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||Neutral Citation Number:  EWHC 3507 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
London WC2A 2LL
||28th November 2008
B e f o r e :
MR JUSTICE STADLEN
||THE QUEEN ON THE APPLICATION OF JOHN STUART SALMON
||(1) FELTHAM MAGISTRATES' COURT
||(2) LONDON BOROUGH OF HOUNSLOW
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The Claimant appeared in person
Mr A Choudhury (instructed by the London Borough of Hounslow) appeared on behalf of the 2nd Defendant
HTML VERSION OF JUDGMENT
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- MR JUSTICE STADLEN: This is an application by Mr John Salmon for judicial review of a decision by the first defendant, the Feltham Magistrates' Court, on 17th September 2007 to make a council tax liability order against him in the sum of £1,491.83. The second defendant is the London Borough of Hounslow. The first defendant did not appear or make submissions before this court. The second defendant was represented by Mr Choudhury of counsel and Mr Salmon appeared making submissions on his own behalf.
- The application arises out of the liability order dated 17th September 2007 in respect of council tax payments said to have been due for the year 2007 to 2008 on a property at 144 Wellesley Road, Chiswick, London, which is in the London Borough of Hounslow.
- The relevant property has a ground floor and a first and second floor. It is common ground that the ground floor is a separate dwelling for council tax purposes and is irrelevant for the issues to be decided on this application. The claimant, Mr Salmon, is the leasehold owner of the property which forms the first and second floor, together with the staircase leading to it, the house being a three-storey Victorian conversion.
- There is a long background, leading up to the order that was made, of attempts by the Council to obtain council tax payments from Mr Salmon in respect of that first and second floor property on the basis of their conclusion that, because it was property satisfying the definition of a house in multiple occupation as defined in section 2C of the Council Tax (Liability of Owners) Regulations 1992, Mr Salmon is the person liable for council tax in respect of the first and second floor flat by virtue of section 8 of the Local Government Finance Act 1992, to whose provisions I shall return.
- In essence, the Council formed the view, by reference to evidence to which I shall refer, some considerable time before the year 2007/2008 that the first and second floor flat satisfied the condition of a house in multiple occupation as defined in the regulation and that for that reason Mr Salmon was the person liable to pay council tax in respect of it. That was something that Mr Salmon did not accept and there was a dispute in relation to that.
- So far as the matters giving rise to the decision which is subject of this application are concerned, the relevant chronology is as follows. On 19th March 2007, the second defendant issued a council tax demand in the sum of £1,394.50 to Mr Salmon in respect of the property described as the maisonette, first and second floors, 144 Wellesley Road, Chiswick. The council tax demand notice was sent to Mr Salmon at an address in Rue de la Révolution, Séte, France, which was the address in the council records for Mr Salmon, who had lived for some time in France. The demand was in conventional form and stated:
"The reason for the bill is: your Annual Bill Demand Notice...
Amount payable by you £1394.50"
"Payment must be made as below, late payment will lead to recovery action."
"Instalments To Be Paid By: Cash Payments Monthly
First Instalment Due on 05/04/2007
Other Instalments Due on 01/05/2007 to 01/01/2008"
And that was said to be one instalment of some £143 and nine of some £139.
- On 14th May 2007 the Council sent Mr Salmon at the same address in France a reminder notice called a Council Tax Arrears Notice, which said, so far as relevant, as follows:
"Amount due to bring instalments up to date: £2828.53
If payment is not received by 21-May-2007 you will lose the right to pay by instalments and the full balance of £1394.53 will become payable. If this full balance is not paid within a further 7 days, recovery action will be taken against you: this may involve you in additional costs."
- It is not in dispute between the parties that this sum was not paid and no sum was paid. Accordingly, on 25th June 2007, a summons was issued addressed to Mr Salmon at his French address in the following terms:
"Complaint has today been made to me the undersigned by the London Borough of Hounslow that you being subject to the Council Tax made on: 06/03/07
For the year(s) commencing on: 01/04/07
Have not paid in full the sum(s) of:
Council Tax 01-APR-2007 TO 31-MAR-2008 31,394.53
Add court costs incurred in the issuing of the summons £3.00
Add council costs incurred in the issuing of summons £69.30
You are hereby summonsed to appear on Wednesday 18th 2007 at the hour of 2:00pm before the Magistrates sitting at BRENTFORD MAGISTRATES COURT, MARKET PLACE, BRENTFORD, to show cause why you have not paid the said sum. If you do not appear you will be proceeded against as if you had appeared and be dealt with according to the law."
And it was signed by the Justices' Clerk.
- There was a preliminary hearing of the Magistrates on 18th July 2007, which was adjourned, and at the adjourned hearing on 17th September 2007 the Lay Magistrates, of whom there were three, made a council tax liability order under regulation 34 of the Council (Tax Administration and Enforcement) Regulations 1992 in the sum of £1,394.53 in respect of the sum payable and outstanding, £72,30 in respect of the costs of complainant and a further £25 for costs, a total of 1,491.83. That is the order, and the decision to make it, which Mr Salmon seeks judicially to review.
- Permission to make such an application was granted by Charles J on 1st November 2007. I was told in the skeleton argument by Mr Choudhury that he gave permission on the basis that it appeared that something might have "gone wrong" before the Magistrates in that they had not been provided with the full history of the matter and in particular in relation to the alleged status of the property, namely whether or not it was a house in multiple occupation. The skeleton argument continued that:
"The judge considered that the other grounds of review would not have warranted permission on their own but that permission would also be allowed in respect of them so that all matters could be dealt with at the full hearing."
I asked Mr Salmon whether he agreed with that account of the comments made by Charles J and he said that he did. Having heard all the evidence and all the submissions, in my judgment I agree with Charles J that the other grounds of review for which permission was sought would not have warranted permission on their own and, for the reasons that I will give, the additional grounds which found favour with Charles J, at any rate to the extent of there being an arguable case such as to justify an oral hearing, are on analysis wholly without foundation.
