Hutchings v Cardiff County Council

This is an appeal to the High Court from a decision of the Valuation Tribunal for Wales sitting as an appeal panel and made on 21^st  February 2011. This appeal is a statutory appeal under regulation 44 of the Valuations Tribunal for Wales Regulations 2010, which provides that an appeal will lie to the High Court from a decision of law of an appeal panel “on a question of law”.

I  stress those words which are, as often in statutory appeals to the High Court from tribunals where those appeals have not been subsumed in the new tribunals structure, decisive in this case.

The appellant, who acts in person, but who has been no less capable in my judgment than a trained lawyer, putting his points forcibly and accurately, made an application in July 2009 to the respondent Council for a Class A exemption from his liability to pay council tax in relation to flat 2, Cornwall Street, Cardiff, to which I will hereafter refer to as “the flat”. The building itself was at the time divided into three flats. Flat 2 is the rear ground floor flat which can be identified in the plan, which Mr Hutchings hopefully tells me is not in fact to scale but which is indicative of the structure of the layout of the three flats at page 30 of the bundle, and it shows that this flat was a bedsit. There was a bedroom/lounge, then a kitchen, which Mr Hutchings tells me is somewhat smaller than is represented on the plan, and right at the back of the premises a bathroom. There is another flat on the ground floor and there is a further flat on the first floor of the property.

A dwelling in Wales is exempt from council tax if it falls within the exemptions that are prescribed by article 3 of the Council Tax (Exempt Dwellings) Order 1992. In order to be an exempt dwelling it must be a dwelling which is vacant and which (a) “requires or is undergoing major repair work to render it habitable” or (b) “is undergoing structural alteration”. (c) and (d) are not and never have been argued to apply.

Mr Hutchings, the appellant, accepts that structural alteration was only being contemplated rather than that it was being carried, and that is clear not only from what he told me but is also clear from the specification of works that were required.

The tribunal, having read and heard evidence, including oral evidence and written evidence from Mr Hutchings himself, decided it was not established that the flat fell within either exemption, and it is against that decision of that the appellant appeals.

The brief factual background is that the appellant owns 64 Cornwall Street. At the time of the application, as I have said, it was divided into three flats. On the 14 May 2009 a Mr Hockey , a housing surveyor in the housing department of the respondent council, inspected the property. I should just interpose the background to that, which has been clarified by Mr Hutchings. It is slightly different from the chronology that counsel for the respondents has provided. There had been a tenant in the flat. He had been guilty of misbehaviour, of which complaint had been made to him by Mr Hutchings. The tenant had moved out; he had not been given notice to quit or anything like that, but he simply moved out, and it appears that he then complained to the housing authority about the condition of the flat and it seems that that provoked Mr Hockey to come to the property at some stage shortly before 15 May 2009, which is the first date on the chronology. That is the date on which the notice came to the tenant that tenancy, as Mr Hutchings told me, had expired or terminated by reason of the tenant's notice on the 17th (the tenant vacated property before that time). In any event that is the introduction to Mr Hockey inspecting.

On 15 May 2009 he served an informal improvement notice on the claimant indicating the requirements that he determined or were necessary to ensure that the property met new fire safety provisions. Improvement notices and prohibition notices may be served by the relevant and responsible council under sections 11 and 12 and 20 and 21 respectively of the Housing Act 2004. This notice was neither an improvement notice nor a prohibition notice; it was an informal notice which indicated what work would be needed in the opinion of the housing inspector to remove identified health and safety hazards. But it is important to note that the housing inspector, Mr Hockey, did not at that stage -- knowing that there were in fact other flats in his premises that were actually occupied -- prohibit or purport to prohibit via prohibition notice the occupation of the premises. That is some evidence that the tribunal were entitled to take into account in determining whether the premises were habitable. If the prohibition notice had been served there would in fact, as Mr Amos has pointed out to me, under the regulations, under exemption G of the specific council tax an exemption where occupation is prohibited as a matter of law; that was not this case.

But the absence of prohibition notice, indeed the absence of a formal improvement notice, is some evidence available to the tribunal to determine whether the property was habitable.

If the works were not done it may well have been the case that the respondent’s housing authority may have taken the next step and served improvement notice. That would have meant a charge to the appellant of £270 and he would have had to do the work; or, if the requirements for such a notice existed (that is has never been decided by anyone), a prohibition notice could be served under which the council would, as I say, have prohibited occupation of the premises. In May 2009 the parties were a long way away from that.

