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
		9th November 2017

MR JUSTICE GOOSE:

Introduction

1. This is a statutory appeal in respect of a decision of the Valuation Tribunal after an appeal by Mr Heslop ("the appellant") against the decision of Sefton Council ("the respondent").
2. The subject of this appeal concerns the council tax liability of the appellant in respect of a property he owned at 10 Kings Road, Bootle, Merseyside. The respondent has determined that the property was at all material times a long-term empty dwelling within the meaning of s.11B Local Government Finance Act 1992 (as amended). This required the appellant, upon notice, to pay a 50 per cent empty property premium on his council tax liability on that property. The appellant has sought to challenge the property being designated a long-term empty dwelling, first, by appealing to the respondent and, secondly, to the Valuation Tribunal. The Tribunal rejected the appeal in a decision dated 13^th July 2017 and it is that decision which is the subject matter of this statutory appeal.
3. The appellant seeks also to raise a further application, by notice issued on 20^th October, which was issued almost three months after the appeal notice was issued. I shall for the moment not deal with that particular application because, as the appellant quite properly says, it will depend upon the outcome of the substantive appeal.

Chronology

4. The appellant has lived at 13 Canterbury Crescent, Brixton, London since about 1993 and has been registered to pay council tax at that property. He claimed and received a single-occupancy discount for living there. He also owns 10 Kings Road, Bootle, Merseyside ("the property") which, for a period until August 2013, was rented to an occupying tenant. When the tenant left, the appellant claimed and was given a discount on his council tax liability for six months, being one month at 100 per cent and five months at 50 per cent. This was on the basis that the property was declared by the appellant as being unoccupied and unfurnished. That discount continued until February 2014.
5. On 1^st April 2014 the appellant claimed single occupancy discount on the property as his main property, seeking a discount on his council tax liability. The respondent wrote letters dated 24^th April 2014, 16^th May 2014 and 18^th July 2014 to the appellant at the property, concerning the application but received no reply. On 28^th October 2014 an inspector employed by the defendant visited the property and carried out an external inspection, reporting that in his opinion the property was empty. On 24^th August 2015 the respondent gave notice that it would treat the property as long-term empty and, therefore, that the empty-property premium ("EPP") of 50 per cent on the council tax would apply.
6. Following that notice, on 25^th August 2015 the first demand relating to council tax between 22^nd August 2015 and 31^st March 2016 was sent to the appellant at the property. It is that particular first demand which is the subject matter of the application to which I will return later in this judgment.
7. On 3^rd September 2015 the appellant challenged the first demand. On 16^th October 2015 the respondent offered to review the decision if it was permitted to internally inspect the property, but on 23^rd October 2015 the appellant offered to permit an internal inspection only upon payment of £250. The respondent refused to pay that sum and, accordingly, no internal inspection took place.
8. On 3^rd November 2015 the respondent dismissed the appeal against the first demand and gave short reasons for that dismissal.
9. On 17^th March 2016 the second demand, which is the subject matter of this appeal, was issued by the respondent to the appellant, including the 50 per cent EPP, for council tax between 1^st April 2016 and 31^st March 2017. On 22^nd April 2016, the appellant appealed to the respondent in respect of that second demand. That appeal was dismissed by the respondent on 17^th May 2016, treating the appeal as not well founded and giving short reasons for that conclusion. There is criticism made of those reasons by the appellant.
10. On 1^st July 2016 the appellant brought his appeal to the Valuation Tribunal in respect of the second demand claiming, first, that it was wrong to find the property as unfurnished and unoccupied for more than two years and, secondly, the property was occupied by the appellant as his second home. Therefore, the appellant contended that it could not be described as a long-term empty dwelling to permit the EPP.
11. On 15^th June 2017 the appeal hearing in respect of the appellant's appeal was heard by the Valuation Tribunal. Its decision was dated 13^th July 2017, dismissing the appeal. The decision and reasons therefore are set out within the Respondent's bundle at B3. I shall refer to them in part:

(a) when the tenant moved out of the property in August 2013 it was classed as unoccupied and unfurnished and, as such, the appellant received the benefit of an unoccupied and unfurnished discount;

(b) the billing authority's inspector's observations, being that the property was empty, during an external inspection on 28^th October 2014;

(c) the appellant had failed to allow an internal inspection; he would only allow the billing authority to inspect it if they agreed to pay £250.

On the above grounds the panel upheld the decision of the billing authority and, therefore, the appeal was dismissed.