- The claimant relied in essence on four discrete grounds. First, he relied on an argument that the regulations pursuant to which the summons was brought and the order was made were so fundamentally in conflict with the primary legislation pursuant to which they were made as to be ultra vires that legislation. Second, he submitted that an offer had been made by a Ms Abela on 3rd July 2007 to pay the council tax in respect of that property and for that reason the Council had lost the right, and indeed was statutorily prohibited, from proceeding with the summons against him. Third, he submitted that the property was in fact not properly characterised as a house in multiple occupation and that the decision of the Magistrates to accept that it was was to that extent wrong and should be for that reason quashed. Fourth, he said that his rights under Article 6 of the European Convention of Human Rights had been breached in that he had been deprived both by the Magistrates' conduct of the hearing and by conduct of the Council of his right to a fair trial.
- So far as the ultra vires point is concerned, the matter was put this way in his original outline of skeleton arguments by Mr Salmon. Ground 6 of the application for judicial review is in these terms:
"The said Statutory Instrument [which is a reference to the Council Tax (Administration and Enforcement) Regulations 1992] which allows for the making of a liability order before the action has fallen due under section 2 of the Local Government Finance Act 1992 creates a situation of logical absurdity and is thus outside the vires of the act."
In his original outline of skeleton argument he said this, that there should be a declaration that the regulations are ultra vires because:
"They provide for a liability order to be made when the liability itself has not yet fallen due under section 2 of the LGFA 1992 the enabling statute which states that 'liability shall be determined on a daily basis'.
It is within the Applicant's power to change at will the future circumstances that give rise to the Council Tax liability so any liability order made in advance is therefore logically absurd.
Bankruptcy proceedings commenced by the Council in May 2007 aimed to force the sale of the applicant's property which gives rise to the liability. This means that at the time of applying for the Liability Order the Council had the specific intention of changing the circumstances to which the liability relates. The Council sought the Liability Order for the period up to 30th March 2008 in the Magistrates Court, whilst already seeking to quickly force the sale of the property as a means of enforcement, which if successful would then actually nullify that liability."
That latter point, in my judgment, falls to be disregarded on the ultra vires point which stands or falls by reference to a comparison of the regulations to the Act and cannot be affected by any alleged facts in this particular case.
- In his skeleton argument prepared for this hearing, Mr Salmon repeated reference to section 2 of the Act which states that liability should be determined on a daily basis on the situation pertaining at the end of the date and submitted:
"This means that at the Magistrates Court Hearing on 17th September 2007 any liability order granted should have only included sums that had accrued for the period up to the 16th September 2007.
These were the only sums which had fallen due by that date applying this rule in Section 2 [of the Act].
The Court however made a Liability Order for the whole year's amount up to 30th March 2008.
Clearly under the terms of Section 2 of the said Act the liability for the period 17th September 2007 to 30th March 2008 had not yet fallen due.
The SI regulations are subordinate to the [Act] and cannot overrule it.
These Regulations are therefore 'ultra-vires' to the extent they are contrary to the terms of the empowering statute.
If a sum has not fallen liable under the Statute, the Regulations cannot make it fall liable.
- It is therefore necessary in considering those submissions to contrast the Act and the Regulations. Section 2 of the Act provides as follows, insofar as material:
"(1) Liability to pay council tax shall be determined on a daily basis.
(2) For the purposes of determining for any day—
(c) the person liable to pay council tax in respect of any such dwelling...
It shall be assumed that any state of affairs subsisting at the end of the day had subsisted throughout the day."
As I understood Mr Salmon's argument, it was that that shows that liability in respect to pay council tax does not arise until the day in question.
- The Council (Tax Administration and Enforcement) Regulations 1992 provide, so far as relevant, as follows:
"17.-(1) ... 'demand notice' means the notice required to be served by regulation 18(1);
(2) Except where the context otherwise requires, and subject to paragraph (5), any reference in this Part to the liable person (however expressed) is a reference-
(a) to a person who is, or in the opinion of the billing authority will be, solely liable to pay to the authority, an amount in respect of council tax in respect of a particular dwelling and a day...
(3) Any reference in this Part to the chargeable amount is a reference to the amount the liable person is or will be liable to pay.
18.—(1) Subject to paragraph (2), for each financial year a billing authority shall serve a notice in writing on every liable person in accordance with regulations 19 to 21.
20.—(1) If the demand notice is issued before or during the relevant year, the notice shall require the making of payments on account of the amount referred to in paragraph (2).
(2) The amount is—
(a) the billing authority's estimate of the chargeable amount, made as respects the relevant year or part, as the case may be, on the assumptions referred to in paragraph (3) ...
(3) The assumptions are—
(a) that the person will be liable to pay the council tax to which the notice relates on every day after the issue of the notice."
Section 23 provides, so far as relevant:
"(1) Subject to paragraph (2), where—
(a) a demand notice has been served by a billing authority on a liable person
(b) instalments in respect of the council tax to which the notice relates are payable in accordance with Part I of Schedule 1 or, as the case may be, a Part II scheme, and
(c) any such instalment is not paid in accordance with that Schedule or, as the case may be, the relevant scheme [or determination],
The billing authority shall serve a notice on the liable person stating—
(i) the amount which is the aggregate of the instalments which are due under the demand notice or any subsequent notice given under paragraph 10 of Schedule 1 and which are unpaid and the instalments that will become due within the period of seven days beginning with the day on which the reminder notice is issued;
(ii) that the amount mentioned in sub-paragraph (i) above is required to be paid by him within the period mentioned in that sub-paragraph;
(iii) the effect of paragraph (3) below and the amount that will become payable by him in the circumstances mentioned in that paragraph; and
(iv) where the notice is the second such notice as regards the relevant year, the effect of paragraph (4) below.
(3) If, within the period of 7 days beginning with the day on which a reminder notice is issued, the liable person fails to pay any instalments which are or will become due before the expiry of that period, the unpaid balance of the estimated amount [(or, as the case may be, the chargeable amount)] shall become payable by him at the expiry of a further period of 7 days beginning with the day of the failure."
Part VI, enforcement: a liability order, it is defined, means an order under regulation 34 or 36A(5). 33:
"(1) Subject to paragraph (3), before a billing authority applies for a liability order it shall serve on the person against whom the application is to be made a notice ('final notice')...
And which is to state every amount in respect of which the authority is to make the application.
(2) A final notice may be served in respect of an amount at any time after it has become due."
Section 34 provides:
"(1) If an amount which has fallen due under [(paragraphs (3) or (4) of regulation 23 ...] is wholly or partly unpaid, or (in a case where a final notice is required under regulation 33) the amount stated in the final notice is wholly or partly unpaid at the expiry of the period of 7 days beginning with the day on which the notice was issued, the billing authority may, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable.
