Hardy v Sefton Metropolitan Borough Council

Council tax is governed by the Local Government Finance Act 1992 (“the 1992 Act”). Provision is made in ss 6 and 7 as to who is normally liable to pay the tax. However under s 8 in prescribed cases the normal liability is overridden. The respondent said that arrangements made by the appellant in May 1998 for three people to live in his flat brought that flat within one of the prescribed cases, so as to make him liable to pay the tax. In a decision dated 10 January 2005 the Merseyside Valuation Tribunal (“the Tribunal”) agreed with the respondent. On 1 April 2005 the appellant lodged a notice of appeal in this court, including an application for an extension of the time permitted for such an appeal. The sole ground of appeal was that the tribunal misinterpreted the regulation defining the prescribed cases. The appellant’s argument before the tribunal had been that he should not be liable because the three individuals comprised a single household, and I shall call this ground of appeal “the Single Household issue”.

The appellant’s skeleton argument, due on 10 March 2006 but received by the respondent on 14 March 2006, dealt with the Single Household issue in paragraphs 1 to 11. Paragraphs 12 and 13 raised a point which did not feature in the appellant’s notice. This was that the respondent failed in its duty to serve a demand notice on him “as soon as practicable after the day the billing authority sets an amount of council tax for the relevant year.” I shall call this “the Demand Notice issue.” The respondent’s skeleton argument, due on 17 March 2006 but received by the appellant on 24 March 2006, said on the Demand Notice issue that if necessary the respondent would contend that the tribunal had concluded, and was entitled to conclude, that the appellant had not made out his case on the merits. I say “if necessary” because the respondent in relation to the Demand Notice issue sought to take a new point, saying that the tribunal had no jurisdiction to consider that issue. I shall call this new point “the Jurisdiction issue”.

At the outset of the hearing before me the respondent said that the appellant should not be permitted to raise the Demand Notice issue. The appellant said that an adjournment was needed to enable him to deal with the Jurisdiction issue. By agreement I heard oral submissions from the appellant, who appeared in person, on the Single Household issue and the Demand Notice issue. Mr Ranjit Bhose, on behalf of the respondent, then addressed me on those issues and on the Jurisdiction issue. Thereafter the case was adjourned for written submissions. Following considerations of those submissions I grant the appellant the extension of time needed for his appellant’s notice, and I grant permission to amend the appellant’s notice so as to rely on paragraphs 12 and 13 of his skeleton argument. The only substantial reason put forward for opposing the amendment was that it was said to be bound to fail. In my view the arguments which arise are proper arguments to be considered and it would not be right to dismiss them out of hand. For reasons given below, I permit the respondent to advance arguments on the Jurisdiction issue. I conclude that an adjournment is unnecessary, as the time given to the parties for written submissions has enabled them to deal with all points that arise.

In this judgment I set out the legislative framework before dealing with the three issues in turn.

As recorded in the respondent’s skeleton argument, liability to pay Council Tax in respect of any chargeable dwelling in England is determined by the 1992 Act and regulations made thereunder. Generally, the person who is liable is the person who is in residence in the dwelling in question. The hierarchy for determining who is liable is set out within s 6(2).

Section 8, however, makes provision for certain exceptional cases where someone else is liable to pay.  It provides, materially, as follows:

“8.(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 this subsection.

(2)

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 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.

…
(6) Regulations prescribing a class of chargeable dwellings for the purposes of subsection (1) or (2) above may provide that, in relation to any dwelling of that class, subsection (3) above shall have effect as if for the reference to the owner of the dwelling there were substituted a reference to the person falling within such description as may be prescribed.”

Regulations have been made under s 8(6), prescribing classes of chargeable dwellings for the purposes of s 8(1), namely the Council Tax (Liability for Owners) Regulations 1992, SI 1992 No.551, as amended. I shall refer to them as “the Prescribed Classes Regulations.” Reg 2 prescribes six classes of chargeable dwelling for the purposes of s 8(1). The relevant class is Class C. Although Class C has been amended on two occasions (see below), it has remained in its current form since 1 April 1995 - for the whole of the period material to the present case.