12. On 31^st July 2017 the appellant issued his statutory appeal before this court.

The Nature of this Appeal

13. It is important to establish the correct test for this appeal against the decision of the Valuation Tribunal. The appeal test was succinctly described in the decision of Ramdhun v Valuation Tribunal England [2014] EWHC 946 (Admin) para.20 et seq:

"20. The approach of the High Court in an appeal such as this from a decision of a first-tier tribunal is very clear: absent a patent error of law or findings of fact which simply cannot be justified on the evidence, the High Court will not interfere. A court sitting on appeals such as this will not substitute its own judgment on the facts found by a tribunal merely because it comes to a different conclusion on the facts or the balance to be struck amongst a number of competing factors."

The Appeal and Grounds

14. The appellant raises nine grounds which he describes as "flaws" in the reasoning of the tribunal. Some of them have a theme, so that I will consider those together where they raise a common point:-

i. "Failure to assess factual situation";

ii. "Wrong perspective adopted";

iii. "Excluding evidence";

iv. "A rebuttable presumption";

v. "An unoccupied dwelling listing is not contrary to second-home status";

vi. "Attaching too much weight";

vii. "Proposed inspection";

viii. "Discretion or statutory right";

ix. "The refusal letter".

15. I propose to deal with grounds (i) to (iii), (vi) and (vii) together. Essentially, they cover the decision-making process and the material considered by the tribunal in reaching its decision. The appellant argues that in the first ground – "failure to assess factual situation" - the tribunal should have considered whether the property fell into class B or class C of the Council Tax (Prescribed Classes of Dwelling) (England) Regulations 2003. The contention is that had the tribunal done so, it should have decided that the property fell within class B rather than class C because a second home would fall into class B, and that is what he contends is the situation.
16. In the second flaw – "wrong perspective adopted" - the appellant contends that the tribunal misdirected itself in failing to identify the respective duties of the appellant and respondent under the legislation; essentially, that once the matter was raised by the council, the appellant was required to challenge the decision if he wished to and responses should be given with reasons. As far as that particular criticism is concerned, it is a criticism of the Respondent's decision rather than the decision of the tribunal. This appeal is against the decision of the Valuation Tribunal
17. The third flaw - excluding evidence - concerns the contention by the appellant that the tribunal ignored evidence of the appellant in relation to his expenditure, which he sought to argue proved that he was treating the property as a second home and was not long-term empty.
18. The sixth flaw - attaching too much weight - the appellant's contention is that the observation of the inspector on the visit on the 28^th October 2014, namely that the property appeared empty, was of little weight; too much weight was given to it by the tribunal.
19. The seventh flaw - the proposed inspection - the appellant says that the refusal to have an internal inspection without paying £250 was given too much significance by the tribunal.
20. Taking those grounds together, they are effectively criticisms of what the tribunal relied upon in coming to its conclusions. The real point that the tribunal dealing with was whether there was evidence against the decision by the Respondent that the property was a long-term empty building, the test for which is within s.11B Local Government Finance Act 1992 (as amended). That required the determination whether there was a continuous period of at least two years preceding the day of consideration in which the property was (a) unoccupied and (b) substantially unfurnished. The appellant's contention in grounds (i) – (iii), (vi) and (vii) was that the decision of the tribunal was wrong in that either the wrong material was considered or too much weight was given to inadequate material.
21. Having considered carefully the reasoning of the tribunal and the contentions of both the appellant and the respondent, I am satisfied that the decision was not made contrary to law; nor was it unjustifiable on the evidence. There was clear evidence, identified in the reasons given by the panel, which justified the finding made. The fact that the panel rejected the evidence of the appellant does not make the decision unlawful or unjustifiable. In my judgment none of those particular grounds that the appellant has impressively argued are sufficient to establish as a point of law that the decision was wrong.
22. I turn to the eighth ground - a rebuttable presumption. The appellant's contention here is that the tribunal treated the discount or reduction of the council tax liability as if it were a charitable gift and not a proper application of legal principle. If that were correct, then it would be a proper point of law to raise. However, I see no basis for the contention that the tribunal treated this as if it were a charitable gift. It may be that the appellant takes the view that it was not what he would have done or, indeed, he would have treated it differently if he were making the decision. But the tribunal did not fail in its duty to apply the law correctly in reaching the decision that it did.
23. I turn now to the fourth flaw, the rebuttable presumption. The appellant contends that the tribunal set too high a standard in relation to the evidence necessary to prove the points he wishes to do so in his appeal. Effectively, once the determination of long-term empty dwelling had been determined by the Respondent then, says the appellant, almost no evidence was going to be allowed to deflect that; a presumption became a conclusion. Again, if that were right, that would be wrong in law and would be an appropriate point of appeal but I find no basis in the reasoning of the tribunal to indicate that it applied the wrong test. Plainly, it was a rebuttable presumption because the tribunal considered all of the evidence and reached their conclusion based on that evidence and not on an irrebuttable presumption.
24. The fifth flaw raised by the appellant concerns the contention that there is an inconsistency between the property being his second home and being unoccupied, that is to say that if the property were simply unoccupied it would be a second home and, therefore, the tribunal in some way went wrong in failing to recognise that. It seems to me that this is a misunderstanding of the test that was being applied by the panel of the Valuation Tribunal, which was concerned with examining whether there was any evidence against the determination that the property was unoccupied and unfurnished for a period of two years preceding the date of assessment. The tribunal, in coming to its decision, plainly did consider the evidence.
25. The criticism of the tribunal in attaching too much weight to different aspects of evidence is very much a part of the decision-making process. I find no legal principle that has been breached or any argument of law that could be used to say that the tribunal went wrong in its decision making, when the tribunal was entitled to infer from the refusal without payment to allow internal inspection, that the appellant was reluctant to allow that to happen. Also, the tribunal was entitled to infer that where the property had at an earlier time been the subject of an agreed unoccupied and unfurnished status in order to receive a discount on council tax that that was significant in the decision-making process. Equally, the tribunal was entitled to infer from the October inspection that the observation of an empty property was of assistance in the decision.
26. Ultimately, it is not for this court to decide whether a different decision might have been arrived at. It is not for this court to look at the merits again or, indeed, the demerits, much as I am sure the appellant would wish the court to do so. The panel is entitled to take into account all the evidence that it did and reach the conclusion that it did by doing so, and I find that there is nothing wrong in law in that decision.
27. The final ground relating to the refusal letter is, effectively, linked with the second flaw because it is said that the refusal letters, dated 3^rd September 2015 and 22^nd April 2016, were letters which did not provide full and proper reasons for finding the objections by the appellant were not well founded. I have already made an observation that that particular argument is more a criticism of the approach by the respondent rather than the Valuation Tribunal. I know I find no legal principle that that could give rise to a proper appeal in respect of the Valuation Tribunal's decision.
28. Accordingly, therefore, having considered each of the grounds that the appellant raises, and taking into account the additional oral argument that he has made and the response by the respondent, I have come to the clear conclusion that there is no argument in law that the decision of the tribunal was wrong. Accordingly, therefore, it must mean that the appeal against the decision of the Valuation Tribunal is dismissed.
29. It means, Mr Heslop, that on that basis, as I think you have correctly analysed, there is not much point in considering the application because the application is within the appeal. I might also say what I would have concluded that the application is a stand-alone appeal itself, if it is to be pursued. You are substantially out of time to pursue an additional appeal, if you wanted to seek to pursue it. I am sure you appreciate that. I see that you don't pursue it, thank you.