(2) The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding.
(5) If, after a summons has been issued in accordance with paragraph (2) but before the application is heard, there is paid or tendered to the authority an amount equal to the aggregate of-
(a) the sum specified in the summons as the sum outstanding or so much of it as remains outstanding (as the case may be); and
(b) a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application up to the time of the payment or tender,
The authority shall accept the amount and the application shall not be proceeded with.
(6) The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.
- The submission of Mr Salmon is that the reason that the regulations are ultra vires the Act is that they permit of the possibility of a liability order being made against somebody in respect of money that has been demanded pursuant to a demand notice and then a final notice in respect of an amount which is an amount in respect of a period that falls after the date either on which the demand is issued or at a date on which the order is made. Thus paragraph 20 of the regulations, which provides that "if the demand notice is issued before or during the relevant year, the notice shall require the making of payments on account of ... the billing authority's estimate of chargeable amount, made as respects the relevant year or part ... on the assumption ... that the person [to whom the demand is sent] will be liable to pay the council tax ... on every day after the issue of the notice..." is incompatible and ultra vires the Act because section 2 of the Act is based on and limited to a power on the part of a liability on the part of the council tax payer to pay council tax to be determined on a daily basis.
- In my judgment, that submission is wholly unsustainable. If it were correct, it would mean that the entire system for collecting council tax in the last 16 years throughout England and Wales has been fundamentally flawed and unlawful because it is intrinsic and fundamental to that system that council tax is calculated before the start of the prospective council tax year and is collected by demands of the kind that were served in this case seeking payments by instalments or for the entire amount in advance at the option of the council tax payer and if the submission of the claimant in this case were right it would be unlawful for any system of collection to be implemented which enabled council tax to be collected other than daily in arrears or at some later period in arrears.
- The flaw, in my judgment, in the submission of Mr Salmon is that it fails wholly to take account of, and indeed until his reply submissions he did not refer the court to, the provisions of schedule 2 to the Act. Those provisions, so far as relevant, are as follows. Paragraph (1), and this is under the heading "Administration":
"The Secretary of State may make regulations containing such provision as he thinks fit in relation to -
(a) the collection of amounts persons are liable to pay in respect of council tax...
2(1) In the following provisions of this paragraph-
(a) any reference to the liable person is a reference to a person who is solely liable to pay to an authority, in respect of a particular dwelling, an amount in respect of council tax for a financial year, and includes, unless the context otherwise requires, a reference to a person who in the opinion of the authority will be so liable; and
(b) any reference to the chargeable amount is a reference to the amount the liable person is or will be liable to pay.
(2) Regulations under this Schedule may include provision -
(a) that the liable person is to make payments on account of the chargeable amount, which may include payments during the course of the financial year concerned.
(c) that in prescribed circumstances payments on account must be calculated by reference to an estimate of the chargeable amount; and
(d) that an estimate must be made on prescribed assumptions.
(4) Regulations under this Schedule may include provision -
(a) that the authority must serve a notice or notices on the liable person stating the chargeable amount or its estimated amount and what payment or payments he is required to make (by way of instalment or otherwise)...
(5) Regulations under this Schedule may include provision -
(a) that if the liable person fails to pay an instalment in accordance with the regulations, the unpaid balance of the chargeable amount or its estimated amount is to be payable on the day after the end of a prescribed period which begins with the day of the failure; and
(b) that any amount paid by the liable person in excess of his liability ... must be repaid or credited against any subsequent liability.
- In my judgment, it is crystal clear from those provisions, which are the provisions enabling the regulations which are said to be ultra vires the Act, that, when it comes to making regulations for the collection of council tax, the Act specifically empowered or authorised regulations to be made by reference to collecting amounts which a liable person will be liable to pay in the future and that the regulations may make provision, as the Secretary of State thinks fit, in relation to the collection of amounts which persons are liable to pay in respect of council tax and it is perfectly plain that this contemplates regulations made to enable collection of council tax prospectively rather than, or as well as, if necessary, in arrears. In my judgment that ground fails.
- The next ground is by reference to an alleged offer to pay. The claimant, Mr Salmon, contended that the property was not a house in multiple occupation because it was his contention that there was at the time only one tenant of the first and second floor maisonette and that was a Ms Abela. As I have indicated, regulation 34(5) provides that if, after a summons has been issued in accordance with paragraph (2) but before the application is heard:
"There is paid or tendered to the authority an amount equal to the aggregate of-
(a) the sum specified in the summons as the sum outstanding ... and
(b) a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application up to the time of the payment or tender,
The authority shall accept the amount and the application shall not be proceeded with."
- Mr Salmon's submission is that an offer was made on 3rd July by Ms Abela to the council to pay the council tax and therefore that the provision in section 5 is triggered and the local authority, the defendant, was bound to accept that amount and, in particular, the application shall not be proceeded with, that is to say that it was unlawful for the Council to proceed with the application and therefore for the Magistrates to act or make a liability order on that application.
- There were two issues that arose out of this ground. The first was an evidential question as to whether such an offer was made such as to satisfy the condition of regulation 34(5) and the second was, if such an offer was made by Ms Abela, whether it satisfied section 34(5) notwithstanding that it was not made by Mr Salmon himself or an agent on his behalf.
- As far as the first point is concerned, the evidential position is this. At the hearing, the only people to give live oral testimony were Mr Winter on behalf of the Council and Mr Salmon on his own behalf. Mrs Abela was present in court but did not go into the witness box and give oral testimony. She did, however, produce a witness statement dated 10th July 2007 which was tendered to the Magistrates' Court by Mr Salmon and which said, as far as material:
"1. My name is Catherine Abela, I reside in the upstairs flat at 144 Wellesley Road, Chiswick, London, W4 3AP.
2. Before I moved into the flat I was told by the owner John Salmon that the occupants were responsible for paying the Council Tax for the property.
3. On 3rd July 2007 following a call from him I telephoned the London Borough of Hounslow Civic Centre to enquire about paying the Council Tax for the flat.
4. The girl that I spoke to said that I didn't have to pay the tax as I was not the person named on their computer system as being responsible for paying it at that address.
