Listing Officer, R (on the application of) v Royal National Institute for the Blind & Ors

MR JUSTICE MITTING: This is an appeal from the decision of the Somerset Valuation Tribunal on 27th January 2003, by which it allowed an appeal by the Royal National Institute for the Blind against the Listing Officer's decision that four units within Kathleen Chambers House, Burnham-on-Sea, should be separately assessed for council tax purposes, or, in the jargon, disaggregated. The facts were broadly agreed and were set out in a document before the tribunal and before this court.

Kathleen Chambers House is a two-storey purpose built brick and tile building completed in 1995 and furnished in 1996. It was built to replace a hotel which had been converted in the 1950's to be a care home for deaf-blind and blind persons. All of the residents of the old home were rehoused in the new one when completed.

The new building has been purpose designed and purpose built for the permanent residential care of blind and partly sighted persons over the age of retirement. Throughout those parts to which such persons have access, the home is equipped with features to insure their safety and assist their navigation: for example, handrails, braille signs, light fittings, tactile flooring, ramps, talking lifts and hearing aid induction loops.

Parts of the care home which are not suitable for access by the visually impaired, and which are designed for use by care staff are not so equipped. Some other parts, intended for the use of residents, can only be used with the assistance of care staff.

The various parts of the building thus described were helpfully identified in a list in paragraph 7.6 of the statement of common ground:

The care home has an E-shaped design with two courtyard style gardens laid out with scented plants and protective handrails to the flowerbeds. The gardens include a greenhouse and potting shed and an exercise area for guide dogs, together with a litter. There is a garden of rest and a visitors' car park in addition.

Within the building were 36 units of accommodation to be occupied by the residents. Each was provided centrally with electricity, light and power, heating, and hot and cold water. In addition, each of them had emergency pull-cords, a work-top and sink, two base and wall cupboards, a refrigerator, and a cooker or hob unit and separate oven.

Thirty-two of the units of accommodation contained only one room, in which the kitchen equipment thus described was to be found, plus a separate en suite shower room with a water closet, a wash-hand basin and an adapted shower with outward opening removable doors and an overriding lock.

The listing officer determined, originally, that each of those rooms was to be treated as a self-contained unit, and so was to be separately assessed for council tax purposes. But at a site visit he determined that they were not so to be treated but formed part of the building, and were to be assessed for council tax purposes as part of it.

There were four other units, each capable of accommodating two people. Two rooms, rooms 1 and 7, had one bedroom with an en suite bathroom, with the equipment already described, and a separate living room. The living room had within it the kitchen facilities which I have described. Two of the rooms, rooms 2 and 18, had two bedrooms and a shared bathroom. One of those had a separate kitchen area. This appeal concerns only those four units.

The statutory framework for determination of this appeal is set out in the last paragraph on page 432 and the first paragraph on page 433 of the judgment of Sullivan J in Beasley (Listing Officer) v National Council of YMCAs [2000] RA, page 429. It is not necessary for me to repeat what Sullivan J set out there.

It is common ground that the domestic property within Kathleen Chambers House is "a single property" for the purposes of the Council Tax (Chargeable Dwellings) Order 1992. The sole question which the tribunal had to decide was whether each of the four units was "a self-contained unit" for the purposes of Article 3, as defined by the relevant parts of Article 2 which read:

The Valuation Tribunal's findings were as follows:

The tribunal's findings can be distilled into three. First; "independent living" can be accommodated within the four units under consideration, and within all of the other units in the building as well. Secondly; the RNIB did not intend to create units for "entirely independent living." Thirdly; there is no relevant difference between the four units and the remainder.

Judgments of the High Court have identified factors which either, (1) should not be taken into account at all or (2) should not be treated as of decisive effect, as follows. As to those which should not be taken into account at all, first; the use to which a part of a building is actually put. (See the judgment of Ognall J in Batty v Burfoot [1995] RA 299, at page 308) and Beasley (Listing Officer) v National Council of YMCAs [2000] RA 429 at page 435. Secondly; the impracticability of the sale of part of a building (see Batty at page 311). Thirdly, the subjective intention of the builder or developer (see Coleman v Rotsztein [2003] EWCH 1057 Admin).

As to those factors which should not be treated as decisive two have been identified. First; the terms of the grant of planning permission (see Batty at page 306). Secondly; the absence of a bath or shower within the unit (see Clement v Bryant [2003] EWCH 422 Admin at the end of paragraph 7).

Coleman and Rotsztein identifies what should be taken into account: "what had physically been constructed" (see paragraph 5).