Class C is described as follows:

By s.16(1) of the Act, a person may appeal to a Valuation Tribunal if he is aggrieved by—

Schedule 2 of the 1992 Act, which is given effect by s 14(1), enables the Secretary of State to make regulations as to collection and other aspects of administration as regards council tax. Regulations made by the Secretary of State under this power include those in Part V, “Billing” of the Council Tax (Administration and Enforcement) Regulations 1992 ("the Administration and Enforcement Regulations"). By reg 19 a demand notice is to be served on or as soon as practicable after the date the billing authority first sets an amount of council tax for the relevant year for the category of dwellings which include the chargeable dwelling to which the notice relates.

Schedule 4 of the 1992 Act, which is given effect by s 14(3), enables the Secretary of State to make regulations as to the recovery of sums due. Regulations made by the Secretary of State under that power includes those in Part VI “Enforcement” of the Administration and Enforcement Regulations.

These empower the billing authority to seek a liability order in the Magistrates’ Court. By reg 34(2) the application is made by making a complaint and requesting the issue of a summons directed to the individual to appear before the court to show why the sum outstanding has not been paid. By reg 34(6) the court shall, on the hearing of the complaint, “make the order if it is satisfied that the sum has become due and payable by the defendant and has not been paid.”

It may also be noted that reg 57 provides:

“(1)

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”.

The Tribunal’s reasons for its decision summarised the respondent’s case at the hearing. This included the following:

“Background

On 17 May 1998, the dwelling known as 4b The Serpentine South, Crosby, was let to three individuals namely Ian Alcock, Ian Jervis and James Oldfield. Each tenant was given a tenancy agreement to occupy a named room within the property as follows:

Ian Alcock - Room 1

James Oldfield - Room 2

Ian Jervis - Room 3

Each tenant applied for and was awarded housing benefit in respect of the parts of the property they had a liability to pay rent in respect of.

The last occupant of the property vacated the property on 5 August 2001, and as such an exemption was granted in respect of the property for a period of 6 months from 5 August 2001.

Between October 2002 and April 2004, the council [i.e. the respondent] entered into correspondence with the appellant disputing his liability for the property, (copies of which were provided).

Over recent months since Mr Hardy had been disputing his liability to pay the council tax bill in question, the council has attempted to locate all of the relevant paperwork supporting the council’s case. A copy of the tenancy agreement that was submitted to the council in support of Ian Alcock’s application for housing benefit in May 1998 was shown to the Tribunal. Also provided were photocopies of part of his actual housing benefit application.

Attention was drawn to the Rent Officer’s determination for housing benefit purposes in which he describes the dwelling for which he is making a determination as Room 1, 4b The Serpentine South.

Due to the length of time that has passed the council has been unable to locate the housing benefit records in respect of Ian Jervis and James Oldfied despite an extensive search... Notwithstanding this fact, the council’s computer records indicate that both of the other tenants were awarded housing benefit for relevant periods in respect of rooms 2 and 3 respectively. Due to the nature of the housing benefit regulations, the council would not have awarded housing benefit to them unless the address quoted on the tenancies matched the part of the property which they occupied.

Additional information

On the day of the original hearing on 7 September 2004, Mr Hardy presented a copy of a renewal tenancy dated 17 April 1999, which was taken at face value on the day of the hearing. The tenancy appeared to show that Mr Alcock later took on the tenancy of the whole flat known as 4b The Serpentine South, Crosby and not just one room within it. And as such the rent was £150.00 per week as opposed to the previous level of £50.00 per week.

However, upon return to the office, it was discovered that there was a copy of a tenancy agreement in Mr Alcock’s housing benefit records also dated 17 April 1999, but clearly stating that he was continuing to rent room 1 only and his rent was remaining at £50.00 per week. Mr Alcock submitted this agreement to the council on 29 November 2000. The billing authority has noted the similarity of the “hand-written” parts of both versions of the tenancy agreement and it would appear that the documents produced to the council may have been amended at a later date.”

It was on this basis that the respondent contended before the Tribunal that Class C(b)(i) applied.

The Tribunal’s reasons recorded that the appellant had questioned the respondent’s representative. Among other things the appellant suggested that there should have been a visit which would have revealed that there were no locks on the doors, and that the properties could have been seen to be a house in single occupation. The Tribunal then described how the appellant in his submissions had relied on cases on the meaning of “house in multiple occupation.” The appellant had identified factors pointing against multiple occupation in the present case. These included the fact that all three tenants occupied on the same date, and came as a group of friends. Each had decided who would have which bedroom – there were no numbers on the bedroom doors. They used the rest of the flat together. They were responsible for the whole house and shared all expenses. There being no locks on the doors, he said it was a single household. He asserted that responsibility for filling vacancies was a responsibility of the tenants and not the landlord. There were only three tenants, it was not a large hostel. When one of the group left, the household kept going. They did not bring in any strangers. They shared bills and food, they were not independent but living as a single household.