5. I confirm that this is a true and accurate statement of the facts."
- There is a note in summary form of what occurred at the hearing prepared by Mrs Armitage, who was legal investor at Feltham Magistrates' Court, in which she recorded Mr Salmon on affirmation saying:
"In summary payment has been offered by my tenant who is joint and severally liable."
She records Mr Winter as saying:
"The billing authority determine liability. If someone comes in and says they want to make a payment on account then they can, but if they are not liable then they don't have to pay. The person liable receives the bill. There has not been full payment on account by anybody."
- Mr Choudhury on behalf of the defendant submits that, based on that evidence, it was not only open to the Magistrates to find that there had been no tender of an amount equal to the aggregate not only of the council tax but also of the costs reasonably incurred by the authority but that that was, on the evidence, the correct finding. Ms Abela did not in her witness statement say that she offered to pay the council tax but merely that she enquired about paying it. Moreover, she did not recall the girl that she spoke to as having said that she refused to accept any such offer but merely that she did not have to pay the tax, which is a very different thing and, insofar as Mr Salmon is recorded by Mrs Armitage as having said that payment had been offered by his tenant, insofar as that evidence was inconsistent with the written witness statement of Ms Abela to the extent that he suggested that it had been an offer rather than an enquiry, in my judgment the Magistrates were entirely entitled to not accept that evidence, not least having regard to the fact that Ms Abela was present in court and could have been called as a witness by Mr Salmon in order to corroborate his version of what he said occurred as distinct from, and in preference to, her own signed written version of what occurred.
- In front of me, Mr Salmon said that in his evidence to the Magistrates he said that she had told him that she had phoned the Council and said that she wanted to pay but that the girl said that she could not accept payment. That, of course, is inconsistent with the account given by Ms Abela in her witness statement. However, and in any event, he went on to say that he could not be certain whether he said to the Magistrates' Court that Mrs Abela had told him that she had said to the Council girl that she had offered to pay the costs as well as the council tax liability. That being so, whatever the position in relation to any difference of evidence as between Ms Abela and Mr Salmon on the question of whether it was an offer or merely an enquiry, the offer, had it been made and had the Magistrates found that it had been made, would not have been sufficient to satisfy the requirement of section 35(4) of the regulations in that it was not a tender of an amount including in respect of the defendant Council's costs. In those circumstances, the local authority was not obliged not to proceed with the application.
- It is in any event not the function of this court to second guess findings of fact made by the Magistrates' Court. There is nothing in the evidence as to what occurred in my judgment that brings this case within that very exceptional category of cases in which there may be jurisdiction for the Administrative Court to overturn a finding of fact made by a Magistrates' Court. It is in any event to be observed that Mr Salmon had it well within his ability to call Ms Abela to give evidence and did not do so.
- Mr Choudhury had an alternative argument, which is that, even if the Magistrates were wrong not to find that Mrs Abela had indeed tendered the council tax sum and the costs, section 34(5) would not have been triggered because section 34 (5) only applies to a payment made by the defendant to the summons, that is to say the person liable to pay the council tax, or an agent on his or her behalf. It is not necessary, having regard to my previous finding, for me to decide that fact but I express the view that that submission does not seem to me to be correct. It does not seem to me that, in circumstances where a third party, even if not an agent of the defendant, tenders a payment a fortiori where such a payment is accepted by a local authority that has issued a summons for non-payment against the defendant, in such circumstances the authority is not obliged to accept the amount or, if it has accepted the amount or irrespective of whether it has accepted it or not, it is nonetheless entitled to proceed with the application against the defendant. The purpose of issuing a summons is to secure payment of the sum due. If the sum due is paid or tendered, it does not seem to me that there would be any legitimate interest on the part of the Council in proceeding with an application against the defendant, notwithstanding that he is the person liable in respect of that amount.
- The next ground relied on by Mr Salmon in support of his application was that the Council was wrong to designate the first and second floor maisonette as a house in multiple occupation and/or that the Magistrates' decision is flawed insofar as they decided or to have been taken to have reached their decision on the basis that it was or even that it had been so designated by the Council.
- There are two aspects to this. One is the underlying question as to whether the first and second floor property was at the relevant time a property in multiple occupation within the meaning of paragraph 2C(b)(1) of the Council Tax (Liability for Owners) Regulations 1992. The second is, irrespective of whether it was or whether it was not, whether that was a matter that would provide Mr Salmon with a defence to the summons in the Magistrates' Court for non-payment of the sum demanded in March.
- Section 6 of the Act provides as follows:
"The person who is liable to pay council tax in respect of any chargeable dwelling and any day is the person who falls within the first paragraph of subsection (2) below to apply, taking paragraph (a) of that subsection first, and (b) next, and so on."
(b) he is such a resident and has a leasehold interest in the whole or any part of the dwelling which is not inferior to another such interest held by another such resident;
(c) he is both such a resident and a statutory secure and introductory tenant to the whole or any part of the dwelling;
(d) he is such a resident and has a contractual licence to occupy the whole or any part of the dwelling;
(e) he is such a resident; or
(f) he is the owner of the dwelling."
And Mr Salmon submits that prima facie that means that, as in ordinary cases, liability for council tax is upon the tenant resident of the property.
- However, section 8 provides as follows:
"(1) Subsections (3) and (4) below shall have effect in substitution for section 6 or (as the case may be) section 7 above in relation to any chargeable dwelling of a class prescribed for the purposes of the subsection.
(2) Subsection (3) and (4) below shall have effect in substitution for section 6 or (as the case may be) section 7 above in relation to any chargeable dwelling of a class prescribed for the purposes of this subsection, if the billing authority so determines in relation to all dwellings of that class which are situated in its area.
(3) Where on any day this subsection has effect in relation to a dwelling, the owner of the dwelling shall be liable to pay the council tax in respect of the dwelling and that day.
- Such prescription as is referred to or contemplated by section 8 occurs in relation to houses in multiple occupation by virtue of the Council Tax (Liability of Owners) Regulations 1992, which provides so far as material as follows:
"The following are the classes of chargeable dwellings prescribed for the purposes of section 8(1) of the Act."
"... a dwelling which...
(b) is inhabited by a person who, or by two or more persons each of whom either-
(i) is a tenant of, or has a license to occupy, part only of the dwelling."
In other words, in the case of a dwelling which is inhabited by somebody who is a tenant or has a licence to occupy only part of the dwelling, the liability for council tax is on the owner, namely in this case Mr Salmon.
