Listing Officer v Bryant & Ors

1. MR JUSTICE SULLIVAN: This is a statutory appeal brought under regulation 32 of the Council Tax (Alteration of Lists and Appeals) Regulations 1993 ("the 1993 Regulations") against a decision by the West Wales Valuation Tribunal ("the Tribunal"), relating to 11 bedsits at Ty Gnoll, Dyfed Road, Neath. The premises are occupied by elderly persons. The Tribunal decided that 11 of the bedsits within the property comprised a single property and that the disaggregation provisions in the Council Tax (Chargeable Dwellings) Order 1992 ("the 1992 Order") did not apply. The Order deals with the approach that is to be followed when within one building there are a number of residential units. Examples might be a block of student accommodation or a block of flats. How does one treat such a property for Council Tax purposes? The answer is to be found in article 3 of the 1992 Order, which provides that:

"Where a single property contains more than one self-contained unit, for the purposes of part 1 of [the Local Government Finance Act 1992] the property shall be treated as comprising as many dwellings as there are such units included in it and each such unit shall be treated as a dwelling."

A self-contained unit is defined in article 2 as:

"a building or part of a building which has been constructed or adapted for use as separate living accommodation."

The effect of the Order is that where, within a single building, there are a number of self-contained units, each of those self-contained units is separately assessed for council tax purposes. The valuation officer had so assessed the 11 units, but Age Concern on behalf of the residents argued that they were not self-contained.

2. The property is a mixed development. It contains 26 large and small bedsit flats, three one-bedroomed flats and a warden's flat. It is owned by the local authority and let to council tenants, all of whom are elderly. It was accepted that so far as the larger flats were concerned, they were self-contained. But an issue arose as to the 11 bedsits. I have been provided with a plan of the small units that was before the Valuation Tribunal. Each unit has its own front door through which one enters a hall. To one side there is a store cupboard and to the other side a linen cupboard, and a lavatory and a washhand basin in a separate cloakroom. Off the hall there is a bed sitting area, and on the other side, in a separate room, there is a fully equipped kitchen. It will be noted that, while there is a wash basin and WC, there is neither a shower nor a bath. Bathing facilities are available within the property but they are shared by a number of the bedsits.

3. The initial decision of the Valuation Tribunal to the effect that the bedsits were not self-contained was given as long ago as 17th October 2001. But the direction given by the Tribunal as to what should be entered into the valuation list was not satisfactory. So the Tribunal was asked to review its decision, and in due course issued an amended notice. A further hearing was held to determine the correct banding. It was conceded at that stage that the larger flats did not fall within the scope of the earlier decision, and so separate decision notices were given in respect of those flats. So far as the 11 bedsits were concerned, the Tribunal confirmed its earlier decision that they should not be separately shown in the valuation list, and determined that valuation band F was the correct band for the cumulative entry to be made in the list.

4. The final notice of decision and statement of reasons was issued on 11th July 2002. In its decision the Tribunal reiterated the reasoning in its earlier decision. So it is necessary to go back to that to understand the basis on which the Tribunal concluded that these 11 bedsits were not self-contained. The Tribunal's reasons were as follows:

"the individual bedsit units under appeal ... were not self-contained in nature because the handwash basin facility within each toilet was basic and too insufficient to constitute adequate washing requirements. This was especially true when considering the elderly nature of the residents who might require additional assistance in such circumstances.

Further, the Tribunal took into account other factors, such as there being one TV licence for the premises, shared bathrooms, lounge and laundry facilities, which pointed to a high degree of communality and dependency. Additionally, there was only one access point, which in the Tribunal's opinion would pose a difficulty if the units were to be sold separately on the open market.

Taking the above points into account, the Tribunal concluded that the units failed to qualify the definition of 'self contained unit' under Article 2 of the Council Tax (Chargeable Dwellings) Order 1992 and could not therefore be considered to be dwellings for the purposes of Article 3 of the same Order."

5. Whether or not a particular unit of accommodation is or is not self-contained is a question of fact for the Tribunal. Normally the court would not interfere with the Tribunal's judgment provided -- and it is an important proviso -- it is clear from the Tribunal's reasoning that it has correctly directed itself as a matter of law.

6. On behalf of the valuation officer, Mr Forsdick submits that four errors are evident from the Tribunal's reasoning. Firstly, the Tribunal relied in particular upon the fact that the handwash basin facility within each toilet was basic and insufficient to constitute adequate washing arrangements. It noted that there were shared bathing facilities available. As to this, the mere fact that there is no bath or shower in a property does not mean that it cannot be a self-contained unit; that is to say, a part of a building which has been constructed or adapted for use as separate living accommodation.

