Williams, R (on the application of) v Horsham District Council

1. MR JUSTICE MCCOMBE: This is an appeal by Mr Martin Williams from the decision of the West Sussex Valuation Tribunal of 11 December 2002 in relation to a council tax in respect of the property known as the Pump Cottage Church Terrace Henfield. Mr Williams had appealed to the Tribunal against the action of Horsham District Council in refusing a 50 per cent discount from the council tax liability charge to Mr Williams in respect of Pump Cottage.

2. To summarize briefly the facts, which are stated in more detail in the Tribunal's decision, one can say this: in the period between January 1993, and January 1997, Mr Williams was a housemaster at Hurstpierpoint College in Sussex and as such had use of a school residence property called The Oaks. He argued that this was his home. There was no one resident at Pump Cottage at this period and he was, therefore, entitled to a discount as claimed.

3. The relevant legislation is to be found in the Local Government Finance Act 1992. In particular, at section 6 which provides as follows:

"(1) 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, paragraph (b) next, and so on.

(2) A person falls within this subsection in relation to any chargeable dwelling and any day if, on that day -

(a) he is a resident of the dwelling and has a freehold interest in the whole or any part of it..."

4. I should say before moving to subsection (5) that no other parts of subsection (2) are said to be relevant here.

5. Subsection 1(5) provides:

"In this part, unless the context otherwise requires"

-- and I omit certain definitions which are not relevant --

"resident" in relation to any dwelling means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling."

6. The facts, as found by the Tribunal -- and I think these were findings of fact although sometimes put as assertions by Mr Williams -- were as follows:

"Mr Williams said that his wife and he had lived in the appeal dwelling since 1975, but that they had, from January 1993 to July 1997, resided in accommodation which was as The Oaks and which was provided by Hurstpierpoint College. He was employed there as a housemaster from January 1993 to August 1996 and occupied the school house as a pre-requisite of the post. The post college paid the council tax in full and treated the accommodation as part of his taxable remuneration. From September 1996 to July 1997 Mr and Mrs Williams continued to live in the same property, even though he was no longer a housemaster; but a charge was made for the accommodation including council tax. Whilst at Hurstpierpoint, the home in Henfield was left unoccupied, although he did return periodically to maintain the property and mow the lawn. He did not however stay there overnight.

On their return to Henfield, Mr Williams wrote to Horsham District Council requesting a 50% backdated rebate, during their residence in Hurstpierpoint since the appeal dwelling had not been occupied during their residence in Hurstpierpoint and the full council tax had been paid in respect of the college accommodation. In support of this contention, he quoted a memorandum dated 10 November, from the then bursar of the college which specified that a 50% council tax discount might be granted on houses owned elsewhere by members of the staff. He also referred to the notes accompanying Horsham's council tax demand which indicated that 'properties at which no one lives will receive a 50% discount.'"

7. A little later on, after those primary findings of fact, the Tribunal stated as follows on the second page of their decision:

"So far as Mr and Mrs Williams were concerned, they had always intended to return to the appeal dwelling, they enjoyed security of tenure there and their absence for a period of four and a half years was occasioned by Mr Williams' work commitments. In addition, some personal belongings were left at The Pump Cottage to enable them to return when they wished, they remained registered with the same doctor and dentist and they were included in the electoral rolls of both councils."

8. The Tribunal in its careful decision referred to Ward v Kingston-Upon-Hull City Council [1993] RVR page 71 Doncaster Borough Council v Stark [1998] RVR 80 at 82 and Bradford Metropolitan City Council v Anderton 89 LGR 681 at page 45.

9. Having considered those decisions, the Tribunal found with regard to the authorities:

"There were, however, two reasons why the current case could be distinguished from the established law on this subject. Firstly, Mr Williams' wife accompanied him while he was residing in the college property, unlike the spouses of the taxpayers in the cases before the courts. Secondly, Mr Williams stated that at no time had he or his wife stayed overnight at the appeal dwelling.

In the opinion of the Tribunal neither of these factors could cause the balance of the scales to be tilted sufficiently in favour of the taxpayers in the current case, since the most important and persuasive criteria were the security of tenure in The Pump Cottage as compared with the college accommodation and the fact that there was an undoubted intention to return there when Mr Williams' employment came to an end. The Tribunal was not convinced that these additional circumstances would be likely to upset the now well-established corpus of the law.