MR JUSTICE GOOSE: Mr Du Feu, do you want to say anything?

MR DU FEU: I am instructed to make an application for costs pursuant to 44.2. Given that Mr Heslop is not represented, I should draw your attention to a couple of provisions which would be relevant to your determination. CPR 52, particularly ss.19; yes, 52.19. This of course is an appeal from a jurisdiction where there is a principle of no costs.

MR JUSTICE GOOSE: Give me a moment while I read it. (Pause) I will summarise it so that Mr Heslop understands the point.

Normally, Mr Heslop, what follows in an appeal or hearing - the general principle - is that the loser pays the costs subject to assessment. But Mr Du Feu is being entirely professional and proper in saying that in cases such as this there is a slightly different test which helps you. Civil Procedure Rule 52.19:

"(1) Subject to rule 52.19A, in any proceedings in which costs recovery is normally limited or excluded at first instance, ..... " –

Is that right?

MR DU FEU: That is right.

MR JUSTICE GOOSE: -

"an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.

(2) In making such an order the court will have regard to -

the means of both parties; [they are your means, Mr Heslop]

all the circumstances of the case; and

the need to facilitate access to justice."

It is not an Aarhus Convention claim, is it?

MR DU FEU: No.

MR JUSTICE GOOSE: So, essentially, therefore, I have to have in mind the means of the parties - the defendant is a local authority - and the circumstances of the case and the need to facilitate access to justice; the third of those is a stand-alone principle, is it not? First, can you indicate what level of costs it is that you seek subject to those matters.

