House in multiple occupation – Council tax – Appeal – Appellant owning property designated as house in multiple occupation – Appellant applying for extension of time to appeal against decision of Valuation Tribunal for England upholding the respondent local authority’s decision to impose liability for council tax – Appeal dismissed
The appellant owned a freehold property at 53 Rosebank Grove, London E17. The property was occupied by tenants. In 2001, the respondent designated the property a house in multiple occupation (HMO) within Class C of the classes of chargeable dwellings prescribed for the purposes of section 8(1) of the Local Government Finance Act 1992, which was concerned with liability for council tax in prescribed cases. The classes were set out in regulation 2 of the Council Tax (Liability for Owners) Regulations 1992, the effect of which was that the appellant became liable for council tax in respect of the property, notwithstanding that there were tenants in occupation.
The appellant said he was not aware of the respondent’s decision until 2015. On 16 August 2016, he wrote to the respondent contesting his liability. The respondent refused to review the decision and the appellant sought to appeal under section 16 of the 1992 Act. Before the appeal could be heard, it required authorisation by the President of the Valuation Tribunal for England (VTE) under regulation 21(6) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 because the appeal was made out of time as it was not initiated within the two-month period specified in regulation 21(2) of the 2009 Regulations.
The appellant subsequently applied for an extension of time to appeal against the decision of the vice-president of the VTE, refusing to authorise the appellant’s appeal against the decision imposing liability for council tax. The appellant argued that the court should follow the approach in Jagoov Bristol City Council[2017] EWHC 926 (Admin) on the basis that the use of the words “may be dismissed” in regulation 43(2) indicated that the time limit was not an absolute bar. Further, it was not appropriate to adopt the approach laid down in Dentonv TH White Ltd[2014] 1 WLR 3926,which applied to an appeal under CPR 52 in relation to an ordinary civil claim.
Held: The appeal was dismissed
(1) Regulation 43(1) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 provided that an appeal lay to the High Court on a question of law arising out of a decision made or order given by the VTE on an appeal under section 16 of the 1992 Act. An appeal under regulation 43(1) might be dismissed if it was not made within four weeks of the date on which notice was given of the decision or order that was the subject of the appeal (regulation 43(2)). The regulation could be analysed as imposing a time limit which might be extended only if the court in its discretion agreed; or an automatic sanction from which relief had to be sought; or as a ground on which the court might in its discretion dismiss an appeal. It did not matter. The general rule was that appeal courts treated an application to extend time for appealing, when brought after the time limit had expired, as equivalent to an application for relief from sanctions from CPR 3.9.
(2) The judge in Jagoo had stated that the test set out in Dentonwas not directly applicable to the circumstances of that appeal but had not indicated which factors led to that conclusion or the compelling reasons why the appeal should be heard. Whilst the court did not question the result in Jagoo, the correct approach was that adopted in Turner v South Cambridgeshire District Council[2016] EWHC 1017 (Admin) where the court was also considering an application for an extension of time to appeal under regulation 43 and concluded that the Dentoncriteria were applicable, either directly or by analogy. There was no reason why a less rigorous approach should be taken.There was nothing in the argument that the words “may be dismissed” used in regulation 43, in contrast to the words “shall dismiss” used in regulation 21(2) coupled with a specific relief from sanction provision in regulation 21(6), indicated that a less stringent approach should be taken in relation to an application for an extension of time under regulation 43. It was appropriate that the 2009 Regulations, which were concerned with the appellate jurisdiction of the VTE, should have more detailed rules in relation to such appeals, while a reference to appeal to the High Court should recognise that the High Court retained discretion in relation to the granting of an extension of time. Nonetheless, that discretion had to be exercised by reference to principle: Turnerv South Cambridgeshire District Councilapplied. Dentonv TH White Ltd[2014] 1 WLR 3926 followed.
(3) Applying the three-stage process summarised in Dentonv TH White Ltd, firstly, the appellant had filed his appeal five months late which was a serious and significant delay. Secondly, none of the reasons advanced by the appellant came close to providing an acceptable reason for a failure to file within the deadline, much less a delay of five months in doing so. The appellant’s financial difficulties were unfortunate and attracted sympathy, but could not of themselves excuse a delay of five months, particularly given that a letter dated 6 September 2016 sent to him by the respondent was quite clear as to the correct route of appeal, namely, to the VTE, and as to the deadline. Thirdly, regarding the need to evaluate all the circumstances of the case, to enable the court to deal justly with the application, including factors (a) and (b) of CPR rule 3.9, which applied by analogy if not directly, those factors required the court to have regard to the need for litigation to be conducted efficiently and at proportionate cost, and to consider the need to enforce compliance with rules, practice directions and orders. Although the appellant’s witness statement made it clear that he was trying to assert his rights, but he was confused as to how to do so, having regard to all the circumstances of the case, there was no basis to justify granting an extension of time and the appeal would be dismissed.
(4) In any event, the court would have dismissed the appeal on substantive grounds. The matters complained of did not give rise to a question of law and there was no public law basis on justifying setting aside the vice-president’s decision.
David Sawtell (instructed by Direct Access) appeared for the appellant; the respondent did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read transcript: Sabesan v Waltham Forest London Borough Council