Accordingly, it came to the firm conclusion that the sole or main residence of Mr and Mr Williams during the period from January 1993 to July 1997 was the appeal dwelling. The appeal, therefore, must be dismissed."

10. It is common ground in this court that in considering the matter the court must apply the test set out in Edwards v Bairstow [1956] AC 14. It is often thought that the best exposition is the relevant test is that set out by Lord Radcliffe at page 36 of the report of that case which was also cited by Potts J in Stark at page 81. Quoting from Lord Radcliffe, his Lordship said:

"If the case contains anything ex facie which is bad law and which bears upon the determination it is in obviously erroneous in point of law... any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances too the court must intervene."

11. The three cases that were cited to the Tribunal all involved people who were obliged in one way or another for the purposes of work to reside at properties either provided by their employers or provided close to their place of employment. Taking them in order of time, Anderton concerned a seaman who was away at sea for most of his time and claimed that his ship was his "sole or main residence."

12. Ward involved an employee of British Aerospace PLC engaged in work at that company's base at Dhahran in Saudi Arabia. Stark was about a serving member of the RAF who was stationed at RAF Coningsby. Mr Ward and Mr Stark contended that their homes to which they returned from time to time were not their sole or main residences, but the premises occupied for purposes of work were. Mr Anderton contended that the ship on which he sailed the high seas was the sole or main residence for these purposes.

13. In Anderton , Hutchison J (as he then was) found that within the meaning of the present statute, a ship plying the high seas could not be a person's "residence." He went on to say at page 59 of the report:

"...

(2) even if such a ship could constitute a residence, the respondent's sole or main residence was the house, because that was where his home was, where he had his settled and usual abode, which he left only when the exigencies of his occupation compelled him to go to the sea, for temporary or occasional absences of long or short duration;

(3) the Valuation and Community Charge Tribunal, erred in confirming its attention exclusively, or almost exclusively, to the question of time because there were other factors which the tribunal could have taken into account, including, I consider that (a) the fact that the respondent regarded the house as his home, that it was there his wife (and presumably any children they might have) lived, that he spent his time there when not on the ship, and that he had an interest in and security of tenure at the house,

(b) that he lived on the ship only because of and in connection with his work, and that he had no security of tenure (beyond that which his contract of employment gave him) on any accommodation which he occupied on the ship. The paucity of evidence did not mean that there were not other factors which the tribunal, drawing reasonable and proper inferences from what was before it, could take into account. I instance the following matters:

(a) the fact that Mr Anderton regarded the house as his home; that it was here his wife (and presumably any children they might have) lived; that he spent his time there when not on the ship; and that he has an interest in and security of tenure at the house; (b) that he lived on the ship only because of and in connection with his work; and that he has no security of tenure (beyond that which his contract of employment gives him) on any accommodation which he occupies on the ship."

14. The reference to the findings of the Tribunal concerned, in particular the final paragraph of the finding where the Tribunal said, after stating that they had given very careful consideration to all the evidence submitted, (as the Tribunal did in this case) that they considered the only firm evidence present to be that related to Mr Anderton's service record. A little later on they said:

"In reaching a decision the Tribunal decided that most weight must be attached to the service record of Mr Anderton, which quite clearly illustrated that for 75% of his time he was away from 2 Vale Grove aboard the Atlantic Conveyor. Having regard to this evidence the tribunal were firmly of the opinion that his main residence was the Atlantic Conveyor and not 2 Vale Grove, Silsden."

15. In Ward which was decided by Auld J (as he then was), having drawn contrast with Anderton his Lordship said this:

"Here the case concerns two houses on dry land, but, apart from that distinction, there are a number of common factors. The most important of those are: that Mr Ward has security of tenure in his home in Hull, which he clearly does not have in his tied accommodation in Saudi Arabia; that the only home that he owns is the one in Hull; that he lives in the accommodation in Saudi Arabia, when he does, only because he works there; and that as in the Bradford Metropolitan City Council case, he spends longer away from his matrimonial home than he does in it."

16. The learned judge said a little later:

In my judgment, the tribunal's reliance on the factor of security of tenure at the second hearing of the appeal could not possibly be said to be Wednesbury unreasonable in the light of the comparable reasoning of Hutchison J in Bradford Metropolitan City Council. Nor, in my judgment, on the facts of this case, could it possibly be said to have been Wednesbury unreasonable to have relied upon it in reaching the decision that it did."

17. I should perhaps make it clear that there had been an earlier hearing at which the Tribunal had, in fact, taken a different decision but had considered other material evidence.

