England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		20 February 2009

1. JUDGE RAYNOR: This is an appeal against the decision of the London North West Valuation Tribunal, dated 14 February 2008, when it found that the appellant, Mr Kinsley, was liable for council tax in respect of 1 Handley Page, London, NW9, for the period 1 April 2000 to February or March 2005. It had been the respondent's (the London Borough of Barnet) contention, that he was so liable and the amount of the liability is in the region of £4,300.
2. This matter has given rise to an amount of litigation that on any view is wholly disproportionate to the amount involved. It has given rise to a number of judicial review claims, to an appeal by way of case stated, to an appeal to the High Court against committal warrants, as well as to this appeal. The local authority would of course say that it cannot be criticised because it considered on reasonable grounds that Mr Kinsley was liable. Nonetheless, it seems to me regrettable that such a lot of public money has been spent in the pursuit of these claims, and at some stage one would have thought somebody would say: should we not take stock of this? That did not happen and it falls to me, therefore, to resolve what in the end is a relatively narrow issue.
3. As well as the statutory appeal, I am today concerned with a judicial review claim issued on 3 May 2007. I think it is sufficient if I deal only with the chronology since the date of the 2007 judicial review claim.
4. The decision to be judicially reviewed was said to be a decision that the applicant, Mr Kinsley, was liable to pay the sum of £4,300 or appear before magistrates on committal proceedings.
5. Mr Kinsley made a variety of complaints about how, in effect, the local authority was acting unlawfully, oppressively and in breach of his human rights, and the matter came before Underhill J on 21 June 2007. It appears to be at that stage that somebody said (and it may have been the judge himself) that if Mr Kinsley was disputing his liability for council tax then he would have to invoke the procedure set out in the statute; that is the procedure under Section 16 of the Local Government Finance Act 1992 which provides a structured approach for somebody to challenge the local authority contention that he is liable to pay council tax, the structure being that he may appeal to the Valuation and Community Charge Tribunal but only after he has first served a grievance notice under Section 16(4) of the Act and had a negative response from the local authority. If that happens he then is able to appeal to the Valuation Tribunal.
6. It was the realisation that that had not been done that prompted Underhill J to make the order that he made. The local authority undertook not to take any point regarding the claimant only then serving a grievance notice, and the application for judicial review was adjourned and there was a stay on further committal proceedings in the Magistrates' Court. Paragraph 3 of the order states:

"Liberty to the [second defendant] to apply on paper for this application to be dismissed and the stay to be lifted if the claimant has not, within 21 days raised a grievance regarding his alleged liability or if, following rejection of that grievance, the Claimant has not applied to the Valuation Tribunal within the time limit; such application to be made on notice to the Claimant and the Claimant to serve a response on the Second Defendant and the Court within 14 days."

Then it was provided in paragraph 5:

"The adjourned application be listed for a hearing, with substantive application to follow if permission is granted."

7. Mr Kinsley did serve the grievance notice. That notice is dated 7 July 2007 and it protested his liability to pay council tax. He says in his letter:

"I have never had an opportunity to challenge the issue of liability previously. The basis of my appeal as observed by at least three various judges of the High Court is that I am not liable for payment of those taxes because, (1) I was not in occupation at the relevant times, (2) the liable persons occupied the property at the relevant time, and (3) the council was fully aware that the liable persons occupied the property but deliberately ignored it."

It is noticeable that there is no mention of the word "resident" in that document.

8. On 28 August 2007 the council replied fully, stating:

"You say that you are not liable for the following reasons:

Not in occupation at the relevant times.

Liability has been designated to you in accordance with Section 6 of the Local Government Act 1992 that provides that an 'owner' in relation to any dwelling, is defined as a person who has a material interest in the whole or part of the property.

Our investigations show that you are the legal owner of the above property ... and I understand you are not disputing this fact.

To dissolve your liability to pay Council Tax, you would need to prove that this property was not your sole or main residence and there was another person in the property and that the property was their sole or main residence.

You would also need to prove that you were subject to a Council Tax charge elsewhere and that you were paying that charge."