The Tribunal rejected the appellant’s arguments on this point. It relied on Mr Alcock’s housing benefit form and his tenancy agreement dated 2 May 1998, each of them referring to him having a tenancy of one bedroom. Those documents proved that he was a tenant of part only of the dwelling. As to Mr Jervis and Mr Oldfield, it was known that they each received housing benefit in respect of rooms 2 and 3 respectively. That information supported the contention that each tenant was a tenant of part only of the dwelling. That being so, the facts met the requirements of Class C (b) (i). The cases relied upon by the appellant were not in point.

In support of his appeal on this point the appellant described how the Prescribed Classes Regulations had changed. In 1992 Class C which was headed “houses in multiple occupations”, had been defined as a dwelling inhabited by persons who did not constitute a single household, each of whom either (a) was a tenant of or had a licence to occupy part only of the dwelling; or (b) had a licence to occupy but was not liable (whether alone or jointly with other persons) to pay rent or a licence fee in respect of a dwelling as a whole.

Amendments in 1993 altered Class C so that it referred to a dwelling which (a) was originally constructed or subsequently adapted for occupations by persons who do not constitute a single household; and (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 licence to occupy, part only of the dwelling or (ii) has a licence to occupy but is not liable (whether alone or jointly with other persons) to pay rent or a licence fee in respect of the dwelling as a whole.

Thereafter in 1995 a further amendment produced the present version of Class C. This was achieved by replacing “and” with the word “or” at the end of Class C (a).

The appellant relied first upon some observations of Collins J in Pearson v Haringey London Borough Council (1998) RVR 252. That case concerned Class C (a), and thus the issue now raised by the appellant did not arise. Nevertheless he was able to point to a summary by Collins J of the current position as follows:

“…it is only necessary to establish either that it [the dwelling] was originally constructed or subsequently adapted for occupation by persons who do not constitute a single household, or it is inhabited by tenants or licensees who are not members of a single household.”

I have italicised the passage that the appellant relies upon. It seems to me that it does not assist the appellant in the least. It is perfectly plain that in that passage Collins J is using the phrase “tenants or licensees who are not members of a single household” as shorthand in order to refer to the cases which fall into Class C (b). A similar usage occurs in the penultimate paragraph of the report. Collins J was not concerned in that case with any relevant aspect of the meaning of Class C (b).

The same is true of the next case cited by the appellant, Hayes v Humberside Valuation Tribunal Court of Appeal, unreported, 13 November 1997. The Court of Appeal was concerned with Class C (a), and held that a tribunal had not acted unreasonably in concluding that the provision of locks on the bedroom doors had adapted the dwelling for occupation by persons who did not constitute a single household. It may be noted in passing that Kennedy LJ said that Class C (b) looked to the contractual rights of the actual occupiers.

The appellant then took me to the decision of the Court of Appeal in Barnes Sheffield City Council (1995) 27 HLR 719. A house was let to a group of students. A question arose as to whether it was a “house in multiple occupation” under Part XI of the Housing Act 1985. By s 345 of that Act such a house was to be defined as “a house which is occupied by persons who do not form a single household.” The Court of Appeal said that a number of tests could be applied to the question whether a property was occupied by persons forming a single household. There was no litmus test which could be applied to the question, but a number of individual factors were helpful.

The appellant said the original intention of Parliament in relation to Class C was to deal with hostel and bed-sits, where collecting tax from transient occupiers was an almost impossible task. Accordingly, the regulations enabled the council to recover the tax from the owner, and it would then be for the owner to recover the tax from the occupiers. Despite the various changes in the regulations, it remained their intention to target hostels, nurses’ homes and bed-sits and the like.

In support of this contention the appellant relied upon a handbook produced by the respondent, which said that Class C applied to any dwelling containing a number of “people who do not form part of a single household” and who pay rent separately for different parts of the dwelling.