18. In Stark , the final of the three in the series of cases referred to by the Tribunal, Potts J referred to the approach in Edwards v Bairstow , to which I have also referred. In the important part of his decision, he said this:

"In my judgment, the approach and principles identified by Hutchison J in the Bradford case and followed in the other cases cited govern the approach of this court in the present appeal. Implicit in this is that accommodation obligatorily occupied by the taxpayer for the purposes of work, and occupation of which prevents him from returning to his usual abode, is not necessarily to be considered as his 'sole or main residence.' Had the tribunal adopted this approach, then, in my judgment, it could not properly have attached weight to the fact that the appellant was forbidden by his commanding officer from commuting between Yorkshire and Lincolnshire and therefore had no choice as to where he lived; nor to the fact that Corporal Stark's car registration documents and driving licence showed his RAF address."

19. Omitting certain paragraphs, the learned judge concluded:

"On analysis it is clear that the Tribunal had no regard to the following factors which were identified by Hutchison J in the Bradford case as relevant to the issue to be decided here:

(1) Corporal Stark's security of tenure at the Mexborough house.

(2) the fact that he spent his time there when off duty;

(3) the fact that if he was not employed by the Royal Air Force he would return to that house; and.

(4 the fact that he house was his marital home.

All these factors, in my judgment, were factors to be taken into account by the tribunal. Had the tribunal taken them into account I am satisfied that, in the light of its other findings of fact, it could not properly have allowed Corporal Stark's appeal but would have been bound to conclude that his sole or main residence was at Mexborough.

Therefore, the council's appeal must be allowed."

20. I have been referred to three other authorities. First, a decision of Mr Michael Supperstone QC, sitting as a Deputy Judge of this court, in Bennett v Copeland Borough Council , [2003] EWHC 990 Admin, where the taxpayer was contending that he was not liable to council tax, first of all because the relevant property was tenanted (there was a dispute of fact about that.) I think I can best summarize the taxpayer's case there by a quotation from paragraph 3 of the learned Deputy Judge's judgment where he said:

"In summary the case for the Appellant is that he bought the property for investment purposes. He did not live there. The property was rented out to tenants. He lived in another property at 24 Moor Lane, Bedford and that was his sole or main residence. The fact that he is not liable to pay council tax on that other property is irrelevant. The property is not his sole or main residence. he is not responsible for paying the council tax on the property. The responsibility is that of the tenants."

21. In contrast to those submissions, the Tribunal found the following:

"Mr Bennett resided in various places depending on his work commitments. These varied from staying with friends and relatives to B&B's and compounds on the work site."

22. The Tribunal concluded in that case that the evidence showed that Mr Bennett lived a fairly nomadic life, staying with friends or relatives on work sites and B&B's often only for a few days at a time.

23. In the light of those findings, the Tribunal decided that his main residence was at the subject property. The finding of the Deputy Judge on the appeal can be encapsulated in a citation from paragraph 13 where he said:

"Miss Patry, on behalf of the Appellant, and Mr Bennett himself submitted that the principal distinguishing feature between the authorities referred to was that he had never lived at the property at all, whereas in all other cases the person had lived there. It is correct that the Tribunal made no such finding of fact and accordingly there is this distinguishing feature on the facts between the present case and the authorities referred to. However in my judgment the fact that the Appellant did not live at the property is just one factor that must be taken into account. Other factors, which result in findings of facts made by the Tribunal, which are of particular relevance in this connection, are that the Appellant had a legal freehold in the property; there is no other property in which he had a financial interest; it is the only property where he has a right to return; he visited the property (albeit occasionally) probably no more than once per month, to collect post and check the condition of the property etc; it is the property to which he could return were it not for his work commitments and it was the property to which he intended to retire to. In my judgment all these factors are relevant and are entitled to consideration together with the fact that the Appellant did not live at the property when deciding whether the property was his sole or main residents."

24. Mr Easton, for the respondent in this case, submits that virtually all those features are present in the case before me. One might perhaps add, however, that was a case where, as the Tribunal found, the appellant was in effect a nomad and did not have any realistic case to put forward that his main or sole residence was somewhere else, other than the subject property.

25. I have also been referred to two further decisions: Codner v Wiltshire Valuation and Community Charge Tribunal [1994] RVR 169 and Cox v London (South West) Valuation and Community Charge Tribunal [1994] RVR 171.

26. I do not think I need to cite at all from those two cases which do not extend the principles any further than those which I have already cited.

