Council tax — Appellant living and working abroad Appellant’s property let on tenancy — Whether property becoming owner’s sole or main residence for council tax purposes upon termination of tenancy — Section 6 of Local Government Finance Act 1992 — Appeal allowed
The appellant owned a cottage in the respondent local authority’s area. The appellant had lived in the cottage before going to live and work in Spain under a two-year employment contract. He rented accommodation in Spain, had the legal status of Spanish residency and paid Spanish taxes while working there. He let the cottage under a written tenancy agreement for a two-year term, having removed his furniture and other possessions. The tenant moved out after a year, and the appellant accepted the premature termination of the tenancy. The appellant returned to the cottage several months later after his Spanish employment contract.
The respondents assessed the appellant’s liability for council tax at 75% for the period between the termination of the tenancy and his return to the cottage. That percentage reflected their determination that although the appellant had not been living at the cottage during that period, it qualified as his sole or main residence within the meaning of section 6 of the Local Government Finance Act 1992. That decision was upheld by a valuation tribunal on appeal, which took into account that: (i) the cottage had been the appellant’s home before he went to Spain; (ii) that it was the property to which he returned once his Spanish employment ceased; and (iii) it was the property over which he enjoyed the greatest security of tenure.
The appellant appealed, contending that his sole or main residence during the relevant period had been in Spain. The respondents submitted that once the tenancy had come to an end, there was no legal impediment to the appellant’s residence of it, which had therefore resumed.
Held: The appeal was allowed.
Section 6 of the 1992 Act distinguished between ownership of a dwelling and residence; a property could not be a person’s sole or main residence unless he resided in it. Where a person resided in a property, security of tenure, and the nature of his interest in a property, could be relevant to the question of whether the property was his main residence; however, they were not relevant to the question of whether he resided there in the first place: Williams v Horsham District Council [2004] EWCA Civ 39; [2004] 1 WLR 1137 applied.
The expression “sole or main residence” was principally intended for determining the council tax liabilities of a person who lived in more than one place. The appellant had not resided solely or mainly in the cottage having gone to Spain to work for a minimum two-year period, having had residence there, paying tax there, and not returning to live in the cottage during that period. Moreover, although not determinative of the matter, it would be anomalous if he were to be treated as being resident during that period for council tax purposes when he was non-resident for income tax purposes. The appellant had ceased to reside in the cottage having gone to Spain and letting the cottage for a protracted period, and the fact that his tenant left did not, without more, lead to the conclusion that he had resumed residence.
Nor did the appellant’s intention to return to the property make him resident in it; it was necessary to know when a person intended to return in order to determine the date from which a property might again become his sole or main residence. The appellant had not intended to return on the termination of the tenancy.
The appellant appeared in person; Ranjit Bhose (instructed by the legal department of Derbyshire Dales District Council) appeared for the respondents.
Sally Dobson, barrister