- The background which I referred at the beginning of this judgment is that inquiries made by the Council or on behalf of the Council satisfied the Council that the first and third floor property was indeed a property in multiple occupation within the statutory definition to which I have referred. There is before the court a witness statement of Ms McDonald, who was a visiting officer employed by Liberata UK, who says that she visited the property on three occasions to check residency situation as that would have a bearing on whether the property should be treated as a house in multiple occupation, in which case liability for council tax would lie with the owner:
"The electronic records system shows that I made a visit to the property on approx 6/10/1997 and spoke to a tenant who told me that there were three tenants resident, all on separate tenancy agreements. This information indicated that the property was an HMO and a note to that effect was made on the system.
I next visited the property on 26/6/2000 but was unable to gain access. I spoke to two persons at the same location. The man from the 1st/2nd floor told me some tenants were moving in to the property and that the last tenant would move in on 1/7/2000. He told me that they were on separate tenancy agreements. I did not view the property at this stage. Shortly afterwards, a tenant at the property, Rosa Arques, contacted me and I made an appointment to view the property on 5/7/2000.
This visit was carried out, and on the 1st floor I found one bedroom with a locked door which was occupied by a male tenant. There was also a kitchen, sitting room, bathroom and WC on this floor. On the 2nd floor there were three bedrooms without locks on the doors. Ms Arques told me that she pays for her room and shared use of the kitchen and bathroom. When asked, she told me that if one tenant leaves, the landlord would advertise in 'Loot' for another tenant and the rent for the remaining tenants does not increase. Ms Arques told me that the tenants all moved in at different times, that she herself had been resident for approximately one year, and that the most recent tenant had moved on 1/7/2000. Once again, this information appeared to confirm the property was properly designated as HMO.
On return to the office, I completed a report detailing the above, and gave the paperwork to my colleague Robert Winter. I made no further visits to the property."
- Mr Winter made a witness statement for the purposes of this application and referred to the visit reported to him by Mrs McDonald. Mrs McDonald spoke to a tenant who told her that there were three tenants all on separate tenancy agreements (this is in relation to the 6th October 1997 visit and that Mr Salmon was the owner:
"Mr Salmon lived in France and the tenant that Mrs McDonald spoke to told her that he would be returning soon. Mrs McDonald asked the tenant to get Mr Salmon to contact her but no contact was made. From this information it appeared that the house was a house in multiple occupation for the purposes of the Local Government and Finance Act 1992 and therefore Mr Salmon was liable to pay council tax.
From this notepad entry ... the account remained in the name of Mr Salmon for Council tax liability.
On 9/3/1998 Mr Salmon wrote to the Council stating he was the freeholder of the property but that the occupants were liable. Mr Salmon did not supply names, dates or copy tenancy agreements. Between 19/2/1999 to 13/1/2000 Mr Salmon corresponded with the Council tax department repeatedly stating he was not liable for any Council Tax and that the Council should be asking the tenants for payment. The Council Tax department sought tenancy agreements but Mr Salmon did not send the required information. On two occasions the Council asked for proof the property was rented out and to whom. Such documents would have assisted him in determining whether the property was HMO or not as claimed by Mr Salmon. Mr Salmon at this stage was notified of his right to appeal to the Valuation Tribunal. Mr Salmon responded giving names but no tenancy agreements or proof of rental. I am not aware of any valid appeal made to the Valuation Tribunal by Mr Salmon.
Further bills for council tax and recovery correspondence were issued. In 2000, Mr Salmon took the step of involving a Councillor, Councillor Connerly in the matter...
A further visit to the property was made by Mrs McDonald on 21 June 2000 in order to determine whether the HMO designation in 1997 was still correct. The details of that visit and the subsequent visit on 26 June 2000 are set out in Mrs McDonald's statement and in the system record at p.105. Suffice it to say that it was clear from those visits that there was more than one tenant at the property, that each tenant was subject to separate tenancy agreements in respect of only part of the property. The property was therefore confirmed to be HMO status and correspondence to that effect was sent to Mr Salmon's address in France on 22 June 2000. Mr Salmon was once again notified of his right to appeal to the Valuation Tribunal but was also told that Council Tax would remain due and payable throughout any appeal process.
Mr Salmon failed to pay any Council Tax despite further demands and a further liability order was issued against him on 25 July 2001. He indicated that he would appeal that liability order and continued to assert that he was not liable as he was not an occupant. We wrote to Mr Salmon on 3 July 2002 confirming once again that the property had been designated HMO and that he remained liable for Council Tax pending the outcome of any appeal. But Mr Salmon continued to maintain his intransigent stance as to liability."
He then refers to separate proceedings continuing with regard to a statutory demand that was made for liability going back from 1998 to 2006.
- I should add in the context of the issue in relation to the alleged offer that Mr Winter in his witness statement referred to Mr Salmon's witness statement and his written evidence in which he said that the tenant had made an offer of payment by telephone to the revenues officer but that that offer had been refused:
"The magistrates questioned me on the proffering of payment and I stated that payments would be accepted from third parties but this would not change the person liable for council tax."
- Dealing with the HMO issue at the Magistrates' Court, he said that issue:
"... was addressed to me as a question and I stated that the designation of the property as HMO meant that the landlord, not the tenant or tenants, would be liable for the tax.
He said the Magistrates retired after asking a question in which they appeared to be confused in relation to the definition of multiple houses and multiple occupation under the Housing Act and under the Act with which we are concerned. He said that the Magistrates retired and returned granting the liability order:
"Mr Salmon was claiming that the liability was in the tenants' names and that furthermore the tenant was willing and had contacted the Revenues section to make payment but that payment had been refused by the council. The Court did not accept that explanation and issued him with a liability order."
- In the acknowledgment of service to this application by the first defendant, the Magistrates' Court, under "Decisions and Reasons" the following is stated:
"The Court was satisfied that an amount had fallen due for 1st April 2007 to 31st March 2008 for the property at 144 Wellesley Road, Chiswick, that the amount was unpaid and that Mr Salmon was the person liable for payment. A liability order was made in accordance with regulation 34(6) of the Council Tax (Administration & Enforcement) Regulations 1992. Mr Salmon accepted that he had a freehold interest in the property. Evidence was given on behalf of the Local Authority that the property was designated as a multiple occupancy premises, which the Justices accepted. The Justices therefore found the person liable for the council tax to be Mr Salmon as the owner of the premises, and that the tenants as occupiers were not liable."