MR DU FEU: That is my next issue in that although my instructions are to seek costs, I have not seen a costs schedule. I can tell you what my costs are of today but I cannot assist you much further than that, and Mr Heslop will not have seen a costs schedule either, neither will the court to the best of my knowledge. The costs, as I understand them to be today, are £800 plus VAT. I cannot assist you any further with costs. I do not think I can ask for any more than that.

The provision 52.19 would of course require Mr Heslop to make an application and he may need to indicate that he would like that to be considered. I will leave that matter to you in order to determine how costs should proceed today. My instructions are to make an application for costs and I do so on the basis that they should follow the event.

MR JUSTICE GOOSE: Mr Heslop, it may be possible you might want to think about it but normally the proceedings are resolved today rather than to put things off. Do you want to say something about your means, in other words your ability to pay? Are you in work?

THE APPELLANT: I was working until last December but I had a problem with my boss who became very aggressive.

MR JUSTICE GOOSE: What was your job? What did you do?

THE APPELLANT: I was writing letters for a property developer. Anyway, he became very aggressive and abusive so basically -- and when he has a case and loses the case, basically, he goes mad. So, basically, I had to leave and because I am now 63, basically, at my age I am not seeking work. I have other things to do so basically-----

MR JUSTICE GOOSE: I bear in mind - it is important - that the hearing below involved no costs liability. On the other hand, it has been brought to this court which does involve costs. I also bear in mind very much the need to facilitate access to justice. You have a claim, you must be entitled to bring it and costs must not put people off if they are too high. On the other hand, the amount of claim which could, if it had been properly done (I am sure Mr Du Feu will understand what I mean) could have had a figure much higher than being claimed. Is the figure being claimed at the moment a figure you would find impossible to pay?

THE APPELLANT: This £800 plus VAT?

MR JUSTICE GOOSE: Yes.

THE APPELLANT: VAT is what - 20%? You are talking of what?

MR JUSTICE GOOSE: 960.

THE APPELLANT: Basically, I would still need to pay by instalments.

MR JUSTICE GOOSE: That can be done. I can give a date by which you could pay which would be long enough to allow you to do it. Do you want a number of months to be ready to pay it rather than do it by instalments?

THE APPELLANT: I would think that is about two years, isn't it? I have got other debts. I have a personal loan. I have other debts.

MR JUSTICE GOOSE: It is quite a long time - two years. You can set it up. I can make an order to pay by instalments but to some extent it is probably easier if, for example, you are given six months or even longer - perhaps 12 months - to pay and then you pay all in that time.

THE APPELLANT: Sorry?

MR JUSTICE GOOSE: Then you pay it within that time. It gives you time to pay it.

THE APPELLANT: If you could make that 18 months then I think that is -- all I would say on that is that I treat bills very importantly. Basically, Sefton Council they have not in my council tax account not mentioned it about payment but basically all their payments were made. I paid my council tax. Basically, I usually pay it on a weekly basis. I take paying bills and debts very importantly.

MR JUSTICE GOOSE: I am not going to invite submission on this. It is more a matter of feel and 52.19. I think you ought to be able to pay any costs I order within 12 months rather than longer. Longer than that becomes too long. I will reduce it a little to facilitate that. That is no respect to Mr Du Feu. I will make it a total of £750, that is inclusive of VAT. It seems to me that that ought to be more achievable.

THE APPELLANT: Okay, thank you.

MR JUSTICE GOOSE: Payable within 12 months. I am sure you appreciate that is considerably less than - the proceedings that we have had - costs would have been, but it seems to me to make a point but also assists Mr Heslop who is acting in person.

MR DU FEU: I am grateful. Do you wish me to draw up the order?

MR JUSTICE GOOSE: Please, would you do that?

MR DU FEU: How would you like the application, the disposal of the application to be reflected on the order?

MR JUSTICE GOOSE: Mr Heslop, do you withdraw the application?

THE APPELLANT: I withdraw the application because obviously there is no point.

MR JUSTICE GOOSE: If you could have it "on appeal being dismissed, application withdrawn", something of that sort.

Mr Heslop, may I also, in concluding the proceedings, thank you for your submissions and also recognise the quality of the bundle you put together and your skeleton arguments. So thank you for that because it quite often is the case with people acting on their own behalf that it is harder work for the court because of the way they prepared.

THE APPELLANT: Thank you.