originally constructed or subsequently adapted for occupation by persons who do not constitute a single household, or it is inhabited by tenants or licensees who are not members of a single household."
The Demand Notice Issue
"In the event that the [Tribunal] finds that the property is [within Class C], Mr Hardy asked that they follow the decision that the West Midland (West) Valuation Tribunal in a case… known as Miss R. In that case the appellant's liability had been back dated to October 1999. The tribunal decided that there had been a clear failure of the billing authority's administration. The tribunal decided that the effective date for the appellant's liability should be restricted to 1 April 2003 – that being the start of the financial year in which the appeal property was designated as [Class C]…it was not until 2003 that [the respondent] told the landlord that the property had been designated… by this time the tenants had long gone. Mr Hardy's case was strongly prejudiced by this delay. He asked that the [tribunal] follow the West Midland (West) decision and refuse to back date the liability prior to 2003."
"The [Tribunal] has decided that the liability should not be restricted as suggested by Mr Hardy. There is no evidence that [the respondent] has failed to administer the matter in an equitable fashion. [The respondent] has the power to back date liability and the [Tribunal] would not wish to interfere with its power in this case."
The Jurisdiction Issue
It is not in dispute that to withdraw a concession or take a point not argued in the lower court requires the leave of this court. In general the court expects each party to advance his whole case at the trial. In the interests of fairness to the other party this court should be slow to allow new points, which were available to be taken at the trial but were not taken, to be advanced for the first time in this court. That consideration is the weightier if further evidence might have been adduced at the trial, had the point been taken then, or if the decision on the point requires an evaluation of all the evidence and could be affected by the impression which the trial judge receives from seeing and hearing the witnesses. Indeed it is hard to see how, if those circumstances obtained, this court, having regard to the overriding objective of dealing with cases justly, could allow that new point to be taken.
Civil trials are conducted on the basis that the court decides the factual and legal issues which the parties bring before the court. Normally each party should bring before the court the whole relevant case that he wishes to advance. He may choose to confine his claim or defence to some only of the theoretical ways in which the case might be put. If he does so, the court will decide the issues which are raised and normally will not decide issues which are not raised. Normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings. Equally, a party cannot, in my judgment, normally seek to appeal a trial judge's decision on the basis that a claim, which could have been brought before the trial judge, but was not, would have succeeded if it had been so brought. The justice of this as a general principle is, in my view, obvious. It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled, and the court requires, to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the court, what case management and administrative decisions and directions to make and give, and the substantive decisions in the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis. There may be exceptional cases in which the court would not apply the general principle which I have expressed. But in my view this is not such a case.
"The [Tribunal] had no difficulty in determining that the appeal property was a house in multiple occupation.
During the course of the hearing, the billing authority conceded that all of the relevant information, which led to its determination that the appeal dwelling was a house in multiple occupation, had been in the possession of its housing benefit office since December 1999. Whilst the failure of two of its departments to communicate was unfortunate, this was not relevant to these proceedings and not a matter with which the [Tribunal] should be concerned.
The clerk, however, disagreed and drew both the parties and the [Tribunal's] attention to the cases of Encon Instillation Limited v Nottingham City Council and Regentford Limited v Thanet District Council.
…There had been a clear failure in the [billing authority's] administration. Consequently, the [Tribunal] decided that the effective date for the appellant's liability should be restricted to 1 April 2003, being the beginning of the financial year within which the appeal property is designated a house in multiple occupation.
The [Tribunal] was of the opinion that had the [billing authority] made its decision in December 1999, as it should have been able to since it had been in possession of all of the facts, the appellant would have been in a position to appeal against her liability at an earlier stage. Had that been the case, an alternative solution could have been found, for instance, Miss R could have increased the rent to take account of her council tax liability. Unfortunately, since housing benefit could only be back dated for 52 weeks this possible solution was unworkable.
In view of the foregoing, the appeal was allowed in part."
"Counsel for the billing authority has not advanced any argument seeking to limit the consequences of there being a breach of reg 5 (1). That does not surprise me. Regulation 5 (1) contains a balance between the interests of the ratepayers and the practicalities of administration. Parliament must have intended that if the billing authority has not complied with the requirement it would be wrong in principle for the ratepayer to have an obligation thereafter to pay."
"21. The language of Regulation 19 is not as strong as that of the regulation under consideration in [Encon]. The words used are "is to be" rather than "must be". As it seems to me this language admits of the construction that a breach of this statutory duty by a billing authority does not operate in all cases as a windfall to the person liable, but precludes a claim to payment and a duty to pay only when the breach has occasioned some procedural or substantive prejudice.
22. Regentford claim that the Council failed to serve the demand notice as soon as practicable, and that the delay in this case has occasioned prejudice in the sense that the records and information to establish that the Properties were not in multiple occupation and that others were resident at the relevant time are no longer available. There might well have been force in those submissions if Regentford had attended the hearing before the Justices and presented them. But it allowed the proceedings to go by default. They had the opportunity to have their day in court but did not avail themselves of it."