Then under the heading "Liable person/s occupied the property at the relevant time":

"You have not clearly stated the dates that you dispute, just the financial years. Have you been made liable from 1st April 2000 and you need to state the exact period you are disputing by providing relevant proof of your Council Tax liability for the said period ... Demand notices were issued to you in November 1999, advising you of your liability."

Then under the heading "The Council was fully aware that the liable person/s occupied the property but were deliberately ignored", it is stated:

"The council have tried on numerous occasions to visit the above premises to ascertain occupancy.

In June 2000 a telephone call was received, but the person refused to answer significant questions ...

My Visiting inspectors and external bailiff companies have visited the property and never found proof of an established tenancy, however the information did they obtain has led us to believe that the above property is let on a room basis only, and this also raises a Council Charge tax to the owner.

Post has also been returned from the property marked as refused."

After then referring to where the appellant says he lived, it concludes:

"... you have never provided sufficient documentary evidence that the above property was the sole or main residence of another person/s and that you were subject to a council tax charge elsewhere for the disputed period. ...

I therefore cannot find any grounds at this late stage to amend the decision ...

You have a further right of appeal by writing to the Valuation tribunal ..."

9. That letter thus set out a very full response and a correct analysis of the statutory structure under Section 6 of the 1992 Act, if somewhat simplified. The terms of that letter make it all the more difficult for me to understand why the local authority adopted a quite different approach when the matter came before the Tribunal.
10. Before dealing with the Tribunal decision I now mention the statutory scheme. Section 6(1) of the 1992 Act provides:

"(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."

In other words there is a step ladder, and you start at the top and you go down. The first person who falls within a step, or a numbered subparagraph, is liable. The first subparagraph, which is (2) is:

"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 ..."

It goes down paragraphs (b), (c), (d) and all of those paragraphs refer to "residents". Then, if there is no such resident, the person liable is "(f) …. the owner of the dwelling."

11. "Resident" itself has a defined meaning. Resident in relation to any dwelling means:

"... an individual who has obtained the age of 18 years and has his sole or main residence in the dwelling."

There can thus be some people who are occupying who do not qualify as resident within that statutory definition.

12. The matter is further complicated by the fact that there are provisions under which, although there is a liable person under Section 6, the premises themselves are exempt, and the categories of exempt premises are set out in the Council Tax Exempt Dwellings Order 1992, by reference to again a number of lettered paragraphs.

The class in fact goes down to (w) in this Order and among the exempt dwellings, as well as unoccupied dwellings which have a period of exemption limited by time unless other qualifications appear, there is class (n), which is:

"(1) A dwelling which is either (a) occupied by one or more residents all of whom are relevant persons; (b) occupied only by one or more relevant persons as term-time accommodation."

It should be noted that paragraph 1(b) does not refer to "resident". A relevant person is defined as a student, among others.

13. The matter was then the subject of an appeal to the North West London Valuation Tribunal. The appeal was received in October 2007, oral evidence was heard on 29 January 2008, and the decision letter followed on 14 February 2008.
14. Whereas the local authority, in its reply to the grievance letter, in setting out the basis of liability, had in effect followed the Section 6 steps, at the appeal, for whatever reason, the local authority did not present its case on that basis. The local authority there presented its case on one ground only, namely, that Mr Kinsley was liable under s.6(2)(a) of the 1992 Act as the resident owner of the property. In other words it was the local authority's case that there was a resident in the property over the relevant period and that was Mr Kinsley. It was not alleged that Mr Kinsley was liable under s.6(2)(f). The local authority could have chosen to present its case in the alternative but chose not to do so. Why that is is a matter of speculation. Mr Kinsley rebutted that case by saying (a) he was not a resident, and (b) that other people were. The way that the case went in the Tribunal was to my mind extraordinary, given that both the local authority and Mr Kinsley were agreed about one thing, namely that there was/were a resident(s) in the property over the period. The local authority said it was Mr Kinsley. Mr Kinsley said: no, that is not right, others were resident. At no stage during the hearing was it ever suggested to Mr Kinsley, either by the local authority or the Tribunal, that it was immaterial whether or not he was resident elsewhere because if he could not show that there were residents in the property he would be liable under subparagraph (f).
15. In the circumstances, one would have thought that given the way the case was presented on behalf of the local authority, the Tribunal's decision would have been an easy one: has the local authority made out its case that Mr Kinsley was resident in the property over the relevant period? The local authority did not invite the Tribunal to proceed on any other basis; and one must assume that it had its reasons for adopting this course.
16. The decision letter recites the fact and records that the local authority was not satisfied that Mr Kinsley resided at the addresses that he had given over the period and that

"... despite numerous enquiries and visits the Billing Authority had been unable to establish whether the dwelling had been let out, and [the authority] asked the tribunal to note that Mr Kinsley had provided no conclusive details of the tenants who he had suggested he had let the appeal dwelling to and who allegedly occupied it during the period from 1999 to March 2005."