The work to be done was extensive, I accept. They are set out in a more formal and detailed notice which is in the bundle; for example, smoke detectors which work from the mains were required, and Mr Hutchings points out that that required routing from the outside mains into all three flats and through one flat into another flat, a mains supply specifically to the relevant smoke detector; fire doors and fire resistant walls as well as other matters

The detail of that work is set out in the more extensive informal improvement notice which was before the tribunal and was assessable by them as a body experienced in these matters.

I then move back to the chronology, which is set out at tab 4 on the 3 August with the second formal improvement notice; that is the more detailed one, page 31. There was a respondent's letter of response. I have read all these documents; I do not think I need to go through them in detail. I should note 14 April 2010. As a result of the application for Class A exemptions in July 2009 Class C exemption was granted but not a Class A exception. There was an inspection of flat 2 as a result by the council tax inspector, Mr Childs . His report is at page 46. It is a very short report and it is criticised by Mr Hutchings for ignoring such matters as had been told Mr Childs, but it is a brief report which simply indicates that he had met Mr Hutchings and that there was no structural alteration taking place but that is not in issue. Both flats were vacant and unfurnished but capable of occupation. To quote the report “ I told him in my opinion they did not qualify for Class A exemption; he got very aggressive verbally at that point”.

Mr Hutchings is a man who is very articulate and can make his point very forcibly. I suspect that is probably the explanation for that comment.

Clearly the appellant claimed both flats were deserving of exemption and he made the point that they were deserving of exemption because of the work which the informal improvement notices appear to indicate was required because of the fire regulations.

As a result of that inspection by Mr. Childs, the application for Class A exemption was refused by the council. It is clear the council had considered the correct test; that can be seen at page 47. The claimant made an internal appeal against that decision, page 55 of the bundle. It is clear that, as of 14 June, no works of structural alteration commenced.

The council refused the internal appeal. They notified Mr Hutchings of his right to appeal at the tribunal, and the tribunal, the decision of which is at bundle-divider 1, and sets out evidence before the tribunal. It is clear that the tribunal were well aware of the appropriate legislation and considered correctly the two potential grounds of exemption. The evidence of the respondent is set out at 7 and 8 of the tribunal's decision. In particular also it is clear that they placed reliance on the written report of the inspector. He was not actually present at the hearing, but on page 8 the first bullet point makes it clear that they took into account his view. They were entitled to rely on the hearsay before them, and Mr Hutchings was there to challenge it. The decision also, at 9-10, summarises Mr Hutchings's evidence and Mr Hutchings maintained and does maintain still that the property was not habitable due to safety factors. He describes the work that had actually been done and in fact, in the result, he did not do the work which would have been required on the properties if they had remained in multiple occupation but rather eventually decided as a matter of economics to determine that the property should be returned to one single house.

On the evidence it is quite clear the tribunal could not have found the property was actually undergoing or had undergone structural alteration. In the event that was a factual issue of them and there was ample material on which they could have reached that decision, and it would have been surprising if they had not, so (b) of the exemptions simply does not arise for consideration.

The real issue is whether the flat number 2 required major repair work to render it habitable. Work was required to render the property compliant with the new fire safety requirements, but that is not the same as the issue which the tribunal had to determine as to whether the properties were habitable, capable of being lived in, which is a pure question of fact. The tribunal had a description of works; they had the opinion and the written evidence of the inspector. They had the evidence that one of the other flats at least was being occupied while works were being carried out. In other words, the housing authority had not prohibited the occupation of the premises while the works were going to be completed and it seems to me that it was open both to the authority, the respondent council in this case, and to the tribunal to conclude that it could have been done while the flats were occupied and that the flats were habitable at the time when the tribunal were considering the exemption.

The appellant's case is that the flats were unsafe to occupy but no formal improvement notice had been served or was ever served, nor a prohibition notice; therefore the flats could lawfully still be occupied and could be occupied until an prohibition notice was served. The decision therefore of whether the flat required major repair work to render it habitable remains a purely factual decision for the tribunal; they took into account only relevant and material matters including the evidence given to them by the appellant. There was in fact ample evidence that the properties were indeed habitable and did not require work to make them habitable and there can be no question of that being an irrational decision. This appeal is not a merits based one and the question for the tribunal was a question of pure fact; it is not a legal issue and it is therefore inevitable, it seems to me, that as a result this appeal should be dismissed.

It is a purely factual decision; there is no error of law apparent in that decision therefore I dismiss the appeal. Thank you very much.