The response to these submissions advanced by Mr Bhose was that the appellant’s arguments were misconceived. From 1995 onwards Class C (b) stood on its own. There was no requirement that for this purpose the Tribunal had to form a view about whether the dwelling was occupied by persons who were not a single household. The question that the Tribunal had to answer was the question identified by the words of Class C (b) taken on their own. Mr Bhose relied on the observations of Kennedy LJ in Hayes: one simply looked at the contractual position. In fact in the present case the tenancy agreement contained a manuscript provision that council tax was excluded. As to that, Mr Bhose said the landlord had to run the risk that the relevant legislative provisions might impose a duty to pay council tax on him rather than on his tenant.

In his written submissions by way of reply the appellant repeated his points about hostels and bed-sits, and as to what was “happening on the ground” in the present case, including the absence of locks on the doors. The appellant also repeated his argument about the respondent’s handbook, and sought to add that the separate tenancy agreements were a fiction created so that the individuals in question could claim housing benefits.

In my judgment the appellant’s arguments on the Single Household issue have no legal merit. The Prescribed Classes Regulations when originally made in 1992 stipulated that in order to fall within Class C it was a prerequisite that the inhabitants did not constitute a single household. That was plainly a high hurdle for the billing authority to surmount. The 1993 revisions modified the wordings so as to lower the hurdle. The use of the word “and” after setting out the hurdle showed that it was still a prerequisite. The modified hurdle was that the dwelling must have been originally constructed or subsequently adapted for occupation by persons who did not constitute a single household. What happened in 1995 was that the word “and” was replaced by “or”. As a matter of ordinary English usage this meant that the hurdle was no longer a prerequisite. The obvious intention, and the only conceivable purpose, of the 1995 change was to ensure that where the billing authority said that a dwelling fell within Class (b) any question as to the existence of, or construction or adaptation for, a single household was to become irrelevant.

The main argument for the appellant was to suggest that an intention remained to insist on “single household” occupation, in fact if not in strict form. I doubt whether this is open to him in light of the observations of Kennedy LJ in Hayes. For present purpose, however, I will assume that the appellant is right to say that the Tribunal must look at what happened “on the ground”. As to his suggestion that the legislative focus as to what happens on the ground is on hostels and accommodation of like kind, however, I can see no reason for thinking that the Prescribed Classes Regulations are concerned to do anything other than apply to those classes of case which fall within their wording. The Tribunal in the present case looked at the position “on the ground” and had material which entitled it to conclude that during the period in question these premises fell within that wording. Accordingly I agree with the Tribunal that cases on the concept of a “single household” are irrelevant to the present case. As to the respondent’s practice notes, it seems to me that these merely reflected the evolution of the regulations. Class C was commonly referred to as “multiple occupation”. The converse was commonly referred to as a “single household”. The precise content of this rather loose terminology changed as Class C successfully redefined. The result was that, like Collins J in Pearson, the manual was using “single household” as a shorthand for the rather more elaborate definition found in Class C (b).

There remains on this point only the suggestion advanced in the appellant’s written reply that the documentation, including the tenancy agreement of May 1998 with Mr Alcock, was a sham. This is not a point raised in the appellant’s notice. Nor was it raised in the appellant’s skeleton argument. I do not think it is open to the appellant to raise any such suggestion now. In any event, however, I can see no basis for challenging in this court the Tribunal’s conclusion that it was entitled to rely upon the tenancy agreement of May 1998 with Mr Alcock.

The Tribunal’s account of the case advanced by the respondent suggests that at this stage there was no reference to the Demand Notice issue. The Tribunal records that after the respondent’s representative had put forward the respondent’s case, he was questioned by the appellant. Those questions focused on what might have happened if there had been an inspection at the time. There is no record of any questioning of the respondent’s representatives about an alleged failure to issue a demand notice within the time required.

The appellant then advanced his submissions to the Tribunal. Having set out his submissions on the Single Household issue, the Tribunal’s reasons then described him as making the following points:

“In the event that the [Tribunal] finds that the property is [within Class C], Mr Hardy asked that they follow the decision that the West Midland (West) Valuation Tribunal in a case… known as Miss R. In that case the appellant’s liability had been back dated to October 1999. The tribunal decided that there had been a clear failure of the billing authority’s administration. The tribunal decided that the effective date for the appellant’s liability should be restricted to 1 April 2003 – that being the start of the financial year in which the appeal property was designated as [Class C]…it was not until 2003 that [the respondent] told the landlord that the property had been designated… by this time the tenants had long gone. Mr Hardy’s case was strongly prejudiced by this delay. He asked that the [tribunal] follow the West Midland (West) decision and refuse to back date the liability prior to 2003.”