It was also said that he had failed to provide reliable details of where he was resident. Then in the passage I have already referred to:

"... having established that Mr Kinsley was the owner of 1 Handley Page, and in the absence of firm evidence that he resided elsewhere, it was the Billing Authority's view that he should be liable for Council Tax in respect of the dwelling under Section 6(2)(a), namely as a resident with a freehold interest in it. Therefore Mr Rees asked the Tribunal to dismiss the appeal."

17. The appellant set out his case. He informed the Tribunal than the premises had been let to various tenants during the period and he was aware that student friends of the tenants had also occupied the dwelling. He was surprised that the billing authority continued to suggest that he occupied the dwelling himself. During the period a Miss J Bijah and Miss Cheung had occupied the dwelling, and he also suggested that some of the staff of the billing authority were fully aware that he had not occupied it. It was his opinion that the billing authority had presented no evidence to suggest that the dwelling had been vacant during the period in dispute. It was his contention that the billing authority's evidence had confirmed that the dwelling had been occupied during this period, and he asked the Tribunal to note the contention that he was liable under subparagraph (a) as a freeholder. It was his view that, in the absence of evidence that he personally occupied the dwelling, the appeal should be allowed.
18. The Tribunal then expressed the reasons for its decision in the last three pages. It set out the provisions of Section 6 and the steps in (a) to (f) and noted that if no resident person was identified, the owner would be liable. Having weighed the evidence in respect of whether the appellant was resident, the Tribunal said it:

"... accepts the appellant's contention that the Billing Authority presented no evidence to establish that he was personally resident at the appeal dwelling. Thus, in the absence of firm evidence to suggest that the appellant personally occupied the appeal property during any period between 1998 and 2005, the Tribunal accepts the appellant's contention that he should not be held liable under Section 6(2)(a)."

One would have thought that, given the way that the appeal had been conducted, that would be the end of the matter. But it was not, because the Tribunal then noted:

"The appellant's contention that if it found that he was not liable ... as argued by the Billing Authority, the appeal should be allowed. However, it is the Tribunal's opinion that it should extend its enquiry to ascertain whether any resident satisfying subparagraphs (b) to (e) ... can be identified ..."

It is to be noted that the local authority, who was the taxing authority, did not ask the Tribunal to do that. The Tribunal:

" ... noted and accepted the appellant's contention that the Billing Authority did not argue that the [dwelling] was vacant and unoccupied, but it was the Tribunal's view that it was presented with no persuasive evidence to suggest that any particular person occupied the appeal dwelling as their sole or main residence.

So the Tribunal itself seized on the statutory definition of "resident" when that was a matter that was never aired at all during the Tribunal proceedings and stated that

"the Tribunal accepts that there was some evidence presented to it to suggest that, on some occasions at least during the period, some individuals were staying at the appeal dwelling."

But on balance it concluded that whilst some people may have stayed at the appeal dwelling during the period, as evidenced at the times of the Billing Authority's visits to the dwelling, no one was actually resident in it, and therefore the appellant was liable under subparagraph (f) and his appeal was dismissed.