7. In R v London South East Valuation Tribunal and Neale, ex parte Moore [2001] RVR 92, the Court of Appeal had to consider an application for permission to appeal against an order of Lightman J refusing the applicant permission to apply for judicial review of a decision of the London South East Valuation Tribunal confirming a listing officer's revised entry of the applicant's living accommodation for council tax purposes as a separate dwelling in band A. The applicant argued that his accommodation, which comprised a bedsitting room and kitchen, together with the shared use of a bathroom and toilet on the first floor, could not be regarded as a separate dwelling because he had to resort to common bathroom and toilet facilities. In his case he had to share those facilities with up to as many as 13 other occupiers. The court was concerned with whether or not the bedsitting accommodation could properly be described as a dwelling for the purposes of the Local Government Finance Act 1992. In refusing permission to appeal, Simon Brown LJ said that the applicant's argument flew in the face of long established authority in the rating field. He referred to the Land Tribunal's decision in James v Williams Valuation Officer [1973] RA 305, which he said laid down an approach:

"which has stood the test of time and has been followed by the rating authorities and tribunals up and down this country ever since. This is the case upon which the listing officer relied and which satisfied the tribunal that this applicant's flat should be separately rated rather than aggregated with the rest of the property."

Simon Brown LJ noted that the occupiers of the various units in the house also had to share a bathroom and WC. Thus, it is plain that the mere fact that a property which is otherwise self-contained does not contain a bath or a shower does not of itself take it out of the definition of self-contained unit for the purposes of the 1992 Order.

8. The second error made by the Tribunal was that, in deciding the effect of the absence of washing facilities over and above the hand basin, the Tribunal paid particular regard to the elderly nature of the residents who might require additional assistance in such circumstances. Taking account of this factor is erroneous, because it is plain from the definition of "self-contained unit" in article 2 of the 1992 Order that the definition is concerned with how the building has been constructed or adapted. It is not concerned with who occupies the building or the manner in which it is used by particular occupiers.

9. In Beasley Listing Officer v National Council of YMCAs [2000] RA 429, I had to consider a similar problem. In that case the property in question was a YMCA hostel. It had been purpose built in 1995, and each of the flats comprised a bedsitting room with a kitchenette area and an en suite shower room. Each flat had its own door lock which was operated by a swipe card. The kitchenette area was equipped with a sink, a cooker and a fridge. The shower room was equipped with a shower, a wash basin and a lavatory. There were also facilities for common use, a meeting room, laundry, disabled lavatory, bicycle store, a refuse store and a further meeting room and a kitchen on the first floor. It can be seen that the sole distinction between the units in the present case and the units in the Beasley case is that in the latter case the units had a shower in addition to a wash hand basin. In deciding that case, the Tribunal had relied in part upon the extent of communal living in the hostel and the extent of communal facilities. The Tribunal's reasons for concluding that the units in the Beasley case were not self-contained were as follows:

"In coming to this conclusion, the tribunal has borne in mind the limited facilities enjoyed by each unit, the communal areas within Pinder House and the fact that Pinder House is controlled by one body with strict rules, including the criteria applied for residency."

Dealing with the Tribunal's reliance upon that last factor, the fact that Pinder House was controlled by one body, I said this:

"Whether Pinder House was controlled by one body and whether that body had criteria for residency, had nothing to do with whether the flats had been constructed for use as separate living accommodation."

A little earlier I had sought to identify the underlying principle:

"that when looking at articles 2 and 3 of the 1992 Order, one focuses not upon the use that is actually made of the building, but upon whether it has been constructed for use as separate living accommodation."

I said that:

"I would be prepared to accept that in deciding whether a particular flat has or has not been constructed for use as separate living accommodation within a larger building, it will often be relevant to consider the extent of the facilities which have been provided in the flat and the extent of the communal facilities which have been provided in the remainder of the building. An obvious example, perhaps, at one end of the spectrum, would be traditional student accommodation in a student hostel, where all that may be available in a student's room is simply the bedroom, and all other facilities - cooking, washing and toilet facilities - are provided communally. Plainly, such factors are, in principle, relevant to the question of whether a particular room has been constructed for use as separate living accommodation. But on the facts here, can it be said that any reasonable tribunal could have reached the conclusion that, given the extent of the facilities provided in the flats, which I have set out above, and given the extent of the communal facilities, these flats have not been constructed for use as separate living accommodation?"

