QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BOZENA POGONOWSKA||Claimant|
|LONDON BOROUGH OF CAMDEN||Defendant|
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MR P OLDHAM (instructed by London Borough of Camden) appeared on behalf of the Defendant
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"An appeal shall lie to the High Court on a question of law arising out of a decision or order which is given or made by a tribunal on an appeal."
"...each billing authority shall [...] levy and collect a tax, to be called council tax, which shall be payable in respect of dwellings situated in its area."
"In this part, 'billing authority' means
"(a) in relation to [London] ... London borough council."
"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."
"He is such a resident."
"He is the owner of the dwelling."
"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."
"...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."
"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 1992 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."
"...which is, establishing who is the liable person for Council Tax on 8 Dobson Close with effect from 1 April 2004."
"In summary, Mr Emami reiterated that Camden Billing Authority was not satisfied that Joseph Pogonowski was resident at 8 Dobson Close. He said that the information the Council held was contradictory and did not support this claim. The Billing Authority is satisfied that, for the purposes of Council Tax, the main residence of both Mrs Pogonowska and her son is in the London Borough of Westminster at Tresham Crescent where she pays the full Council Tax charge."
"Mrs Pogonowska provided the tribunal with a written statement and copies of correspondence and documentation. Mrs Pogonowska said that her son, Joseph had lived at 8 Dobson Close to be nearer to his university and because he had a part-time job at 'Blockbusters' across the road from the property. She explained that Joseph attended Westminster College from 1997 to 1999 and then subsequently went to the University of North London (hereafter the Metropolitan University) from 1999. She complained that the Billing Authority had mislaid documentation she had sent and given her incorrect information."
"8 Dobson Close was purchased in 1995 and her son, Joseph, moved to live there when they left Balmore Street in 1997, he was 19 years old. She stated that he was still resident at Dobson Close and working part time at 'Blockbusters' but was currently taking a year off from his course at the Metropolitan University."
"In summary Mrs Pogonowska reiterated that Joseph, her son, lives at 8 Dobson Close and is likely to remain there for the time being as it is convenient for his needs at present. She said she intended to move back to 69 Balmore Street. She claimed to have paid all she owed to the Council and was even given a refund back in 1997. She considered that the Billing Authority have confused the issue and that their statements were unreliable."
"It is clear from Section 6 above that, if the evidence supports it, Joseph could be liable under subsection (e) being resident in the property.
"The Tribunal looked at Mrs Pogonowska's evidence and noted that there were a number of inconsistencies in her statements at the hearing and in some of the correspondence included in her written submission, in relation to both properties in the London Borough of Camden.
"With specific reference to 8 Dobson Close, Mrs Pogonowska had consistently claimed the property empty and she had paid the discounted rate of Council Tax from the date of ownership in 1995. Further, Westminster Council had billed Mrs Pogonowska at 24 Tresham Street..."
"...and confirmed that she had declared her son, Joseph, to be resident at Tresham Street from 1997. This statement had not been in question until 2004, that is, when Camden Council said she had claimed Joseph had been living at 8 Dobson Close since 1997.
"In support of her statement, Mrs Pogonowska provided telephone and electricity bills in respect of Dobson Close that were in Joseph's name. The electricity bills were dated 2005 and later, but the telephone bills were dated from 1999 with one account showing light usage during 1999, whereas from 2004 other accounts showed a higher level of charge suggesting more frequent use.
"Throughout it seems that Joseph has occupied the various addresses owned by his mother. It is not disputed that at some stage he has been an 'ad hoc' resident at 8 Dobson Close and may even have used it 'part time' to fit in with his lifestyle. However, the Tribunal noted that Westminster Council was advised that Joseph lived with his mother in 1997 and there had been no retraction of that statement to Westminster Council. The full Council Tax charge was being paid by her in respect of 24 Tresham Street therefore, it is reasonable to accept that at least two people are resident there. Mrs Pogonowska has referred to 'tenants' but no details were offered.
"Since 2004 the utility bills in Joseph's name suggest more strongly that he may now be using the property at Dobson Street more regularly, however, the credit check done by 'Experian' shows no other link to this address for Joseph. The Tribunal considered that the fact that Joseph may utilise 8 Dobson Close did not mean that he had changed his sole or main residence from the address that he shared with his mother at Tresham Street.
"The Tribunal noted that Mrs Pogonowska had made conflicting statements which have served to create confusion. Her statement to Camden Council in May 2004 claimed that her son was using both addresses at the time and she admitted to receiving correspondence herself at Dobson Close. Also Mrs Pogonowska did not advise Westminster Council that he had moved out of 24 Tresham Street until her letter received by Westminster in May 2005 (this was written at the insistence of Camden, according to Mrs Pogonowska) and as she did not claim a Single Person Discount from Westminster continuing to pay the full rate of Council Tax. It can only be assumed that they did not remove him from her account. Throughout, it appears that Mrs Pogonowska has made statements intended to extract the best advantage in respect of her liability to Council Tax on each of her properties.
"On balance the Tribunal considered that there was insufficient evidence to support Mrs Pogonowska's claim that Joseph, her son, had permanently changed his address from that of 24 Tresham Street in the London Borough of Westminster to that of 8 Dobson Close, in the London Borough of Camden during 1997. From the weight of evidence before it, the Tribunal determines that Mrs Pogonowska remains liable for Council Tax at Dobson Close and the appeal is dismissed."
"Since 2004 the utility bills in Joseph's name suggest more strongly that he may now be using the property at Dobson Street more regularly, however, the credit check done by 'Experian' shows no other link to this address for Joseph."