19. The matter then proceeded in the Administrative Court with the claimant seeking, as I understand it, to advance his judicial review claim. In July 2008 the matter came before Mitting J, who had reservations as to whether or not the decision of the Tribunal was appealable, although he made it clear when giving his judgment that he expressed no view on the matter.
20. It was in the light of his reservation as to whether or not the decision might be appealable that Mitting J made the order of 23 July 2008. He ordered that by 4.00 pm on 31 July the claimant must lodge the present appeal and set out his reasons why the court should not dismiss the appeal, given that it was not made within four weeks of the notification of the Tribunal's decision; that, in the event that no such appeal was lodged, permission to apply for judicial review would be refused; if it was lodged the appeal was to be listed for an oral hearing with the judicial review proceedings, which is where we are today.
21. The appeal was duly lodged on 31 July 2008 and it falls for my determination today.
22. The decision of Tribunal, as I have already indicated, was a decision dated 14 February 2008. The appeal to this court is brought under the provisions of the Valuation and Community Charge Tribunals Regulations 1989. Regulation 51(1) provides that an appeal lies on a question of law arising out of a decision or order made by a tribunal on appeal and may be made by any party to an appeal. Subparagraph (2) provides:

"Subject to paragraph (3)"

-- which does not apply in this case --

"an appeal under paragraph 1 may be dismissed if it is not made within four weeks of the date on which notice is given of the decision order that is the subject of the appeal."

23. That provision is material here because Mr Kinsley has not filed his appeal within the four-week period there mentioned, the decision of the Tribunal having being made on 14 February 2008 and the appeal not being lodged until 31 July; so it is some 4 ½ months late.
24. Prior to the coming into force of the Civil Procedure Rules the matter was governed by the Rules of the Supreme Court, and the leading case was Regalbourne v East Lindsey District Council in 1993. At the time of that decision the relevant regulation was in the same terms as Regulation 51(1) of the 1989 Regulations. However, under the Rules of the Supreme Court there was in addition the requirement of O.55.r42 that the notice of appeal must be served and the appeal entered within 28 days after the date of judgment. In other words the rule added a gloss to the statute as to the time for lodging the notice of appeal: whereas the statute did not create a time limit but merely gave the court power to dismiss if the four week time limit was not complied with, the rule made it mandatory to comply with the four-week period, although the court of course had a discretion to extend or abridge that time. That court in Regalbourne set out the principles that applied when considering the exercise of the discretion to extend time.
25. Contrary to what I had thought when delivering judgment ex tempore, the position under the CPR is the same as under the RSC and the principles set out in the Regalbourne decision are still applicable. This is because para 17.3 of the PD to Pt 52 provides that the appellant's notice must be filed within 28 days of the date of the decision complained of. It follows that in deciding whether to exercise the discretion to extend time one must consider various factors, including the strength of the appeal, and the other factors that were stressed as relevant in the Regalbourne decision. I have in mind particularly in that connection questions of prejudice to good administration, it being stated

"... that public law challenges to decisions of tribunals should be made within a limited time scale, the courts will always be reluctant to extend time ...[and] if time is not extended, there is prejudice to the potential appellant because he or she loses his right to appeal and the prejudice will be greater if the intended appeal has good prospects of success. But in most cases that is unlikely to be of great weight."