27. I should, perhaps, on reflection refer to one passage which Mr Williams in this case submitted encapsulated his submission. The case involved a member of the Bar who had his family home, if I may call it that, in the west country and lived during the week in London. The member of the Bar's submission was that as he lived most of this time in London. Wherever he might wish to live for his own purposes, the London flat should be regarded as his main residence. Laws J said:

"The chargepayer's primary case was that though home is where the heart is, as he put it, and his was very much with his wife and children, nevertheless considerations of that kind ought not to determine the statutory question what was his main residence. In my judgment considerations of that kind are indeed material to the statutory question."

28. It is quite clear that Laws J was rejecting a contention that "home is where the heart is" and that it was irrelevant. In the view of Laws J it was relevant.

29. As the Tribunal correctly identified, the main distinguishing features of this case from those of the three cases that it considered were: first, Mr Williams' wife accompanied him while he was residing in the college property unlike the spouses of the taxpayer in the three cases before the courts in the past; and secondly, Mr Williams stated that at no time had he or his wife stayed overnight at the appeal dwelling.

30. It is also right that earlier in the decision on the second page, in dealing with Ward , the Tribunal set out several factors that had to be taken into account, including: (a) an intention to return, (b) the period of and reason for the absence, (c) the legal interest in the dwelling and (d), the security of tenure (e) the whereabouts of personal belongings, (f) the place where the spouse and children, if any, resided and (g) the registration of the taxpayer for dental, medical and electrical purposes. Clearly they had those matters firmly in mind and identified the distinguishing features.

31. However, to my mind while the Tribunal correctly identified those factors in the important part of their decision it seems to have regarded two of those relevant factors, namely security of tenour and an intention to return to Pump Cottage in due course as the overriding criteria above the others. I have already cited the relevant passage. They put it that the most important and persuasive criteria were the security of tenure in Pump Cottage as compared with college accommodation and the fact that there was undoubted intention to return when Mr Williams' employment came to an end.

32. The next sentence indicates to me that they seem to regard those as being most important and persuasive having regard to the well-established corpus of law, as they put it. Therefore, it seems to me that they elevated those two factors or seem to have elevated those two factors over and above that to which they truly deserve into overriding principles of law.

33. Mr Easton, for the respondent, submitted that provided the correct factors were taken into account, and provided the weight given to each of those factors is not "Wednesbury" unreasonable, the court should not interfere. I would agree.

34. However, that does not seem to me to get over the clear impression created that, notwithstanding the important distinctions in this case from those in the previously decided cases, these two factors were trump cards. Notwithstanding that undoubtedly Mr Williams' home in his own mind was The Oaks, and indeed his wife lived there and indeed that he had not spent any time at Pump Cottage at all, the other two factors were somehow more important in law.

35. This seems me to be more like the case considered by Hutchison J where the Tribunal had regard to all the factors and they said so expressly. However, what they had done in that case was to concentrate their attention almost exclusively on the question of time which the relevant taxpayer had spent at the respective properties. In this case the Tribunal did not have exclusive regard to the two factors which they identified but to my mind they elevated them in law over and above the weight that they strictly deserved.

36. I have considered whether, having reached that conclusion, it was open to me to vary the decision in the light of the finding as I do as the incorrect approach of the Tribunal. It seems to me, however, that that would be wrong. Whatever my own impression may be of the results that would flow from all the factors taken together, I am not the fact finding Tribunal and whatever impression I may have gained as to what the result in the matter might have been, the correct course would be to remit the matter to the Tribunal and direct that all the factors in the case that are identified in their previous decision, including the distinguishing factor require to be given proper weight.

37. Having considered all those matters, it is for the Tribunal to reach their decision as to which was the main or sole residence on the facts of this case.

38. Accordingly, I would make that order, subject to argument, as to what its proper form should be. To that extent, this appeal is allowed.

39. Mr Williams, do you have any observations as to the form of order? I will ask Mr Easton if there is something else that needs to be said.

40. MR WILLIAMS: Thank you. My Lord, as I said at the beginning, I am not a lawyer; I am not a solicitor; I am not a barrister. Therefore, I am not quite sure what the situation is. As I understand it, you are asking that the West Sussex Valuation Tribunal revise, or at least re-discuss their Tribunal decision.