- There is produced before the court a note of Mr Winter's note which he prepared for the purposes of the hearing. So far as the multiple occupation point is concerned, they record as follows:
"In this case the property has been designated as a house in multiple occupation under [the relevant statutory instrument]. This means that the resident tenants are not liable either because their rental agreements are for part only of the property or the make up of the property is adapted for the purposes of multiple occupations. In this particular case the property was inspected on the 5/7/2000 and found to contain tenants with one bedroom with a locked door occupied by a male tenant on the first floor also a tenant Ms Rosa Arques who pays for her room only the rent does not increase if other tenants not resident and the landlord advertises in loot for a replacement tenant. On this basis the property was designated as in multiple occupation. Mr Salmon appealed and received a reply letter on the 22/6/2000 confirming the liability status as a hmo and giving him the right to appeal to the valuation tribunal under section 16 of the finance act."
And all this came under a section heading "Details if expanded discussion", which I take to be points in reserve should they arise.
- That is in a sense not surprising because it reflects the primary submission of Mr Choudhury on this matter, which is that the question of whether in fact the property was a house of multiple occupation such as to satisfy the statutory criteria is irrelevant, not only for the purposes of this court but also for the purposes of the Magistrates' Court. That is because paragraph 57(1) of the Council Tax (Administration and Enforcement) Regulations 1992 provides:
"Any matter which could be the subject of an appeal under section 16 of the Act or regulations under section 24 of the Act may not be raised in proceedings under this Part."
"This Part" is a reference to Part 6 of the Regulations which deal with enforcement and include section 34, which empower the billing authority to apply to a Magistrates' Court for an order against the person by whom an amount is payable by virtue of a notice having not been complied with.
- Section 16 of the Act provides:
"(1) A person may appeal to a valuation tribunal if he is aggrieved by-
(a) any decision of a billing authority that a dwelling is a chargeable dwelling, or that he is liable to pay council tax in respect of such a dwelling."
- Thus, the decision by the local authority that Mr Salmon was liable to pay council tax in respect of the first and second floor property, and the decision that that was because it was a house in multiple occupation, was a decision which he had a right under section 16 to appeal against to a valuation tribunal if aggrieved. Indeed, he was notified of the existence of that right in this very case but told me that he did not avail himself of that right in respect of this period, that is to say 2007/2008, prior to the summons or the date of the hearing in front of the Magistrates. If it were indeed the case that it was not for the purposes of 2007/2008 a house in multiple occupation for the purposes of the Act, then he would have had a right to appeal to a valuation tribunal on that ground and on that ground, had it been accepted by the Tribunal, the decision of the defendant that he is liable to pay council tax for 2007/2008 would have been overturned.
- In those circumstances, I do not have the slightest doubt that that is a matter which could be the subject of an appeal under section 16 and therefore that by virtue of paragraph 57 of the Regulations it is a matter that could not be raised in the proceedings in front of the Magistrates' Court for non-payment of the sums contained in the demand and the arrears notice. In those circumstances, it seems to me that this ground of appeal is hopelessly misconceived.
- I raised with Mr Choudhury in argument the question of whether, if Mr Salmon was right that he was entitled to raise this point in front of the Magistrates, then would the relevant point of inquiry in relation to the findings of the Magistrates' Court be on the question of whether they were right to find that it was a house in multiple occupation or rather that it had been so designated by the local authority. The mere statement of those alternative questions demonstrates how misconceived this ground of appeal or application is because it is simply not part of the function of the Magistrates' Court in hearing a summons such as that in this case to go behind the making of the demand notice to inquire into the validity of such an underlying decision as whether the defendant to the summons is the person liable to pay council tax for the property in respect of that period for that amount. Those are matters in respect of which, if there is a sense of grievance, the defendant is entitled to exercise his right of appeal to the Tribunal. It is therefore not only unnecessary for me to make a finding on this alternative point but really rather strained. Nonetheless, it does seem to me that, for the sake of completeness, insofar as it is helpful to do so, there would be no ground on which this court could quash the order even if the point about section 16 and section 57 were not right. It seems to me that on the state of the evidence that was before the court they were entitled to accept the evidence from the second defendant to the effect that the property had been designated a house of multiple occupation as satisfying the criteria and that that designation was indeed a true reflection of the underlying evidence, having regard to the background of the inquiries made earlier. I should say that in argument Mr Salmon made a forensic point in relation to Mr Winter's note for the hearing that the alleged reply that they received from Mr Salmon was 27th June 2000 on his note whereas the inspection was on 5th July 2004 and therefore that could not be right. That is, of course, a logically correct observation of Mr Salmon but in my judgment it goes no further than to show that Mr Winter's note had made an error in recording the detail and indeed the detail of those visits is recorded in the Council document which is at page 105 of the defendant's bundle. The evidence of Mrs McDonald is reflected in a note prepared on the Council records and in relation to the 20th June it states:
"Having reviewed the paperwork the claim is that the upstairs flat is subject to a lease agreement inferior to Mr J Salmon co ownership urgent visit to be done as last visit in 97 lead to determination of HMO status 1 to establish if 1st and second floors further subdivided or whether whole property still in use and in multi occupation with separate tenancy agreements for each room Hillary doing visit on 21/6/00 to determine RBW, 21/6/00 - visit made ... no, response, card left - HW 26/6/00 - 2nd visit made, spoke to the lady at the ground floor who confirmed that there are two flats. Also spoke to a man at the 1st/2nd floor who said that there were tenants moving in and that the last tenant would be moving in on 1/7/00. Said that they were on separate tenancies...
5/7/00 - visit made re possible HMO status. There are four bedrooms, only one of which has a lock on the door. The tenants do not have a written TA [I take that to be tenancy agreement]. Was advised by Ms Arques that if one tenant leaves, her amount of rent does not increase. She told me Mr Salmon would then advertise in Loot to get another tenant. The tenant all moved in at different times - Ms Arques has been resident approximately 1 year, the most recent tenant moved in on 1/7/00. Details passed to RBW [who I take to be Mr Winters]."
- These are findings of fact, were they made, by the Magistrates which in my judgment they were entirely entitled to make and in any event there is no basis put before the court such as would justify intervention on the ground that they had reached a perverse decision or one which no reasonable court could have reached or one which was completely contrary to the evidence.