Beasley identifies one factor which may be taken into account at page 435:

Both counsel submit that a two stage test should be applied. Both agree on what the first step is: open the door of the flat, and see whether inside it contains all that is necessary for living accommodation.

They are, however, at odds as to what the second step, if any, should be. Mr Forsdick, for the listing officer, submits that if, having opened the door, the onlooker can see that the unit contains all that is necessary for living accommodation, then he need look no further; but, if it does not, or if the matter is doubtful, then he can look at the communal facilites available within the remainder of the building to determine the statutory question.

Mr Boyle, for the RNIB, submits that if, having opened the flat and seen that it does contain all that is necessary for living accommodation, then the onlooker should go on to look at the remainder of the building, and to its facilites, to see if it can fairly be considered that the part of the building under consideration was constructed for use as separate living accommodation.

I do not, in fact, accept either proposition. In my judgment, the Article 2 definition requires no two-step test to be applied. In a case such as here when "part of a building" is being considered, the question is whether that part has been constructed or adapted for use as separate living accommodation.

That question should be answered in the light of all the objective circumstances, including the use or uses for which the remainder of the building was constructed. In the case of a purpose built or adapted care home for the blind, or the partially blind, the use for which both the relevant part of the building, and the building as a whole, were constructed, was and is to accommodate and care for the blind and the partially blind - hence the provision of textured surfaces, handrails, speaking lifts and so forth.

If, in the light of those objective circumstances, the relevant part of the building was constructed for use as separate living accommodation for the blind and partially sighted, it is a self-contained unit, and so must be separately assessed for council tax purposes, or, in the jargon, disaggregated. If not, then not.

I am satisfied that the Valuation Tribunal's findings, which I have recited, are flawed and internally inconsistent and require to be revisited. The first finding is virtually a finding that the four units are constructed for use as separate living accommodation.

The Valuation Tribunal expressly stated:

That seems to me to be a finding that the four units under consideration were constructed for use as separate living accommodation, and that it is a matter of choice for the residents of the units thus constructed whether or not they are used as separate living accommodation.

If that is right then the tribunal has answered the statutory question in favour of the appellant. The second reason given by the tribunal was:

This looks like a finding that the RNIB had the subjective intent not to create units for independent living, and appears to stem from the tribunal's view about the use in fact made of the building.

For reasons already given, the finding would be doubly erroneous.

In any event, the question is not whether the units are intended, nor even can be used for, entirely separate living, but whether they are constructed for use as separate living accommodation. It is not required that the units should be constructed, let alone used, for all facets of independent living.

The third reason - that the tribunal was unable to discern any cogent distinction between the units which the listing officer had accepted should not be disaggregated, and those which he contended should be - is not one which the Valuation Tribunal should have taken into account at all. It had to make its own judgment about whether or not the four units under consideration were constructed for use for separate living accommodation, not to compare its judgment with that of the listing officer made about the units not in issue.

Because of the Valuation Tribunal's first finding it is tempting for me to substitute an order quashing its decision which would have the effect of restoring the listing officer's decision, but it is possible, in the light of the approach which I have indicated should have been adopted, and in particular the reference to construction for use by blind and partially sighted persons, that there may be factors which might reasonably lead the Valuation Tribunal to allow the RNIB's appeal.

For that reason, I intend to quash the decision, but to remit the case for further consideration before the Valuation Tribunal. I will hear submissions as to whether that should be to the same tribunal or a different one.

MR FORSDICK: My Lord, I understand that there are some difficulties in arrangements for VT's, and whilst we do not object to the same members hearing it again, if it is necessary to do so, perhaps the preferable thing would be to ask for a newly constituted VT to hear it, if it is reasonably possible to make such necessary arrangements.

MR BOYLE: My Lord, I support that, with respect. I think we would prefer it on the basis that, as your Lordship has indicated, neither of the two sets of submissions which we were putting towards the last lot are entirely the right approach. So a new fresh tribunal coming to the facts would be a better way of dealing with it.

MR JUSTICE MITTING: Yes, ordinarily I would have thought it better and more economical simply to remit the matter to the original tribunal who have, after all, been to see the premises, but given what you say about the difficulty of reconvening the same tribunal, and the possibility that the original tribunal may have been led into error by submissions that are not now going to be advanced before them, I agree that it should be remitted to a fresh tribunal for further consideration.

MR FORSDICK: My Lord, that leaves the question of costs. There is an application for costs on behalf of the Inland Revenue. A schedule of costs for summary assessment has been submitted, I hope, to the court.

MR JUSTICE MITTING: I have not seen that.

