QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| GETHIN PARRY
|- and -
|DERBYSHIRE DALES DISTRICT COUNCIL
Ranjit Bhose (instructed by Catherine Leddy, Head of Corporate Services, Derbyshire Dales DC ) for the Respondent
Hearing date: 11 April 2006
Crown Copyright ©
Mr Justice Stanley Burnton :
The statutory framework
(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 or secure 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.
(3) Where, in relation to any chargeable dwelling and any day, two or more persons fall within the first paragraph of subsection (2) above to apply, they shall each be jointly and severally liable to pay the council tax in respect of the dwelling and that day.
(5) In this Part, unless the context otherwise requires—
"owner", in relation to any dwelling, means the person as regards whom the following conditions are fulfilled—
(a) he has a material interest in the whole or any part of the dwelling; and
(b) at least part of the dwelling or, as the case may be, of the part concerned is not subject to a material interest inferior to his interest;
"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.
(6) In this section—
"material interest" means a freehold interest or a leasehold interest which was granted for a term of six months or more;
The decision of the Tribunal
Of the case law cited by the Billing Officer, the tribunal is mindful that none of the cases is on all fours with the case being considered, but the general principles in the Anderton, Ward and Stark cases is the fact that all three of these taxpayers were away from their "homes" because of the requirements of their employment. In common with these cases, Mr Parry was away from Ivanhoe Cottage because of his employment, the main differences between his situation and the Anderton, Ward and Stark cases being that of regular return visits to that matrimonial home. In Mr Parry's case there were no matrimonial ties or even family ties in Derbyshire and he states in his evidence that he did not stay at Ivanhoe Cottage while employed in Spain. However, as in the Stark case, he did enjoy security of tenure, and this was at the property he owned in Brassington, although this was not available to him during the term of his tenancy.
In the case of Navabi v Chester-letter-Street Disciplinary Committee, it is interesting to note the view that a property does not have to be furnished for it to be identified as someone's sole or main residence.
When considering the above higher court cases, the tribunal is mindful of the directions given in the case of Williams v Horsham DC. In this case, the Judge stressed the need for the tribunal to consider all factors rather than attach too much weight to the issues of "security of tenure" and the "intention to return" and to view the situation in the way any reasonable onlooker would.
The tribunal accepts that Mr Parry's situation differs in many key areas to the situations of the taxpayers cited in the precedent case law referred to by the Billing Officer. However, Ivanhoe Cottage was his home before he took up his employment in Spain and is the address to which he returned once that employment had ceased. It is also the property where he enjoyed greater security of tenure as owner, than the property in Spain, which was rented. The tribunal accepts that Mr Parry moved all his main possessions out of Ivanhoe Cottage, but believes this would, in part, have been done to make way for his tenant.
The tribunal gave full and careful consideration both to the relevant facts and the case law pertinent to this appeal and, when doing this, is persuaded that Ivanhoe Cottage should be correctly described as Mr Parry's main residence for the period concerned.
The Tribunal therefore finds that, after the termination of the tenancy agreement on the 30 November 2003, Ivanhoe Cottage reverted to being Mr Parry's sole or main residence. He should therefore be liable for 75% of the charge, from that date onwards, even though he was not actually living at the property again until the 21st of June 2004.
The contentions of the parties
The council taxpayer owned a cottage in which he and his wife lived until January 1993. In that month he took up employment as a housemaster at a nearby college in a different local authority area. The college provided him with a house into which they moved with most of their belongings and furniture. They remained registered with the same doctor and dentist and their names were entered on the electoral registers for both addresses. The college declared the house to be his "main home" for council tax purposes and paid full council tax on it on his behalf. The council taxpayer did not stay overnight in the cottage, even in the holidays, but continued to pay council tax on it, without rebate. He retired in 1996 but continued to occupy the college house, with permission and at his own expense, until July 1997 when he and his wife returned to live in the cottage. The council taxpayer applied to the council for a 50% rebate on council tax for the period from January 1993 to July 1997, pursuant to section 11(2)(a) of the Local Government Finance Act 1992, on the ground that the cottage had been unoccupied during that period. The council refused, asserting that the cottage had remained his sole or main residence throughout for the purposes of section 6(5) of the 1992 Act. He appealed on the ground that his main residence at the relevant time had been the college house. In holding that the cottage was the council taxpayer's sole or main residence, on which full council tax was payable, the valuation tribunal, in the light of three earlier decisions, treated as the most important and persuasive criteria the security of tenure in the cottage as opposed to the college house and the intention eventually to return to the cottage. The judge allowed the council taxpayer's appeal on the ground, inter alia, that the tribunal had given too much weight to those factors, elevating them into principles of law.
23 There was and could be no suggestion that Pump Cottage (the cottage owned by the Williamses) constituted the Williamses' sole residence during the relevant period. The issue before the tribunal was whether during that period Pump Cottage or The Oaks (the cottage provided by Mr Williams' employer) was their main residence. The tribunal's starting point should have been to consider the meaning of this phrase. Frost v Feltham  1 WLR 452 might have assisted them in that task. Nourse J, at p 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 Shorter Oxford English Dictionary, 3rd ed (1944), 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 Williams 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's 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 4 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's main residence during the relevant period. Indeed it could be argued that it was their sole residence.
"… actual residence is critical to an understanding of the relevant statutory provisions."
11. —(1)The amount of council tax payable in respect of any chargeable dwelling and any day shall be subject to a discount equal to the appropriate percentage of that amount if on that day—
(a) there is only one resident of the dwelling and he does not fall to be disregarded for the purposes of discount; or
(b) there are two or more residents of the dwelling and each of them except one falls to be disregarded for those purposes.
(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; or
(b) there are one or more residents of the dwelling and each of them falls to be disregarded for the purposes of discount.
(3) In this section and section 12 below "the appropriate percentage" means 25 per cent. or, if the Secretary of State by order so provides in relation to the financial year in which the day falls, such other percentage as is specified in the order.
Thus, if there is no resident of a dwelling, the person liable for council tax is entitled to a discount of twice the appropriate percentage.