The Tribunal set out its conclusion on this aspect as follows:

“The [Tribunal] has decided that the liability should not be restricted as suggested by Mr Hardy. There is no evidence that [the respondent] has failed to administer the matter in an equitable fashion. [The respondent] has the power to back date liability and the [Tribunal] would not wish to interfere with its power in this case.”

The appellant’s skeleton argument in this court set out the nature of his case. In this regard it referred to a breach of regulations 18 and 19 of the Administration and Enforcement Regulations, and complained of “procedural and substantive prejudice.”

During the course of oral argument by the appellant, I asked him what he had submitted to the Tribunal by way of relevant evidence on this point. The reply was that he had questioned the respondent’s representatives about the changes to the regulations on Class C, about documentation being available in the past, and about inspection, and the respondent’s representative had accepted that an absence of locks on the doors could lead to a conclusion that the dwelling was one household. The appellant had then made the submissions recorded earlier in this judgment.

I also asked the appellant what he had said to the Tribunal about the time at which the respondent had all the information it needed in order to conclude that Class C applied. The appellant replied that this was self evident from 8 July 1998 onwards. The significance of this date was that it was the date of the determination, for the purposes of housing benefit, that the rent was not excessive. The appellant said his case before the tribunal was that the respondent should have notified him on or shortly after that date.

Mr Bhose’s principal point in response was the Jurisdiction issue, which I shall deal with shortly. In addition he submitted, among other things, that the premises had been unoccupied in April 1998 and demands would have been sent to the appellant. There had, he said, been no prior warning that the West Midlands (West) case would be relied on by the appellant at the Tribunal hearing.

In his written submissions in reply the appellant reiterated that a visit at the time would have demonstrated that the dwelling was a “single household”. He added that the respondent could not produce documentation from the relevant time. It seemed the respondent had not used information available to it as to his address. It had been important for him to know that a claim might be made for payment and accordingly that he should take steps to prepare and assemble necessary evidence and to arrange his finances to make payment. The respondent’s failings had prevented him, he said, from adjusting the rent if the flat did indeed fall into Class C.

As will be seen below, I take the view that the Tribunal did not have jurisdiction to deal with the points raised by the appellant under this head. If, contrary to that, the Tribunal was empowered to deal with those points, then it seems to me that the burden of establishing his case plainly lay with the appellant. I have some doubt whether the appellant could properly be regarded as having satisfied that burden. The appellant accepted that he signed three separate tenancy agreements, one with each of the three occupiers. There was no express evidence from the appellant that when he did this, or at any later stage, he was unaware of the risk that he ran of falling within Class C. Nor does it seem likely that an inspection at the time would have made any difference. However, the reasoning of the Tribunal is so terse that I would have required the Tribunal to re-examine the matter and to give a fully reasoned decision on the point. In that regard it would have been necessary for this court to examine the legal basis for the appellant’s submission, and to give guidance to the Tribunal as to the correct legal test. However, none of this arises, for reasons to which I now turn.

For present purposes I am concerned with occasions when a Tribunal is called on, under s 16 of the 1992 Act, to examine a decision of a billing authority that a dwelling is a chargeable dwelling, or that the person in question is liable to pay council tax in respect of that dwelling, or to examine any calculation made by such an authority of an amount which the person is liable to pay to the authority in respect of council tax. Is the Tribunal limited to a jurisdiction (“the narrow jurisdiction”) of deciding whether, on the true construction of the 1992 Act and relevant regulations, the facts of the case before it show that the dwelling is a chargeable dwelling, that the person in question is liable to pay council tax in respect of such a dwelling, or that the calculation made by the authority of an amount which that person is liable to pay to the authority in respect of council tax is or is not accurate? Or does it have a wider jurisdiction (“the wide jurisdiction”) entitling it to investigate whether the billing authority has acted in breach of a duty owed by it to the other party to the appeal and if so to depart from the decision which would otherwise be appropriate?

