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
		18th January 2010

1. MRS JUSTICE COX: This appellant, who is appearing in person before me, appeals against a decision of the London North West Valuation Tribunal, dated 14 July 2009, refusing to review its substantive decision of 16 April 2009. The appeal is effectively against the substantive decision and it has been dealt with on that basis before me.
2. The appeal arises in this way. On 10 October 2007, the London Borough of Enfield, who appear at this hearing as an interested party, decided that this appellant, as owner of the property at 266 Ordnance Road, Enfield EN3 6HF ("the property"), was liable for the payment of council tax between 1 August 2002 and 17 January 2008. The appellant challenged this decision, contending that the property was let to a Ms Banyure between 2002 and 2007 and that she as tenant, and not he as owner, was liable for the payment of council tax during that period. He therefore appealed to the Valuation Tribunal.
3. His appeal was allowed in part on 16 April 2009. After hearing the evidence, the Tribunal concluded that Ms Banyure was resident at this property from 1 September 2002 to 30 August 2003 and that the appellant was not liable for council tax during that period. However, they found on the evidence (1) that she had not been resident at this property from 31 August 2003 until 17 January 2008 and (2) that there was no evidence to suggest that anyone else was residing at the property during that time, so that the appellant as owner was liable for payment of the council tax due.
4. On 15 May 2009, the appellant sought a review of the Tribunal's decision. On 14 July, the Tribunal refused that request on the basis that the appellant had not made out any of the statutory grounds which would permit them to carry out a review.
5. The appellant is now appealing against the Tribunal's decision to this court pursuant to regulation 51 of the Valuation and Community Charge Regulations 1989, which was then in force. Regulation 4 of the Valuation Tribunals (Consequential Modifications and Saving and Transitional Provisions) (England) Regulations 2009 provides for the completion of undetermined appeals after 1 October 2009, when the new regulations came into force and regulation 51 was repealed. Such appeals are to be dealt with in accordance with part 4 of the 1989 regulations as modified by regulation 3(3) of the 2009 regulations.
6. It is important first to clarify the basis of this appeal. Under the regulations, the appeal is against the decision of the Valuation Tribunal, not against the original decision of London Borough of Enfield. I emphasise that because, in his skeleton argument (and it may be that there was some misunderstanding on the appellant's part following discussions with the Administrative Court Office) the appellant describes it as including an appeal against the original decision of the London Borough of Enfield, dated 10 October 2007. Much of his written argument addresses the facts and the evidence and makes a number of criticisms of the Council.
7. The appellant's only right of appeal is against the decision of the Valuation Tribunal pursuant to regulation 51. Further, regulation 51(1) provides:

"An appeal shall lie to the High Court on a question of law arising out of the decision or order which is given or made by a tribunal on an appeal and may be made by any party to the appeal."

Thus this court can interfere with the decision of the Valuation Tribunal only if an error of law is disclosed. There is no right of appeal to this court from the original decision of the London Borough of Enfield, and this court is not conducting a judicial review of that decision or of Enfield's approach to the investigation of this case. I have therefore concentrated on the decision of the Tribunal in considering the complaints made by this appellant.

8. Regulation 51(2) provides for the dismissal of an appeal if it is not made within four weeks of the date on which notice is given of the decision or order which is the subject of the appeal. As Ms Parry, appearing on behalf of the interested party, has pointed out in her skeleton argument, this appeal was not made within four weeks of that date. She takes no time point, however, due to the provisions of regulation 51(3), pursuant to which the four week time limit runs from the date of the decision on review if such a review was sought, as it was in this case.
9. I turn then to the issues in this appeal. The Tribunal set out in some detail the evidence and the respective contentions being advanced by both parties before it. The dispute centred effectively on whether Ms Banyure was resident at the property between 1st August 2002 and 17th January 2008 and, if so, whether she was the only adult resident at the property throughout that period.
10. Having heard the evidence, the Tribunal set our their reasoned decision on pages 5 to 6 as follows:

"Decision and Reasons:

The Tribunal, having carefully considered all the evidence, reaches the following conclusions.

The Tribunal notes the appellant's contention that the Billing Authority did not correctly follow the provisions of Section 18(1)(2), Section 19 and Section 20 of the Council Tax (Administration and Enforcement) Regulations 1992.

However, while the Tribunal notes the circumstances in which the appeal arose, it is satisfied that it must restrict itself to establishing the correctness, or otherwise, of the Billing Authority's determination regarding liability for payment. Further, the Tribunal is satisfied that it should not comment on matters, such as those relating to the service of demand notices, which fall outside its jurisdiction.

The Tribunal notes the appellant's contention that the appeal property was let to Ms Banyure from 2002 to 2007, and that although the term of the tenancy was initially for one year, there was an implied condition of an automatic renewal of the tenancy unless a party gave notice of termination.