- In those circumstances, that ground in my judgment is wholly unsustainable and that leaves only the Article 6 point which Mr Salmon advanced in this way before me. He said he did not have a fair trial because: (1) the Magistrates failed to demand from the council any evidence of occupancy of the property; (2) they failed to consider Ms Abela's evidence, despite the fact that she attended the court to answer any questions they had; (3) the Magistrates' Court rubber-stamped the Council's historic description of house of multiple occupation; (4) the Council failed to respect his right to a fair trial by designating the house as HMO when it was not: it should have verified the facts and put those before the court. Next, he said that the Act put the Council under a duty to bill the tenant, in this case Mrs Abela, and they should have done so. Having not done so, the trial was unfair because the Council tried to cover up their breach of statutory duty. They should have asked Mrs Abela questions about her tenancy and the Council were in breach of his Article 6 rights because they were seeking from him money that they should have asked from Mrs Abela: that was a breach of natural justice.
- In my judgment, these are all hopelessly misconceived submissions. It was not for the Magistrates to demand from the Council evidence in relation to occupancy of the property, it was for the Council and Mr Salmon to adduce such evidence as they respectively thought fit. In any event, as I have indicated, the question of multiple occupancy was not a matter relevant to what they had to determine because of the section 57 provision. So far as failing to consider Ms Abela's evidence, despite the fact that she attended court to answer questions, the position is, and it is not contested, that Mr Salmon put in her witness statement, he chose not to call her to give oral testimony and it was entirely a matter for him to decide what evidence to put before the Magistrates and there is no evidence to suggest that they failed to consider her written witness statement. So far as the allegation that they rubber stamped the Council's historic description of HMO, the fact is that the question of the HMO status was not a matter that they were required to decide or upon which their ultimate finding that they should make a liability order was dependent and in any event, in my judgment, for the reasons given, there is no warrant in the submission that what they did was rubber-stamping anything.
- So far as the submissions in relation to the Council are concerned, the submission that they breached Article 6 because they designated the property as HMO when it was not and that they should have verified it seems to me to have nothing to do with the trial at all. It is simply a complaint about a prior matter. So far as the allegation of a cover up is concerned, it is first of all in my submission entirely unsupported by any evidence and in any event, even if it were supported by evidence, would not be a matter constituting a breach of his Article 6 rights, whatever other remedies it might give rise to. The same can be said to apply to the complaint that they did not ask Mrs Abela questions about the tenancy. She was not adduced as a witness: it was not therefore for them to cross-examine her. So far as the submission that it was a breach of Article 6 because they should have sought money from Mrs Abela, again that is not a matter that goes to Article 6 or the trial and is in any event, in my judgment, simply wrong on the material that I have referred to.
- For all those reasons, in my judgment this application fails.
- MR CHOUDHURY: My Lord, I am grateful for your Lordship for sitting to this late hour to deliver the judgment. That just leaves costs, which the Council does apply for on the basis that costs follow the event, Mr Salmon has failed in all his grounds of application and it appears to the Council there is no reason why --
- MR JUSTICE STADLEN: And you ask for the costs of what?
- MR CHOUDHURY: My Lord, that is where we are in a little bit of difficulty because I do not have a schedule, which was delivered to Mr Salmon. The costs would be for the proceedings generally, given that we have now concluded the matter. Because the matter has finished in the course of a day, the court is obliged to consider whether summary assessment is appropriate, notwithstanding the fact that a schedule has not been submitted. I can say to the court that the costs to date up to the time of the permission hearing were in the region of a thousand pounds. That is the Council's costs.
- MR JUSTICE STADLEN: The costs up to today? The costs up to permission hearing?
- MR CHOUDHURY: The costs up to permission hearing were a thousand pounds, not including counsel's fees.
- MR JUSTICE STADLEN: Were counsel there?
- MR CHOUDHURY: Yes, and I seem to recall, my Lord, it was in the region of £2,000.
- MR JUSTICE STADLEN: Counsel's fees?
- MR CHOUDHURY: Yes, and, my Lord, as for the costs to date, that is from the permission hearing up to now, I am in the position of having to give your Lordship an estimate, which is the same again for the authority, a thousand pounds, and counsel's fees, including skeleton argument and preparation for the hearing and the hearing itself are in the region of £5,000. So the total is, my Lord, an estimate of not less than £7,000.
- MR JUSTICE STADLEN: Well, I make that £8,000.
- MR CHOUDHURY: My Lord, yes. You are absolutely right.
- MR JUSTICE STADLEN: Is the court to obliged to make a summary assessment or only to consider doing it?
- MR CHOUDHURY: No, my Lord, your obligation is only to consider whether or not to make a summary assessment order and the fact that we have not provided a schedule in accordance with the practice direction is a matter that you are entitled to take into account.
- MR JUSTICE STADLEN: Mr Salmon, two questions. First of all, what are your submissions in relation to whether I should make an order as to costs?
- THE CLAIMANT: I would prefer if a costs order is going to be considered that I have a chance to actually go over the summary first of the costs. I do have an additional --
- MR JUSTICE STADLEN: Well -- yes.
- THE CLAIMANT: -- point, which if I can just ask very quickly: do I have no automatic right of appeal from this hearing?
- MR CHOUDHURY: My Lord, it is not an automatic right. Permission is required and permission in first instance should be requested from your Lordship and, if that fails, Mr Salmon would have the right to seek permission from the Court of Appeal.
- MR JUSTICE STADLEN: And the test it whether there is a realistic prospect of success.
- MR CHOUDHURY: A real prospect of success, yes.
- MR JUSTICE STADLEN: You do not have an automatic right to appeal but you can seek permission to appeal, in the first instance from me and if I refuse it then from the Court of Appeal.
- THE CLAIMANT: And the European Court of Human Rights?
- MR JUSTICE STADLEN: Well, that is a matter for you.
- THE CLAIMANT: Do I have permission to go direct there or do I have to --
- MR JUSTICE STADLEN: That is a matter you will have to take up with the European Court of Human Rights.