26. Now in this case there has not been taken as a preliminary point the question of whether I should summarily dismiss the appeal under Reg 51(2). I have heard the appeal on its merits, and I am of the view that it is well-founded and that there has been an injustice done to Mr Kinsley in this case. That being the case, it would be quite wrong in my judgment to exercise my discretion so as to refuse to extend time. Further, Mr Kinsley is a layman. Although, as Mr Cannon says, the order of Underhill J raised the matter of an appeal to the Valuation Tribunal, Mr Kinsley, as a layman, has had to grapple with the multiplicity of different means of potential legal challenge to the orders and decisions of which he complains. I note, for example, in respect of liability orders that there are decisions of the court that say that in general the appropriate method of challenge is an appeal by way of case stated, and not judicial review. However it is plain that if one wants to challenge the actual tax liability you must do that by means of the statutory appeal procedure under Section 16 of the 1992 Act. True it is that Mr Kinsley was put on the right road by Underhill J, but I do not hold it against him that he overlooked the need in the particular circumstances of this case to have the appeal notice filed within four weeks and given my view on the merits it seems to me right in this case to extend the time for filing notice of appeal to the time when it was filed.
27. As to the underlying merits of the appeal, given the way the local authority conducted its case before the Tribunal, I do not think that it was any business of the Tribunal to extend its enquiry in the way that it did. The local authority was well able to decide, as the taxing authority, how it wished to present its case. It made the positive decision that it would proceed against Mr Kinsley in one way only, and that is under s.6(2)(a). Mr Kinsley had the legitimate expectation, given that that was the way that the case had been presented and defended, that he would win his appeal if the local authority failed to make good its case.
28. Mr Cannon submits that apart from the question of legitimate expectation, which itself to my mind would justify allowing the appeal, there is no actual prejudice to Mr Kinsley here because the issue of residence was the issue that had to be determined before the Tribunal. The local authority said Mr Kinsley was the resident. Mr Kinsley said no, other people were, and the local authority failed to prove its case. But so did Mr Kinsley. So it is said that if Mr Kinsley did not prove that anybody else was resident, it followed that he was liable as owner under s.6(2)(f) and his appeal to the Tribunal failed.
29. I do not think that the matter is as simple as asserted by Mr Cannon. The question of the distinction for the purposes of the statute between an occupier and a resident is a matter of statutory interpretation and analysis of the facts, with "resident" being expressly defined. As already stated when considering the exemption position, a claim for exemption can arise under the same statutory provision concerning students regardless of whether the occupier qualifies as a resident and a claim for exemption can also arise in the case of empty premises. The distinction between occupation and residence for the purposes of Council tax was a matter that was never raised before the Tribunal and thus was never addressed in submissions or evidence. If the distinction was to form the basis of the Tribunal's decision, I have no doubt that it should in fairness to Mr Kinsley have been raised, thereby affording him the opportunity to consider and address the issue and its ramifications.
30. However, even if I am wrong about that, as I have said it seems to me that there is the question of legitimate expectation. The local authority chose to prosecute its case before the Tribunal on the narrow basis stated above, and it seems to me that it could have no legitimate complaint if, having failed to make out its case on that basis, it lost the appeal before the Tribunal.
31. For those reasons I allow this appeal. It would be open to me of course to remit the matter to the Tribunal. I have not heard argument about that, but in view of the length of time that has elapsed since the alleged liability accrued it would seem to me to be quite wrong to remit it because we are concerned with facts occurring years ago. True it is that in January 2008 the matter was already years old, but we are now a year on; and it seems to me -- and I will hear Mr Cannon if he wishes to argue this – that it would be quite wrong in the exercise of my discretion now to do anything other than quash the decision and allow the appeal.

MR CANNON: My Lord, I think I have to make submissions about that and I make them with your Lordship's words ringing in my ears and they will be brief; but I have to make them.

JUDGE RAYNOR: And also with consideration, which I hope the local authority bear in mind, about proportionality.

MR CANNON: My Lord of course. I am sure that your Lordship will understand why I rise to my feet and make these points. It may be that there needs to be decisions take in due course but I don't want to shut out the breadth of that decision-making exercise, if I could put it that way.

My Lord, where in effect the finding is that the prejudice to Mr Kinsley has been the basis for allowing the appeal here, and we are in a realm of legitimate expectation, he has not had a chance to put his case, which is in effect the thrust of your Lordship's judgment. The proper and, in my submission, only approach there is to allow him an opportunity to put that right, give him his remedy. The proper way of doing that is by remitting it in my submission. The Valuation Tribunal is well capable, as we have seen, of dealing with those questions which are questions of fact. There has been no opportunity for Mr Kinsley to do that here, nor would it be proper for him to do so, in my submission. So the proper approach is to remit. I rely additionally on the fact that this is a matter of who is liable for council tax.

Now if your Lordship's order is to allow the appeal and not remit it, in effect quashing, then there is council tax effectively held on trust for the council taxpayers of the London Borough of Barnet which has not been collected for a period of five years. It is a significant sum, although I take your Lordship's words about proportionality and it ought to be remitted.

JUDGE RAYNOR: It would be a wholly wrong exercise of my discretion to remit this matter; first, for the reasons that I have already mentioned about the difficulty of proving things years after the event. Secondly, because the local authority itself chose how to run the case, and it is on that basis that I have allowed the appeal. Thirdly, because of the amount involved. It is -- I will choose my words carefully -- regrettable that a substantial amount of public money has been spent over the years, because litigation has been going on since I think 2004 or even earlier over an alleged liability of £4,300 or thereabouts. Now is the time to stop. So I simply allow the appeal and I quash the order, and I would imagine that makes judicial review completely otiose, doesn't it?