Tribunal also notes the Authority's contention that it was questionable whether Ms Banyure had been resident at the property. However, having noted the existence of a tenancy in the name of Ms Banyure, the Tribunal considers that the tenancy agreement can be accepted as evidence of her being resident at the appeal property from 1 September 2002 to 30 August 2003.

While the Tribunal notes the appellant's contention that Ms Banyure continued to reside at the property after August 2003, it considers that it has not been provided with any evidence by the appellant to support this view. However, the Tribunal notes and accepts the Authority's evidence that Ms Banyure was a resident of Broxbourne Council. In particular, it notes that a report by Experian credit check on Ms Banyure indicates a number of financial transactions at an address in Broxbourne.

The Tribunal notes the Authority's further contentions that several other individuals lived at the appeal property during the contended period and that Mr Hakeem himself had been resident at the property. However, although the Tribunal notes the contents of the Experian credit report, and while the financial transactions carried out at the appeal property seem to support the view that several other individuals lived at 266 Ordnance Road, it considers that the Billing Authority did not provide any conclusive evidence that the house had been in multiple occupation or indeed if Mr Hakeem had been resident at the property.

In considering liability, the Tribunal notes the appellant's contention that he came lowest under the hierarchy of liability. However, the Tribunal notes that under Section 6 of The Local Government Finance Act 1992, the liable person was the resident of the property and that where there was no resident, liability for payment rested with the leaseholder or non-resident owner of the property. Thus, having considered the evidence provided by the parties, the Tribunal takes the view that there is no evidence to suggest that Mr Hakeem was not resident at the appeal property.

Concluding its deliberations, the Tribunal considers that the appellant has not provided it with sufficient evidence to establish his case or to supplement what it considers to be his unsupported statements. Consequently, the Tribunal is unable to accept the appellant's assertions and, as a fact finding Tribunal, is of the opinion that it is entitled to reject the appellant's statement that Ms Banyure had continued to reside at the property after 2003.

Therefore, having carefully considered and weighed the evidence alongside the relevant legislation, the Tribunal is satisfied that for the period 1 September 2002 to 30 August 2003, liability for payment of council tax rests with Ms Banyure, as the person who was resident at the appeal property, under Section 6(a).

The Tribunal considers that from 31 August 2003 to 17 January 2008, Ms Banyure was no longer resident at the appeal dwelling. However, the Tribunal has not been provided with any evidence to suggest that the dwelling had been let to someone else during this period. Consequently, Mr Hakeem, as the owner of the property must be held liable under Section 6(f).

Further, the Tribunal notes Mr Hakeem's contention that he should not be made to pay council tax retrospectively, however, this is a matter for the Magistrates Court to determine, not the Tribunal. The Tribunal is cognisant that under Section 8(3) Local Government Finance Act 1992 it states that where on any day that this subsection has effect in relation to a dwelling (namely the designation that the dwelling is a house in multiple occupation), the owner of the dwelling shall be liable to pay the council tax in respect of the dwelling and that day.

Therefore, in the circumstances, the appeal is allowed in part."

The statutory framework

11. The payment of council tax is governed primarily by the Local Government Finance Act 1992. Liability for payment is provided for in section 6, which, so far as is relevant, provides as follows:

"(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.

(4) Subsection (3) above shall not apply as respects any day on which one or more of the persons there mentioned fall to be disregarded for the purposes of discount by virtue of paragraph 2 of Schedule 1 to this Act (the severely mentally impaired) and one or more of them do not; and liability to pay the council tax in respect of the dwelling and that day shall be determined as follows—

(a) if only one of those persons does not fall to be so disregarded, he shall be solely liable;

(b) if two or more of those persons do not fall to be so disregarded, they shall each be jointly and severally liable.

(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;

'secure tenant' means a tenant under a secure tenancy within the meaning of Part IV of the [1985 c. 68.] Housing Act 1985;

'statutory tenant' means a statutory tenant within the meaning of the [1977 c. 42.] Rent Act 1977 or the [1976 c. 80.] Rent (Agriculture) Act 1976."

12. The first decision as to who is liable for payment is made by the Council, referred to in the regulations as the "billing authority" in accordance with the Council Tax (Administration and Enforcement) Regulations 1992. A demand notice must be served pursuant to regulation 18. Regulation 19 provides:

"(1) The demand notice is to be served—

(a) on or as soon as practicable after the day the billing authority first sets an amount of council tax for the relevant year for the category of dwellings within which the chargeable dwelling to which the notice relates...

(2) For the purposes of paragraph (1), 'category' shall be construed in accordance with section 30(4) of the Act; and where a demand notice is served before 1st April 1993, a dwelling shall be treated as included in the category in which, in the opinion of the billing authority, it will be included on 1st April 1993."