The appellant’s written submissions in reply complained that this point had not been taken below. He placed reliance on Jones v. MBNA International BankCA, unreported, 30th June 2000. In that casePeter Gibson LJ said:

It is not in dispute that to withdraw a concession or take a point not argued in the lower court requires the leave of this court. In general the court expects each party to advance his whole case at the trial. In the interests of fairness to the other party this court should be slow to allow new points, which were available to be taken at the trial but were not taken, to be advanced for the first time in this court. That consideration is the weightier if further evidence might have been adduced at the trial, had the point been taken then, or if the decision on the point requires an evaluation of all the evidence and could be affected by the impression which the trial judge receives from seeing and hearing the witnesses. Indeed it is hard to see how, if those circumstances obtained, this court, having regard to the overriding objective of dealing with cases justly, could allow that new point to be taken.

May LJ agreed, and added:

Civil trials are conducted on the basis that the court decides the factual and legal issues which the parties bring before the court. Normally each party should bring before the court the whole relevant case that he wishes to advance. He may choose to confine his claim or defence to some only of the theoretical ways in which the case might be put. If he does so, the court will decide the issues which are raised and normally will not decide issues which are not raised. Normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings. Equally, a party cannot, in my judgment, normally seek to appeal a trial judge's decision on the basis that a claim, which could have been brought before the trial judge, but was not, would have succeeded if it had been so brought. The justice of this as a general principle is, in my view, obvious. It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled, and the court requires, to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the court, what case management and administrative decisions and directions to make and give, and the substantive decisions in the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis. There may be exceptional cases in which the court would not apply the general principle which I have expressed. But in my view this is not such a case.

The appellant also cited Australia and New Zealand Banking Group Ltd v Société Générale [2000] 1 All ER (Comm) 682. However the Court of Appeal’s judgment on this aspect of the case does not add significantly to what was said in Jones v MBNA.

I do not in any way underestimate the importance of the principles explained in these two cases. Those principles will often be applied to an appeal to this court. However, the present case is different in at least one crucial respect. The point at issue concerns the jurisdiction of the Tribunal. Jurisdiction cannot generally be acquired by concession. In essence, by paragraphs 12 and 13 of his skeleton argument the appellant asserts that the Tribunal had the jurisdiction not to make the order which would otherwise have been appropriate. If he wishes to advance that proposition, he cannot in my view complain if the respondent in this court questions the Tribunal’s jurisdiction, even thought the respondent did not do so below.

Turning to the merits of the Jurisdiction issue, at first sight there is no obvious basis in the 1992 Act or in any relevant regulation for the wide jurisdiction for which the appellant contends. To all intents and purposes the Tribunal is concerned only with the narrow questions whether a dwelling is a chargeable dwelling, whether a person is liable to pay council tax in respect of such a dwelling, or whether a calculation made by a billing authority of an amount which the person is liable to pay to the authority in respect of council tax is accurate.

The appellant’s starting point in argument before the Tribunal was the decision of the West Midlands (West) Valuation Tribunal in the case of Miss R. The report of that decision put before the Tribunal and this court is very brief. So far as material, it reads:

“The [Tribunal] had no difficulty in determining that the appeal property was a house in multiple occupation.

During the course of the hearing, the billing authority conceded that all of the relevant information, which led to its determination that the appeal dwelling was a house in multiple occupation, had been in the possession of its housing benefit office since December 1999. Whilst the failure of two of its departments to communicate was unfortunate, this was not relevant to these proceedings and not a matter with which the [Tribunal] should be concerned.

The clerk, however, disagreed and drew both the parties and the [Tribunal’s] attention to the cases of Encon Instillation Limited v Nottingham City Council and Regentford Limited v Thanet District Council.

…There had been a clear failure in the [billing authority’s] administration. Consequently, the [Tribunal] decided that the effective date for the appellant’s liability should be restricted to 1 April 2003, being the beginning of the financial year within which the appeal property is designated a house in multiple occupation.

The [Tribunal] was of the opinion that had the [billing authority] made its decision in December 1999, as it should have been able to since it had been in possession of all of the facts, the appellant would have been in a position to appeal against her liability at an earlier stage. Had that been the case, an alternative solution could have been found, for instance, Miss R could have increased the rent to take account of her council tax liability. Unfortunately, since housing benefit could only be back dated for 52 weeks this possible solution was unworkable.

In view of the foregoing, the appeal was allowed in part.”

