Council tax – Liability – Tenancy – Respondent local authority determining that appellant freeholder responsible for council tax on property as resident owner – Valuation Tribunal for England upholding decision – Appellant appealing – Whether tribunal entitled to find appellant living in property as main residence despite existence of tenancy agreement giving tenant exclusive possession and providing for tenant to pay council tax – Appeal dismissed
The appellant was the freehold owner of a house at 66 Lindley Rd, Stoke, Coventry. The respondent local authority determined that he was liable for council tax in respect of the property as the resident owner. The appellant appealed to the Valuation Tribunal for England contending that he was not resident at the property which had been let to a tenant under a written assured shorthold tenancy agreement at a time when he was facing repossession due to mortgage arrears. Under the agreement, the tenant was entitled to exclusive possession of the property and was to be responsible for council tax and other outgoings, Therefore the appellant had not been living at the property but had been “sofa surfing” staying with friends and relatives including his ex-wife.
The respondent did not dispute the existence or validity of the tenancy agreement which, on the face of it, entitled the tenant to exclusive occupation of the house. However, it concluded that, the appellant was in fact living in the house as his main residence at the material time and was therefore liable to pay the council tax under section 6 of the Local Government Finance Act 1992.
The tribunal agreed with the respondent, finding that the circumstances of the tenancy were unusual, the rent was below market value, the appellant had given the house address as his address for, amongst other things, claiming benefits, he was registered to vote there and he had provided no evidence that any other property was his main residence.
The appellant appealed under regulation 43 of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009.
Held: The appeal was dismissed.
(1) It was not disputed that, as freeholder, the appellant was the owner of the property for the purposes of section 6(2)(f) of the 1992 Act. By virtue of that interest he would be in the first line of the hierarchy under section 6(2)(a) if he was also “a resident” of the property (not necessarily the sole resident) and any last resort liability arising purely by reason of ownership alone under section 6(2)(f) would arise only if neither he nor anyone else was residing there. He would be a resident if the property was his sole or main residence, it need not be his sole and main residence, as the appellant submitted. A person could only have a main residence if he resided at more than one place and so did not have a sole residence.
(2) Liability in law for council tax was determined by the legislation and could not be altered by contract between an occupier and anyone else. The tribunal had correctly considered whether the appellant was liable in law. If the tenant had agreed to pay the council tax that would be a private matter between him and the appellant. It was for the appellant to show that the tribunal had made an error of law on the material before it: Gill v Fenland District Council [2018] EWHC 3105 (Admin) followed.
(3) The evaluation of the evidence and the weight to be given to different aspects of that evidence were matters for the tribunal and could not be interfered with by an appeal court unless they went so far as to amount to an error of law. Given that the test was whether the property was the appellant’s main residence, it was not necessary for the tribunal to find that he resided there all the time. It would be sufficient if he did so for part of the time, or from time to time, as long as he had no other property that had become his main residence. That was the approach the tribunal took, and it was undoubtedly right in law to do so. The appellant gave no evidence that he had any other address that was his main residence; it was his case that he had no residence at all and so was not liable for council tax anywhere. It was a commonplace that people entered into written agreements that, whether deliberately or otherwise, did not reflect, to a greater or lesser degree, either what they had in fact agreed or what they thereafter actually did. The tribunal’s task was to determine by evaluating the evidence what had actually happened. It was plainly alive to the possibility that the written agreement might be an attempt to disguise that reality. It was not necessary to find that the tenancy was a sham or otherwise legally invalid for it to reach a conclusion that the reality departed from its terms.
(4) The valuation tribunal was itself an expert tribunal in matters of valuation. Insofar as it was said that it must have taken into account its own view of market rents for three bed houses in the area, it was perfectly entitled to do so. Even if it had not made that finding, it was entitled to find that the tenancy was unusual for the reasons it gave, and to rely on that finding. It was plainly entitled to take into account the fact that rents would normally be expected to exceed mortgage payments, since otherwise the landlord would probably make a loss. Even assuming in the appellant’s favour that submissions were made about the tenant having paid arrears, the tribunal was entitled to find that that was not demonstrated by the evidence. Likewise, the lack of detail about the tenant having made repairs on taking the tenancy, meant it simply could not be said that no reasonable tribunal could have concluded otherwise than that that was sufficient to explain the unusually low rent. There was also evidence before the tribunal capable of casting doubt on the appellant’s account and/or supporting its conclusion that the appellant resided at the property to an extent sufficient to make it his main residence.
There was ample evidence before the tribunal to support its finding. There was no error of law in the tribunal’s evaluation of the evidence or its conclusions of fact.
Alexandra Itari Wills (acting Pro Bono) appeared for the appellant; Annette Cafferkey (instructed by Coventry City Council Legal Services) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Broderick v Coventry City Council