13. An aggrieved individual may appeal against the billing authority's decision in accordance with section 16 of the 1992 Act, which provides as follows:

"(1) A person may appeal to a valuation tribunal if he is aggrieved by—

(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."

14. It is not in dispute that the Valuation Tribunal will consider the matter afresh, and that it therefore rehears and evaluates the evidence. The Tribunal is not restricted to a consideration of whether the billing authority acted reasonably (see the case of Regentford Ltd v Shepway District Council [2006] EWHC Admin 3200).
15. It is clear from their decision of 16th April 2009 that this is what the Tribunal did.

The appeal

16. Mr Hakeem, the appellant, who has presented his case ably and succinctly, raises essentially two grounds of appeal against the Tribunal's decision. Firstly, he challenges the substantive decision on the following four bases, and I summarise the main heads of argument which he developed in some detail orally before me today.

(1) The Tribunal ignored or misdirected themselves as to the provision for automatic renewal contained in clause 2 of Ms Banyure's tenancy agreement, and erroneously concluded that she was not resident at the property and not liable for payment of council tax after August 2003.

(2) There was insufficient evidence before the Tribunal to enable them to conclude that the appellant was liable for payment of council tax during the period 2003 to 2008.

(3) the evidence that the Tribunal relied upon was inconsistent, contradictory and unsatisfactory and the Tribunal erred in relying upon it in order to decide as they did.

(4) The appellant was presented with a bundle of documentary evidence being relied upon by the London Borough of Enfield only shortly before the Tribunal hearing was about to commence and he had insufficient time to respond adequately to the evidence being relied upon.

I deal with these submissions in turn.