MR FORSDICK: There was an error on the schedule which has been corrected because it omitted a conference and a skeleton argument, but subject to that I do not understand the costs schedule to be disputed. I do not know whether the principle of costs is accepted and perhaps I can come back if there is any argument to that.

MR JUSTICE MITTING: Mr Boyle, first of all, figures?

MR BOYLE: We have no difficulty with figures.

MR JUSTICE MITTING: No. Next; principles?

MR BOYLE: My Lord, on matter of principle, save this (inaudible) no dispute on principle. All we ask for is a reflection of my Lord's indication that neither side got it right on the matter of high principle. In relation to the details, my Lord will recall that the second of the three grounds, matter of intention, was not a matter pleaded, or they did not appear in the skeleton, was properly addressed.

MR FORSDICK: My Lord, simply to quash the decision as, in my respectful submission, the court was bound to, because it clearly could not stack up in itself. The only issue before the court when my Lord has in some way found against the position of the Revenue, is in relation to (inaudible) would be remitted back, and in those circumstances, in my respectful submission, a full order for costs is appropriate.

MR JUSTICE MITTING: The difficulty is that the respondent to a statutory appeal is put in the position of being, in effect, forced to defend reasons that he did not wholly advocate below.

MR FORSDICK: Yes.

MR JUSTICE MITTING: It might therefore seem unfair that the respondent should be penalised because of an error not brought about by his own submissions by the Valuation Tribunal. In a case where I have not acceded to yours hook line and sinker I think that it is strongly arguable that an order for costs is unjust.

MR FORSDICK: My Lord, first of all; that point is not being taken by my learned friend on behalf of the RNIB. Secondly; it is not consistent with authority which shows that if a respondent to a statutory appeal appears before the court they are naturally at risk of an order for costs. If they did not want to defend a decision they do not have to. If they do, and they are unsuccessful, they stand a risk of the costs order against them.

MR JUSTICE MITTING: Two things; first of all I think your instructing solicitor is trying to pass you a note.

MR FORSDICK: Yes.

MR JUSTICE MITTING: Secondly; an institution like the RNIB which doubtless has other care homes to which the principles that have been debated may apply, cannot, unlike a single individual, simply leave a contentious decision open to attack from one side without any comeback.

MR FORSDICK: That may well be correct, that would be the case with all major cases that go to statutory appeals for the Inland Revenue, for all the departments of state, they customarily get costs awards if they are successful, either in their appeal or in defending an appeal by somebody else in that sort of context. That is the first point.

The second point is; that, of course, a party to an appeal could simply write in saying: we do not object to the decision being quashed and remitted, but we do not want the point of principle to be debated at this stage, and we will only have the point of principle debated if it becomes necessary to do so on the findings of fact of the new tribunal directing itself in accordance with law.

So the dilemma which has been created is, in my respectful submission, a natural consequence of the statutory appeal mechanism where a party has decided to come along and defend the decision, and has been unsuccessful in defending the decision.

My Lord, in my respectful submission, it would be wrong for the court to proceed on the basis that costs awarded in these sort of circumstances would be unjust as a matter of first principles, and to do so would significantly undermine the ability -- or maybe ability is putting it too high -- the circumstances in which the court will be faced with these sorts of applications. It was entirely right for the Inland Revenue to come to court to take this and to seek to quash this decision, because it was manifestly ill-founded and unlawful. Is the Inland Revenue, in those circumstances, I ask rhetorically, to be made to pick up the costs of the Valuation Tribunal's mistake?

I should point out the mistake; it was not at all self-created, paragraph 2 was a self-created mistake, but paragraph 3, a concession, was effectively the heart of my learned friend's skeleton argument, it was that they had conceded this in relation to -- the skeleton argument before the Valuation Tribunal, they have conceded the small flat, that is why they have not conceded the bigger flats.

So I do not accept that somehow this is a mistake which has been created in the minds of the (inaudible) tribunal, it has been created by the way in which the case evolved, which is due partly to the way in which the respondent has been.

MR JUSTICE MITTING: Unusually I am going to give you a second bite at the cherry, Mr Boyle, for this reason: having listened to Mr Forsdick, and having put to him, as forcefully as I can, a proposition that I anticipate you would have wished to advance, he has replied with some conviction.

It is a curate's egg, is it not, this decision? It is in part what you submitted, in part a decision of the tribunal of its own.

MR BOYLE: My Lord, yes. The principle is, as I understand it, more or less my learned friend identifying that where a defendant does oppose an appeal of this nature, then he is exposed to costs, and it is for that reason that I submitted that there should be a reflection, based on the fact that the way in which the appellant has continued his appeal has not found favour with my Lord. It is as simple as that.