Thus, the fact that the bedsits in the present case happen to be occupied by elderly people is simply an incident of the use to which they are actually put and is not a matter which should have been taken into consideration by the Tribunal in deciding the question under articles 2 and 3 of the 1992 Order.

10. I should note that on behalf of the listing officer Mr Forsdick submitted that the proper approach was simply, as he put it, to look behind the front door. Thus, one went into the unit of accommodation, saw what facilities there were behind its front door, and reached a conclusion whether it had been constructed or adapted for use as separate living accommodation. It was only necessary to look beyond the front door at whether there were other communal facilities in the property as a whole if any doubt about the answer to the statutory question remained, after one had looked inside the unit in question.

11. I find it unnecessary to decide whether one should approach the issue sequentially, by first looking through the front door of the unit in question, and only then, if necessary, at whether there are facilities in the remainder of the building as a whole. If one considers the continuum stretching from the simple bedsit with no facilities through to the luxury flat with all facilities, it is plain that these premises are on the Beasley side of the line.

12. Thirdly, the Tribunal had regard to the high degree of communality and dependency. It is plain that the extent to which there is or is not communal living is not a relevant consideration for this purpose: see per Ognall J in Batty v Burfoot [1995] 2 RA 299. Ognall J pointed out that, while the purpose behind the great majority of properties of this kind is to provide accommodation for an older generation in such a way as to allow mutual privacy whilst allowing for a degree of community which gives peace of mind, that cannot assist in answering the question whether the property in question was constructed or adapted for use as a separate dwelling. One is concerned with bricks and mortar, not with the characteristics of the occupiers.

13. The fourth and final error that is apparent from the Tribunal's reasoning is that it relied upon the proposition that there was only one access point which, in the Tribunal's opinion, would have posed a difficulty if the units were to be sold separately on the open market. Practicability of sale in the open market is not a relevant criterion: see per Ognall J in Batty v Burfoot. Subject to the availability of a fire escape, there will be only one access point to many prestigious blocks of flats which are undoubtedly self-contained units of accommodation.

14. Thus, the fact that there is only one access point to a property which contains a number of units of accommodation cannot assist in deciding whether those units are or are not self-contained units for the purposes of the 1992 Order. Thus, I am satisfied that the Tribunal erred in law in those four respects.

15. I have dealt with the matter fairly shortly and not thought it sensible to resolve the point raised by Mr Forsdick since there has been no opposition to this appeal. The Tribunal has indicated that it does not intend to resist the proceedings, and the court has received a copy of a letter signed by the residents of the 11 units saying that they do not wish to proceed with the matter either. Effectively there has been no opposition to this appeal. The only question is what relief should be given. The court's powers are set out in regulation 32 (4) of the 1993 regulations:

"The High Court may confirm, vary, set aside, revoke or remit the decision or order of the tribunal, and may make any order the tribunal could have made."

The practical question is whether any purpose would be served in remitting this matter for a further decision by the Tribunal or whether the court should step into the Tribunal's shoes and make the necessary order. I am satisfied that the latter is the proper course. For the reasons set out above the only reasonable conclusion open to the Tribunal on the facts here was that, despite the lack of a shower, these units were undoubtedly constructed or adapted for use as separate living accommodation. The fact that there has been no opposition by either the Tribunal or the residents to this appeal reinforces my view that it would be pointless to remit the matter to the Tribunal. The proper course is for me to order that there be an appropriate entry made in the list.

16. MR JUSTICE SULLIVAN: Mr Forsdick, I am happy to take submissions as to what the formal order should have been. Is that set out anywhere?

17. MR FORSDICK: The appeal notice. The way in which this arose was that there were proposals to alter the valuation list by the residents. The result is that those proposals should have been rejected. There should be a recertification back to the list as it previously stood. Paragraph 9 of the appeal notice, page 4 of the bundle.

18. MR JUSTICE SULLIVAN: That is what the listing officer had put in. The residents said: "We object to that." The Tribunal said: "Alter." That has been done in obedience. It is a question of altering it back again.

19. MR FORSDICK: For all of the properties in respect of which proposals were made. There will be an entry in the list altogether as band F.

20. MR JUSTICE SULLIVAN: Since we are dealing with a statutory list, it is important to get the wording right. I can make my own order but I would rather you prepare for me a detailed order setting out what you say should be done to the list. I will approve it on the basis that it reflects the tenor of this judgment. Is that a sensible course?

21. MR FORSDICK: Yes.

22. MR JUSTICE SULLIVAN: There is no need to come back. You can get it through to me through my clerk. I will initial it.