17. Firstly, it is clear to me from their decision that this tribunal had a copy of the relevant tenancy agreement before them and that they had carefully considered its contents. Indeed, the partial success of the appeal was based on their acceptance of this tenancy agreement as demonstrating Ms Banyure's residence at the property and liability for payment of council tax between 2002 and 2003. The Tribunal was obviously aware of the provisions of clause 2 because they referred expressly to the appellant's arguments as to the effects of the clause providing for automatic renewal on page 5 of their decision, even if they misdescribed it as an argument based on there being an implied, rather than an express, condition of renewal.
18. As set out above, regulation 6(5) defines the owner as someone who has a material interest in the dwelling and by regulation 6(6) this means "a freehold interest or a leasehold interest which was granted for a term of six months or more". Quite how this provision marries up with regulation 6(2)(b) and the requirement of residence is unclear and I have not heard full argument on the point. However, in my judgment, this does not present a difficulty in this appeal. In this case, this Tribunal clearly asked themselves whether Ms Banyure's tenancy was in fact continuing beyond the time that they had found it to exist, and whether someone else was resident at this property after 2003.
19. Given the facts of this case, and the fact that we are concerned with an assured shorthold tenancy, I agree with Ms Parry that the Tribunal was entitled to approach the matter in this way and to ask themselves these questions. In my judgment, no error of law is disclosed in their reasoning so far as the treatment of the tenancy agreement and the residence issues are concerned. The questions they posed were the essential questions arising for determination in this case.
20. Secondly, the appellant's argument that there was insufficient evidence to enable this tribunal to decide as they did is in my judgment unsustainable. Ultimately, this Tribunal found that the appellant had provided no or no satisfactory evidence in support of his contention that Ms Banyure continued to reside at this property after August 2003. They also (a) accepted showing evidence that she was a resident of Broxbourne Council for at least part of the relevant period; and (b) found no conclusive evidence that the house had in fact been in multiple occupation, or that the appellant had himself been residing in the property for the reasons they gave. Thus the Tribunal concluded that this appellant had not provided sufficient evidence to establish his case, and that liability for the payment of council tax for the relevant period rested with him as the owner of the property. This, in my judgment, is a finding they were entitled to come to on the evidence which was before them.
21. The appellant's third complaint as to the inconsistency or contradictory nature of the evidence before the Tribunal I can deal with shortly because, absent an allegation of perversity, which is not made, an evidential challenge of kind does not permit this court to interfere with the decision of the factfinding tribunal after considering and evaluating all the evidence placed before them.
22. In relation to the appellant's fourth complaint, he does not suggest that he applied for an adjournment at the time, to enable him to respond more fully to the evidence which had been placed before him only shortly before the hearing began. Further, it is clear to me that the Tribunal did not approach the London Borough of Enfield's evidence uncritically or indeed accept it in full. On analysis, they accepted the appellant's arguments in part based on the evidence of the tenancy agreement and residence at the property by Ms Banyure between 2002 and 2003. There is no substantive error disclosed as a result of the Tribunal proceeding to deal with this case on the day of the hearing and it is clear that they heard and carefully considered the detailed contentions then being advanced by this appellant.
23. Insofar as the appellant has this morning drawn my attention to a letter sent by Ms Banyure to the interested party on 15th May 2009, after the Tribunal's decision, this did not seem to me to assist his case, since she referred in that letter to having stayed at this property for only two years and she asserted that she was not in fact a tenant in 2003.
24. In my judgment, the Tribunal carefully weighed all the evidence placed before them. It is clear from reading the decision as a whole why the appellant lost his appeal and the judgment is clearly and sufficiently reasoned so as not to permit of interference by this court. For these reasons, the first ground of appeal fails.
25. The second ground advanced relates to late service of the demand notices and retrospectivity. The appellant contends that the authority did not serve the notices as soon as practicable, as required by regulations 18 and 19, and that the Tribunal erred in deciding that they had no jurisdiction to determine this issue.
26. As is clear from the final, substantive paragraph of their decision, the Tribunal held that they had no jurisdiction to determine this issue, it being a matter for the Magistrates' Court to determine. As a matter of law, this is correct, as is clear from the decision of Walker J in the case of Hardy v Sefton [2006] EWHC 1928 Admin, with which I entirely agree. Having been referred to his analysis at paragraphs 41, 46, 51 and 52 of the judgment, I agree, and for the reasons which he there set out, that the Valuation Tribunal has no jurisdiction to investigate the question whether the billing authority was in breach of regulations 18 and 19. This jurisdictional issue, as it seems to me, is not dependent on the question whether the Magistrates' Court has or has not considered it, as this appellant contends, the court in this case apparently not having considered the matter. Ms Parry's submission, that the fact that the point may not have been raised in the Magistrates' Court cannot bestow upon the Valuation Tribunal a jurisdiction which it simply does not have, is entirely correct.
27. Whilst the final sentence of the paragraph in the decision where the Tribunal deal with jurisdiction seems to relate to another matter and is not entirely clear, I find no error of law in the clear finding in the first sentence that they could not determine this matter as a matter of jurisdiction. For all these reasons, therefore, this appeal must be dismissed.
28. Thank you. Now, are there any other applications?
29. MS PARRY: There is an application for costs, my Lady. I do not know if a costs schedule made it to you.
30. MRS JUSTICE COX: If it did I do not have it to hand. Could you pass it up?
31. MS PARRY: I apologise. Mr Hakeem has seen it.
32. MRS JUSTICE COX: Thank you very much. Yes. Are there any particular matters you want to draw my attention to?
33. MS PARRY: No, my Lady. I will deal with any points you want me to address.
34. MRS JUSTICE COX: Thank you. Now, Mr Hakeem, what do you want to -- you have seen the bill of costs?
35. THE CLAIMANT: Yes. May I approach the court, your Ladyship?
36. MRS JUSTICE COX: Of course.
37. THE CLAIMANT: I would like an opportunity to seek permission or leave for appeal, this decision, because a document I have just taken out of my bag was not actually considered, you know, before you ordered for recess and that was the copy of the Experian credit report for Ms Banyure.
38. MRS JUSTICE COX: Yes, all right. Sorry, so your first application is that you are applying for permission to appeal.
39. THE CLAIMANT: That is correct.
40. MRS JUSTICE COX: Right. Well, I am not going to grant permission, but you are will have to go to the Court of Appeal, Mr Hakeem, if you want to persuade them that you should have permission to appeal and I do so because I take the view that there is no real prospect of success.
41. Now, that deals with the appeal point. What do you want to say about costs, if anything? I appreciate it is difficult for you, having lost this case.
42. THE CLAIMANT: Yes, it is difficult for myself, because right now I have no source of income. I would not be able to pay it until my appeal is successful.
43. MRS JUSTICE COX: Well, the interested party is in court and has heard what you have so say, but I see no reason why they are not entitled to their costs in this matter. Do you want to say anything about the particular sum, Ms Parry?
44. MS PARRY: My Lady, the bulk of the costs are my own costs and that, I would assume, because it is not claimed separately, is both the hearing fee and the skeleton fee, in one, in respect of my costs. The solicitors' costs amount to a mere 2.5 hours, so obviously they are relatively low for a case of this type and overall I would submit that £1,665, although it may seem a lot to Mr Hakeem, is reasonable for a case of this type.
45. MRS JUSTICE COX: Well, it seems to me that, given the issues and the amount of work done by the interested party, and in particular, I have to say, your assistance from your skeleton argument, particularly in a case where it is an appellant in person, it is most helpful. So I shall say that the costs claimed seem to me to be reasonable and proportionate and that you are entitled to them.
46. MS PARRY: Thank you.
47. MRS JUSTICE COX: And thank you very much for your assistance.