Non-domestic rating – Procedure – Appeal — Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 – Appeal to Valuation Tribunal for England against rating decision struck out for failure to comply with directions for service of statement of case – Vice-president of VTE refusing application under regulation 10(5) to reinstate appeal – Appellant appealing to Upper Tribunal – Application to strike out appeal – Whether right of appeal to UT arising under regulation 42(1) of 2009 Regulations – Application dismissed
The appellant appealed to the Valuation Tribunal for England against the rejection by the respondent valuation officer of a proposal to delete a hereditament in London EN4 from the non-domestic rating list. The VTE gave standard directions which required the appellant to serve a statement of case at least six weeks before the date of the hearing, failing which the proceedings would automatically be struck out. The appeal was later struck out on the grounds of the appellant’s failure to serve a statement of case as directed. The vice-president of the VTE dismissed the appellant’s application, made under regulation 10(5) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009, to reinstate the appeal.
The appellant lodged an appeal to the Upper Tribunal (UT) against that decision. The respondent applied to dismiss the appeal, under r 8(2)(a) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, on the ground that the Upper Tribunal did not have jurisdiction to consider it. He contended that the appellant had no right of appeal under regulation 42 of the 2009 Regulations since it did not fulfil the requirements of either regulation 42(1)(a) or (b). It submitted that the requirements of regulation 42(1)(a) could not be met since the appellant had not “appeared at the hearing” or made written representations on an appeal disposed of in that way, and that regulation 42(1)(b) could not be fulfilled since the appellant’s application for reinstatement had not relied on “satisfaction of the condition mentioned in regulation 40(5)(c)”, namely the showing of reasonable cause for the absence of that party or its representative from a hearing relating to the proceedings.
Held: The application was dismissed.
(1) Part 5 of the 2009 Regulations was concerned with correcting, reviewing, setting aside and appealing the decisions of the VTE. Regulation 42(2)(a) identified two categories of person as entitled to bring an appeal in respect of a decision or order given or made by the VTE on an appeal under the Non-Domestic Rating (Alteration of Lists and Appeals)(England) Regulations 2009, namely any party “who appeared at the hearing” or, “if the appeal was disposed of by written representations, who made such representations”. Regulation 42(2)(b) then conferred a separate right of appeal on any person who applied to the VTE under regulation 40(1) for the review of a decision and whose application relied on satisfaction of the condition mentioned in regulation 40(5)(c), namely reasonable cause for non-attendance at a hearing relating to the proceedings.
An appeal lay to the UT from the VTE only against a “decision or order”. The striking out of the appellant’s appeal to the VTE, as a result of the appellant’s failure to provide its statement of case within the time directed, was not the result of a separate decision or order but was the automatic consequence of a procedural omission. However, it was not necessary to consider whether any right of appeal lay to the UT against the striking out of the VTE appeal, because the decision which the appellant sought to appeal was not the striking out but the decision of the vice-president refusing the application under regulation 10(5) for the appeal to be reinstated. That was clearly a decision given on an appeal for the purpose of regulation 42.
The appeal against the refusal to reinstate lay under regulation 42(1)(a) rather than regulation 42(1)(b). The decision to refuse reinstatement could not be characterised as a refusal to review a previous decision, because the striking-out of the appeal was not the result of a decision but rather was the result of a sanction imposed for default in complying with a procedural direction. Accordingly, the entitlement to seek reinstatement of an appeal under regulation 10(5) was not dependent on the satisfaction of the conditions in regulation 40(5) or any other conditions specified by the 2009 Regulations. It followed that the right of appeal to the UT conferred by regulation 42(2)(b) of the 2009 Regulations was not relevant to the present appeal.
Instead, the appellant had a right of appeal as a person satisfying the description in regulation 42(1)(a). Although the appellant was not a person “who appeared at the hearing”, since there had been no hearing, it was a person who had made written representations on an appeal disposed of by such representations. A decision on a reinstatement application under regulation 10(5) could properly be described as “disposing of” the appeal, notwithstanding that the appeal had previously been struck out. The better view was that an appeal which had been struck out, but which was the subject of an application for reinstatement, remained an appeal for that purpose until it was finally disposed of by the dismissal of the reinstatement application. The consequence of not recognising a decision under regulation 10(5) as one falling within regulation 42 would be that no right of appeal would lie against it at all.
(2) The appellant’s appeal under regulation 42(1) was solely against the decision of the vice-president of the VTE not to reinstate the appeal after it had been struck out; consequently, the UT should not consider the substantive rating appeal at the present stage. It would subvert the proper procedures of the VTE if the appellant were allowed to by-pass those procedures and have his substantive appeal considered by the UT as if it had never been struck out for procedural default. Furthermore, the decision of the vice-president, made on the facts and also on a matter of case management, appeared to have been fully justified on the material before him. In those circumstances, further submissions were invited from the parties as to the approach that the UT should take on an appeal against a refusal to reinstate, including whether the UT should conduct the appeal as a rehearing or as a review on which the vice-president’s decision should remain undisturbed unless the appellant could make a convincing case that it was wrong.
The appeal was determined on the written representations of the parties.
Sally Dobson, barrister