The first authority cited by the clerk is Encon Insulation Ltd v. Nottingham City Council [1999] RA 382. This court was there concerned with an appeal from a Magistrates’ Court which had granted applications by a billing authority for liability orders for non-domestic rates. The applications were opposed on the grounds that the billing authority had failed to comply with Regulation 5(1) of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 SI No 1058. This provided that a demand notice must be served "on or so soon as practicable ... after the 1^st April in the relevant year". Mr David Pannick QC (sitting as a High Court Judge) held that the Magistrates’ court had been wrong to reject this contention on the merits. As to the underlying legal principle that a breach of regulation 5(1) would disentitle the authority from seeking a liability order, he said this:

"Counsel for the billing authority has not advanced any argument seeking to limit the consequences of there being a breach of reg 5 (1). That does not surprise me. Regulation 5 (1) contains a balance between the interests of the ratepayers and the practicalities of administration. Parliament must have intended that if the billing authority has not complied with the requirement it would be wrong in principle for the ratepayer to have an obligation thereafter to pay."

The second authority cited by the clerk was Regentford Ltd v Thanet District Council [2004] EWHC 246 (Admin). That case is closer to the present, for it involved reg 19 of the Administration & Enforcement Regulations. It was said that the matter should be remitted to the Magistrates’ Court so that they could determine whether an alleged breach of reg 19 should lead them to refuse a liability order. Lightman J said this:

“21.

The language of Regulation 19 is not as strong as that of the regulation under consideration in [Encon]. The words used are "is to be" rather than "must be". As it seems to me this language admits of the construction that a breach of this statutory duty by a billing authority does not operate in all cases as a windfall to the person liable, but precludes a claim to payment and a duty to pay only when the breach has occasioned some procedural or substantive prejudice.
22. Regentford claim that the Council failed to serve the demand notice as soon as practicable, and that the delay in this case has occasioned prejudice in the sense that the records and information to establish that the Properties were not in multiple occupation and that others were resident at the relevant time are no longer available. There might well have been force in those submissions if Regentford had attended the hearing before the Justices and presented them. But it allowed the proceedings to go by default. They had the opportunity to have their day in court but did not avail themselves of it.”

The appellant accepted that Lightman J was right to hold that prejudice must be shown in order to argue that a breach of reg 19 should lead the Magistrates’ Court to refuse a liability order. It was upon the basis of such prejudice, rather than any more general “equitable” approach that might be found in the case of Miss R, that the appellant advanced his submissions in this court. For the purposes of the present appeal, I am prepared to assume that where such prejudice is established the Magistrates’ Court has jurisdiction to refuse a liability order. It does not follow from this, however, that the Tribunal has the same jurisdiction as the Magistrates’ court. The Magistrates’ Court is required by reg 34 (6) of the Administration and Enforcement Regulations to make a liability order “if it is satisfied that the sum has become payable by the defendant and has not been paid.” This means that the Magistrates’ Court must enquire into questions as to whether the tax payer is entitled to set off monies owed by the billing authority, or is entitled to say in law that the billing authority is precluded from asserting any liability to pay.

In relation to valuation tribunals no similar words are used by the statutes or by relevant regulations. Nor, given the analysis in Regentford, is there any need to read such words in. As it seems to me, a wide range of questions could possibly arise when considering whether there is some obstacle in law to an assertion by the billing authority that liability to pay has arisen. The Magistrates’ Court is better suited to examining the broad range of questions which might arise, and which if examined in a Valuation Tribunal might take it outside that tribunal’s particular specialisms. Moreover, reading in a wide jurisdiction for the tribunal would have the consequence that the reasoning in Regentford could not stand. This is because regulation 57 has the effect that the Magistrates’ Court may not consider a matter which could be the subject of an appeal to the tribunal. This point was not taken in Regentford, but if it is right then the result would be that the analysis in Regentford would be wrong. That seems to me to be an undesirable conclusion.

Accordingly, I conclude that the Tribunal has no jurisdiction to investigate the question whether the respondent was in breach of regs 18 and 19. I should add that I have been told by the parties that the Magistrates’ Court has indeed made a liability order against the appellant. It seems that the Regentford point may have been touched on in the Magistrates’ Court, but I do not have full information in that regard. In those circumstances I do not propose to say anything about issues which might have arisen as to whether it was appropriate to attempt in this court to litigate a matter which on the appellant’s own case fell within the non-exclusive jurisdiction of the Magistrates.

For the reasons given above, the appellant’s main argument fails. His argument as to the breach of reg 19 fails because the Tribunal has no jurisdiction to consider that question. In these circumstances the appeal must be dismissed.