41. MR JUSTICE MCCOMBE: Yes.

42. MR WILLIAMS: I would be happy with that. I mentioned yesterday about the question of costs.

43. MR JUSTICE MCCOMBE: Yes.

44. MR WILLIAMS: Are you able to tell me anything about that?

45. MR JUSTICE MCCOMBE: I think you are entitled, if you wish to ask for it, subject to argument, to some recompense as a litigant in person are entitled to have for your expenses incurred. I do not have the references in front of me. They can be found if that is necessary.

46. MR WILLIAMS: Who I ask for that, your Lordship?

47. MR JUSTICE MCCOMBE: If you ask me for the relevant order, I know there is a power to make that such an order, I will hear what Mr Easton says about it, and then leave it to the Court Office to make the necessary assessment in your favour, if Mr Easton does not persuade me otherwise.

48. MR WILLIAMS: Can we just go over that, your Lordship? Are you saying, therefore, that I am not liable for costs in this case?

49. MR JUSTICE MCCOMBE: What I am saying is that you would be entitled to have some recompense for your costs of this appeal, because if you lost -- it may be that the council would asked for costs against you -- I will have to find the relevant reference. It is a Litigant in person's Expenses Act, or something of that nature. In so far as you have incurred expenditure, then I think you are entitled to some recompense for that. I would make that direction subejct to what Mr Easton may say.

50. Mr Easton?

51. MR EASTON: On that last point, I do not think I can reasonably argue against it.

52. MR JUSTICE MCCOMBE: I think I will have to leave it to the Court Office to find the necessary authority. I am not going to ask you to do it. It is somewhere in Part 48. It is the Litigant in Person's Costs and Expenses Act 1975. Are you going to argue I should not make such an order?

53. MR EASTON: No.

54. MR JUSTICE MCCOMBE: I make the relevant order under that Act, subject to quantification, Mr Williams can have his expenses as he is entitled to under that statute.

55. MR EASTON: There are two further matters, my Lord. Firstly, your Lordship was going to direct that all the factors referred to by the Tribunal are to be taken into account and given equal weight.

56. MR JUSTICE MCCOMBE: Yes.

57. MR EASTON: I think in your judgment you agreed with me that provided that all the factors were taken into account --

58. MR JUSTICE MCCOMBE: Proper weight. I will correct that on the transcript when it comes back. I think the word 'proper' is more correct than 'equal'.

59. MR EASTON: I am quite content with that.

60. MR JUSTICE MCCOMBE: I intended to include all those matters which they cited on page two of their decision and the distinguishing factors that are mentioned on page three.

61. MR EASTON: The second matter is I ask for permission to appeal.

62. MR JUSTICE MCCOMBE: Yes. Can I give that on a second appeal?

63. MR EASTON: It is a statutory appeal.

64. MR JUSTICE MCCOMBE: Somebody submitted to me the other day, without argument, that where there was a statutory appeal, the appeal to the Court of Appeal would be a second appeal, but nobody argued to the contrary. It may be that is wrong. In so far as I have power to give you leave, subject to what Mr Williams says, I would give you leave. Shall I put it that way?

65. MR EASTON: Yes.

66. MR JUSTICE MCCOMBE: Then the Court of Appeal will know one way or the other what I felt about that.

67. Mr Williams, you have heard what has been said. They are considering whether they want to appeal, and are asking me for my permission. The normal rule is if I have power to give permission if I decide any such appeal would have a realistic or reasonable prospects of success. Do you have anything to say about that?

68. MR WILLIAMS: I do not think an appeal would have a reasonable prospect of success, your Lordship.

69. MR JUSTICE MCCOMBE: Mr Easton, I give you leave, if I have power to do so.

70. MR EASTON: I am grateful.

71. For the benefit of Mr Williams, as this is not crystallised yet, I just should say for the benefit that the ground essentially would be that your Lordship placed reliance on the similarities between this case and Anderton , namely the elevation of certain factors to a certain weight. In my submission, the two cases are materially different.

72. So far as the second point is concerned, we would say that really relates to Bennett . In my submission, there was no material difference between Bennett and the Williams case for those two primary reasons.

73. MR JUSTICE MCCOMBE: I understand why you say that. I think your first point, if the Court of Appeal is interested, is, in my view, more arguable than your second.

74. MR EASTON: You may well be right, my Lord.

75. MR JUSTICE MCCOMBE: Does anything else arise?

76. MR EASTON: No.

77. MR JUSTICE MCCOMBE: Thank you both for your submissions. Thank you Mr Williams for the clear and courteous way in which you have presented your case.