MR CANNON: My Lord, as your Lordship sees from my skeleton I think this was otiose anyway. I don't know why Mitting J kept it alive. It seems to me that this would have dealt with this anyway.

JUDGE RAYNOR: Subject to any question of whether or not you want to appeal my decision, is this the end of the matter?

MR CANNON: The finding now is that he was not liable.

JUDGE RAYNOR: And that means everything goes.

MR CANNON: We cannot commit him. We cannot get that money back, unless we find another way of doing so, but as I say I do not have instructions on that.

JUDGE RAYNOR: So judicial review proceedings are now completely academic.

MR CANNON: Wholly so.

JUDGE RAYNOR: Mr Kinsley, you have won.

THE APPLICANT: Thank you, my Lord.

JUDGE RAYNOR: I propose to refuse permission for judicial review because it is academic.

THE APPLICANT: In of order way, my Lord, without -- I would not pursue that line, but is the court willing to say judicial review was refused? Can the court simply make no orders?

JUDGE RAYNOR: No, what I am simply going to do is say this. I refuse permission only because the allowing of appeal has made the application for judicial review academic.

THE APPLICANT: Thank you, my Lord.

JUDGE RAYNOR: You have won your case.

THE APPLICANT: Can I, please, make just one request, my Lord. This case, it doesn't go without saying, it has cost me a great deal of stress and has cost me a great deal of money. I run a small business. I have to close every time I come here. And as your Lordship rightly pointed out this started since 2004 and the local authority has had time throughout to stop this proceeding. And in fact, my Lord, if I mention this in my bundle it is there, it has never been disputed. At some point in 2004 the local authority actually said they will no longer pursue this matter, they did say that through the learned clerk, Mrs Flint.

JUDGE RAYNOR: I can't get involved with that, Mr Kinsley. The only costs that I think it would be proper to order, because of the way the proceedings have gone, would be the costs of the appeal. You are a litigant in person. If you have a complaint about financial damage then you would be well advised to consider applying to local government Ombudsman for maladministration.

THE APPLICANT: Thank you, my Lord.

JUDGE RAYNOR: But I think given you are a litigant in person and the actual appeal has not taken that much time, I would have though the fair thing to say is there should be no order as to costs in the appeal.

THE APPLICANT: But there are legal costs -- in connection with the appeal. The application which I have made, at every single stage I have paid for them.

JUDGE RAYNOR: Is it sufficient if I say that he should have his costs of the appeal to be assessed? Because he is a litigant in person and there are strict rules.

MR CANNON: My Lord, if your Lordship says that then it is for him to show that there are costs. In principle I can't resist that.

JUDGE RAYNOR: What I shall say is you should have the costs of the appeal, to be assessed in default of agreement.

THE APPLICANT: Thank you, my Lord.

JUDGE RAYNOR: But you should be aware that as a litigant in person you are going to be very severely circumscribed as to what they are. You will obviously get your cost of issuing the appeal notice.

THE APPLICANT: That's all I want, my Lord. Can I please make one final request. Can I please, my Lord, because of the serious economic setbacks, can I please ask that the transcript of this judgment be provided at public expense. That is my only request, my Lord, and think that is a fair order.

JUDGE RAYNOR: Yes, I order it.

THE APPLICANT: Thank you, my Lord.

MR CANNON: My Lord, I am sure it is clear to Mr Kinsley but where my answer was: yes, that's the end of the matter, that's the end of this matter. There are other matters in the court which are going to be heard I think on 9 March, but they are still live.

JUDGE RAYNOR: They don't affect the council tax liability at all, do they?

MR CANNON: No, they are mostly about business rates.

JUDGE RAYNOR: But this is the end of this.

MR CANNON: Of this matter.

JUDGE RAYNOR: You have no further applicants to make, I imagine.

MR CANNON: I am grateful, my Lord.

JUDGE RAYNOR: Mr Kinsley, you have argued the matter in your skeleton argument entirely fairly and I am grateful for the way you have presented the case in the skeleton which I have read. I am particularly grateful to you, Mr Cannon. Because this an area that I needed educating about.