- THE CLAIMANT: Because I find that there is a couple of grounds which --
- MR JUSTICE STADLEN: Well, just before we get on to that I just want to deal with costs. The Council is making an application for an order that you should pay the costs of the entire action. Because this application occupied a day, albeit a very long day, the court is required to consider whether to make a summary assessment of those costs, if the court is otherwise minded to make a costs order, or, if not, it can simply order that the costs should be taxed in the ordinary way. Now, on the first question, what do you say in answer to the application that you should pay the costs? The normal rule is costs follow the event.
- THE CLAIMANT: Well, to my mind the Council should have accepted money from Mrs Abela when she called and they should have transferred the account into her name. To me this is a totally ridiculous situation which still has not been sorted out and what is going to happen now is that we go to the Magistrates Court again in a few weeks time, because we will get another demand issued and another summons and I will go again and we will have the same argument and we will just go round in circles and it --
- MR JUSTICE STADLEN: The issue that you need to focus on, Mr Salmon, which I have to decide, is whether the costs of your judicial review application have been unnecessarily incurred by the defendant because there was not merit in it and therefore, whatever the underlying disputes between you outside this judicial review application, that --
- THE CLAIMANT: I disagree that there was no merit in the claim. There is an unresolved situation.
- MR JUSTICE STADLEN: Mr Salmon, please do not interrupt. That the costs of this application for judicial review should be paid for by you as the losing party on the basis that the costs of defending it have turned out to be accepted by the court as having been unnecessarily incurred because the application was without substance, without merit. What is your response to that?
- THE CLAIMANT: The application for a judicial review was an honest attempt to try and get this situation concerning the council tax resolved and for it to be billed to the person who is the tenant of the flat and for the payments --
- MR JUSTICE STADLEN: Mr Salmon, could you stand up if you are making submissions please.
- THE CLAIMANT: I am sorry, and we have not advanced a single inch today. In fact we have gone backwards and we are back into a circle, we are back going round the mountain again. I have done everything in my power to get this sorted out. This was an attempt to get it sorted out so that Ms Abela, who is willing to pay the money, paid the money, was billed, so I do not think they have any right to ask in those circumstances. They should have just avoided this by transferring the account to Ms Abela. I would have withdrawn the judicial review, had they done that.
- MR JUSTICE STADLEN: Thank you very much. Is there anything else you want to say?
- THE CLAIMANT: Well, I have said it already. I do think that if there is going to be any assessment of the costs I would rather actually go through taxation so I have some idea of how the costs are broken down.
- MR JUSTICE STADLEN: Yes.
- In my judgment, the claimant should pay the costs to the defendant of the application, that is to say the costs from the inception of the application and the application for permission to make the application through to today. The application was in my judgment wholly without merit and has put the Council to unnecessary expense in defending it and there are no reasons why the normal rule that costs should follow the event should not be applied in this case.
- So far as summary assessment is concerned, no schedule of costs was forthcoming from the second defendant -- when I say the defendant I meant of course the second defendant, not the first defendant. The second defendant has not produced a schedule of costs. The claimant, Mr Salmon, submits in those circumstances that it would be wrong not to have -- for him to have the opportunity of challenging those costs on a detailed assessment. In my judgment he is right in that submission. Accordingly, I do not make a summary assessment and my order is that the costs should be taxed.
- Now, is there anything else?
- THE CLAIMANT: Yes. I presume that before I apply to the European Court of Human Rights I am supposed to seek permission to appeal from you, so I do ask for permission to appeal on a number of grounds, not least that section 2 of the Local Government Finance Act says that liability falls due on a daily basis. Now, surely then the status of a building as an HMO should be terminated on any day when multiple occupation definitively ends. That would be a clear result of that --
- MR JUSTICE STADLEN: Sorry, state of HMO...?
- THE CLAIMANT: The status of HMO should fail. It should be terminated on the day when any multiple occupancy comes to an end.
- MR JUSTICE STADLEN: Yes. Next?
- THE CLAIMANT: My papers just flipped open, it must have been an angel who came in and turned them over, on section 66 of the Local Government Finance Act. 66(2)(b): "The matters mentioned in subsection (2) below shall not be questioned accept by an application for judicial review". (2)(b) says these matters are a determination made under section 8(2), which is a determination made as an HMO. So we appear to have a problem because you actually yourself said there would be no ground on which this court could quash the order, the ground is unsustainable. Well, I am sorry, you have got every ground, accordingly to that.
- MR JUSTICE STADLEN: Next.
- THE CLAIMANT: I think that is clear and again on human rights grounds. I do not feel I have had a fair trial today. I do not actually feel that the interests of natural justice have been served.
- MR JUSTICE STADLEN: Why?
- THE CLAIMANT: Because there has been a total failure to really consider what I have been saying about ultra vires and it appears now, from what I have just discovered on section 66, that, you know, the basis -- you based your judgment on paragraph 57 of the regulations and they clearly contradict section 66(2)(b) of the Act, so again --
- MR JUSTICE STADLEN: You have not had a fair trial because I have not considered a matter that you have not drawn to my attention: is that your submission?
- THE CLAIMANT: You said there would be no ground on which this court could quash the order.
- MR JUSTICE STADLEN: Next?
- THE CLAIMANT: I think I have said enough.
- MR JUSTICE STADLEN: This is an application for permission to appeal. Three grounds were advanced. The first is that by section 2(1) of the 1992 Act the status of HMO should end as and when the multiple occupation comes to an end. I did not understand how that submission bears on any of the findings that I have made. The second was by reference to section 66 of the act, a provision giving limited rights of judicial review in respect of findings in relation to multiple occupancy. This was a matter which was not referred to by anybody in the hearing in front of me, least of all by the claimant, and he has advanced no coherent grounds as to why that section should in any way undermine the decision which I have made and, third, he applies on the basis that he has not had a fair trial because I have failed to consider what he said on ultra vires, in particular in relation to section 66. Since he did not mention section 66 in any of his submissions or draw it to my attention, it is very difficult to see how that could constitute any basis for an argument that he has not had a fair hearing. In my judgment there is no realistic prospect of success on an appeal and I refuse leave. (pause) Thank you very much. Anything else?
- MR CHOUDHURY: No, my Lord.
- THE CLAIMANT: I just feel I have to say that Jesus is waiting for you judges to see the light.
- MR JUSTICE STADLEN: He is waiting for...?
- THE CLAIMANT: Jesus is waiting for you judges to see the light.
- MR JUSTICE STADLEN: Thank you very much.
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