MR JUSTICE MITTING: You confine yourself narrowly to that ground?

MR BOYLE: Yes, that is right, my Lord. We, as became apparent in argument, have to deal with, unfortunately, the way the tribunal has expressed itself. Unfortunately that is the position, and the defendant finds itself in this sort of case. The resisting of an order for costs is the resisting of the whole of the award given my Lord's judgment.

MR JUSTICE MITTING: Right, thank you. Mr Forsdick, does your bill include VAT or not, and if not, does it afford to be added to it?

MR FORSDICK: You might not be surprised to note that the Inland Revenue is not registrable for VAT.

MR JUSTICE MITTING: You are instructed directly by the Inland Revenue?

MR FORSDICK: Solicitor to the Inland Revenue.

MR JUSTICE MITTING: Yes.

MR FORSDICK: My Lord, could I just raise just one further --

MR JUSTICE MITTING: Certainly.

MR FORSDICK: In case my Lord is going to give a judgment on the appropriateness of costs generally --

MR JUSTICE MITTING: I am certainly not intending to deliver a reasoned judgment, but an outcome with a statement, one sentence as to why I have reached it. I intend to depart from the usual principle that an unsuccessful respondent pays the costs in small part, because the appellant has failed to persuade me of the merit of the whole of his submission. But he has substantially succeeded, and in consequence I order that the respondents pay £4,000 towards the cost of the appellant.

MR BOYLE: My Lord, I have a further application, if I may trouble you.

My Lord, it is to ask for permission to go to the Court of Appeal. As my Lord is aware this is a proposition that is currently without any authorities, save now from my Lord, because the matter has not ever needed to be crystallised in the way that it was in this case.

My Lord has neither accepted the submissions of the Revenue or the RNIB, but rather come to a third view, and in those circumstances, I respectfully submit, as follows: (a) there is at least a reasonable prospect of success in the Court of Appeal, given the matter is without authority, and (b) it is, of course, a matter of very significant importance, notwithstanding the announcement of an intention of changing the legislation at some stage. As indicated, it is not all embracing and it is not certain and indeed it will not be retrospective.

MR JUSTICE MITTING: The difficulty with that is that, as you acknowledge, the point is moot, is it not, in this case, because this decision has to be quashed?

MR BOYLE: Yes. The point of principle, my Lord, which, if necessary, we would wish to take up.

MR JUSTICE MITTING: I understand there is an important point of principle here, but it does not actually arise for decision, because I have quashed the Valuation Tribunal's decision.

MR BOYLE: The difficulty that the RNIB finds itself in, is that the decision now having to go back to a new Valuation Tribunal, it will have to decide that on some approach as to law. It is not, according to my Lord, an approach as the RNIB suggested previously, nor the Revenue have been suggesting, but rather as my Lord has been suggesting. And it is that matter for which we would seek clarification on, by the Court of Appeal, before it goes back to the tribunal to make its decision on fact.

MR FORSDICK: My Lord, it is not customary for the Treasury Solicitor or the Inland Revenue Solicitor to make submissions on leave to appeal. I should just say that I believe this will be a second appeal, because it is an appeal to the High Court from the Valuation Tribunal, in which case this court does not have jurisdiction to grant permission in any event. There was, originally, an appeal to the Valuation Tribunal against the listing officer, and it comes to this court by way of appeal from that decision, and as I understand it, part 52(13) means that this is then a second appeal.

MR JUSTICE MITTING: Yes, Mr Boyle, I think that is right.

MR FORSDICK: There is no deciding case on whether a Valuation Tribunal decision is a decision on an appeal, but the general proposition holds good, I would submit.

MR BOYLE: Well, my Lord, I make the application for fear that it is not right, and if my Lord is minded to refuse it then plainly --

MR JUSTICE MITTING: Wait a moment, no, there is some learning on this. Appeals from statutory tribunals, for example, the Employment Appeal Tribunal, to the Court of Appeal, are first time appeals, and so permission can be granted by the Employment Appeal Tribunal. This is an appeal from a statutory tribunal to the High Court and then it is up, and that suggests that the second appeal is in fact a second appeal for the purposes of permission.

MR FORSDICK: That is my submission, my Lord.

MR JUSTICE MITTING: Yes. Mr Boyle, I think that is right.

MR BOYLE: I suspect it is my Lord.

MR JUSTICE MITTING: So not only do I not grant you permission, I am quite unable to make any order either way.

MR BOYLE: I am grateful my Lord.

MR JUSTICE MITTING: Thank you both for your submissions which were made succinctly and cogently.