Marshall v Bath and North East Somerset Council

Council tax – Liability – Exemption – Appellant claiming exemption from council tax under Class N or K in article 3 of Council Tax (Exempt Dwellings) Order 1992 relating to status as student – Respondent local authority refusing claim – Valuation tribunal dismissing appeal – Appellant appealing – Whether property appellant’s “sole or main residence” – Whether “sole or main residence” relevant to Class N exemption – Appeal dismissed The appellant was a joint long leaseholder of a dwelling at 45 Great Pulteney Street, Bath, acquired on 16 February 2022.  Between 5 September 2022 and 16 June 2023, the appellant was a student. During term he lived with his parents at their house in London. Section 4 of the Local Government Finance Act 1992 provided that council tax was payable in respect of any dwelling which was not an exempt dwelling. The claimant claimed council tax exemption under Class N in article 3 of the Council Tax (Exempt Dwellings) Order 1992 for the period he was in residence at the Bath property and under Class K for the period the property was unoccupied after he returned to university. The respondent billing authority decided the property was chargeable for council tax and the appellant was not entitled to a statutory exemption as a student. An appeal to the Valuation Tribunal for England under section 16 of the Local Government Finance Act 1992 was dismissed. The appellant appealed, pursuant to regulation 43(1) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009, contending that the tribunal (i) was wrong to apply the “sole or main residence” test for the purposes of Class N; (ii) erred in law in finding that the property was not the appellant’s main residence during the occupation period; (iii) adopted the wrong approach to the determination of “main residence”; and (iv) reached a conclusion which was not reasonably open to it. Held: The appeal was dismissed. (1) The appellant’s primary case under Class N was that during the occupation period he was a student, occupying the property, a “resident” there and the only resident occupying the property: see Class N, paragraph (1)(a) and paragraph 2(a)(i). The dictionary definition of “resident” was: “One who resides permanently in a place”. To “reside” was: “To dwell permanently or for a considerable time; to have one’s settled abode; to live in or at a particular place”. The “sole or main residence” referred to premises in which the taxpayer actually resided. The qualification “sole or main” addressed the fact that a person might reside in more than one place. Usually, a person’s main residence would be the dwelling that a reasonable onlooker, with knowledge of the material facts, would regard as that person’s home at the material time. Where a person ceased to reside in the house which had been his sole or main residence for a period of time, an issue might arise whether during that period the house in question ceased to be his sole or main residence. The answer would depend on the circumstances and was a matter of fact and degree: Williams v Horsham District Council [2004] EWCA Civ 39; [2004] PLSCS 15 and R (Bennett) v Copeland Borough Council [2004] PLSCS 124; [2004] EWCA Civ 672 followed. (2) Section 6(5) of the 1992 Act provided that “resident”, in relation to any dwelling, meant an individual who had attained the age of 18 years and had his sole or main residence in the dwelling. Nothing indicated any intention that “resident” in the 1992 Order should bear any different meaning. The concept of a “resident” was central to the liability provisions in section 6 of the 1992 Act, and the Order would have made it very clear if such an important word bore any other meaning for the purpose of an exemption than the primary provisions dealing with liability.  The definition of “occupied” in article 2 of the Order meant that a dwelling was occupied only if someone lived there. Whether “residents” had the same meaning as in the 1992 Act or its ordinary, dictionary meaning, it did not require sole residence. Accordingly, the tribunal was correct to consider that the “main residence” criterion applied to the exemption in Class N, paragraph (1)(a) and did not err in applying the “sole or main residence” test to the Class N exemption. (3) Neither the conduct of the hearing nor the tribunal’s decision involved any unfairness to the appellant. The principle of procedural fairness in TUI UK Ltd v Griffiths [2023] 3 WLR 1204 in the context of civil litigation applied also in tribunal appeals. However, while a section 16 appeal was adversarial with defined parties, it did not concern purely matters of private right. Part I of and schedule 2 to the 1992 Act imposed obligations on the billing authority to collect, and on the charge-payers to pay, council tax. The tribunal was therefore concerned to ensure that taxation obligations in public law were defined and complied with. Regulations 3 and 6 of the 2009 Regulations required the tribunal to conduct its functions, including appeals, in a proportionate, flexible and appropriately informal manner and gave the tribunal authority to regulate its own procedure. The parties had set out their positions clearly, both before and in the appeal proceedings. The tribunal did not reject the factual evidence adduced by the appellant in any material way. It simply decided that the facts did not establish that the property was the appellant’s main residence during the occupation period. (4) The tribunal adopted the correct approach to the determination of “sole or main residence”. An appellate court had to be cautious about differing from the tribunal’s multi-factorial assessment based on a number of primary facts, or a value judgment, and it was impermissible to make a roving selection of the evidence coupled with a general assertion that the tribunal’s conclusion was against the weight of the evidence and therefore wrong. The Williams case made clear that the identification of the main residence was a matter for the objective assessment of the court or tribunal, not the mere say-so of the individual. The tribunal was entitled to conclude that the property was not the appellant’s “main” residence during the occupation period, albeit that it might possibly have been a residence. A factor of particular significance in one case might be less significant on the facts of another. On the evidence, before the occupation period the appellant was not merely staying at his parents’ home for the purposes of his studies: that was his sole residence. Thereafter, for a short period, the property might have become another residence. In any event, the evidence did not compel the conclusion that it had become his “main residence”. Philip Marshall KC (instructed by Protopapas LLP) appeared for the appellant; George Mackenzie (instructed by Bath and North East Somerset Council) appeared for the respondent Eileen O’Grady, barrister Click here to read a transcript of Marshall v Bath and North East Somerset Council