Coll (Listing Officer) v Mooney

This is a statutory appeal by the Appellant Listing Officer against the decision of the Valuation Tribunal for England (“VTE”) dated 21 August 2015 in which it ordered the Listing Officer to alter the valuation list for the entry in respect of 9 – 11 Ebenezer Road, Hastings, East Sussex TN34 3BS to show one entry for the property, instead of two.

The property known as no. 9 – 11 Ebenezer Road was constructed in around 1790, in the historic old town of Hastings, in a conservation area. It is Grade II listed. It was built as one dwelling, on three floors. However, at some point in the past, the property was converted into two dwellings.

It was listed as two separate units of property (hereditaments) when the valuation list for council tax was drawn up in 1993. At that date, there was an entry for no. 9 Ebenezer Road, which comprised all the rooms on the lower ground floor (consisting of a kitchen, bathroom, sitting room and dining room) plus two bedrooms on the ground floor, accessed by a staircase from a hallway on the lower ground floor. The entrance to no. 9 was solely from the lower ground floor external door; the internal access was blocked off. The entry for no. 11 Ebenezer Road comprised the remainder of the ground floor (consisting of a kitchen, dining room, bathroom and shower room, with external door and hall) and the first floor (consisting of a sitting room, two bedrooms and a study/bedroom and WC). The two units were in different tax bands: no. 9 was in band B and no. 11 was in band D.

In 2014, the Respondent and her husband (Mr and Mrs Mooney) purchased the entirety of no. 9 – 11 Ebenezer Road, with the intention of converting it back into a single dwelling. They obtained planning permission and listed building consent for a change of use from two dwellings to a single dwelling, together with alterations and extensions. However, there were severe restrictions on the changes they could make to the building because of its status as a listed building. They had hoped to open up the lower ground floor to create a kitchen/dining room but found that there was insufficient space for them to do so, because they were refused permission to remove the existing staircase and to block up the external entrance to the hall in the lower ground floor. Instead, they installed a laundry/utility room on the lower ground floor, in place of the previous kitchen and bathroom, and created a new staircase running from just outside the utility room to just outside the ground floor kitchen, to improve the access between the two rooms. They demolished a small modern extension; installed a new bathroom; and converted the sitting room into a bedroom. The original staircase to the ground floor was retained but the partition wall was removed so that there was open access into the ground floor.

Upon completion of the works, the ground floor comprised a kitchen, a sitting area, dining room, two bedrooms and a shower room, and a hall leading to the main external entrance to the house. The first floor comprised a drawing room, study, bedroom and bathroom with dressing area.

Mrs Mooney applied to the Valuation Office Agency Listing Officer to alter the valuation list to remove the two entries for 9 and 11 Ebenezer Road and to replace them with one entry for the entire property at 9 – 11 Ebenezer Road, to reflect the fact that the property had been restored to one dwelling.

In a decision dated 4 December 2014, later reviewed on 9 March 2015, the Listing Officer removed the two entries for 9 and 11 Ebenezer Road and replaced them with two new entries. One entry was for 9-11 Ebenezer Road, in band D, comprising the ground and first floors. The other entry was for the lower ground floor only (called Lower Ground Floor, 9, Ebenezer Road), in band A. The reason for the decision was that, in the view of the Listing Officer, the lower ground floor was a self-contained unit.

Mrs Mooney appealed to the VTE, which held an oral hearing on 24 July 2015. In its written decision, dated 21 August 2015, it found that the lower ground floor was not a separate unit of accommodation, and allowed the appeal. It held, at Decision (“D”) [14] – [17]:

“14.

The Panel, having heard and considered the evidence and having been advised on matters of law, concluded that the lower ground floor was not a separate unit of accommodation. In reaching this decision, the Panel disregarded the intentions of the appellants and focussed on the application of the objective ‘bricks and mortar’ test.

15.

In terms of this test, the determination as to whether the lower ground floor was capable of being used as a separate unit of accommodation, turned on the status of the utility room. It was clear that the utility room had the capability of being used for the preparation of food. It was however also the case that the utility room was the laundry room for the whole house and that the room was not therefore available for separate and exclusive use. It followed from this that the utility room did not constitute a room that was part of a separate self-contained unit.

16.

In arriving at their decision, the Panel were also mindful of the physical characteristics of the dwelling. The property was a Grade II listed building that had severe restrictions placed upon how it might be re-configured by the appellants. This had a major impact on the layout of the property. The Panel were of the view that the character of the building could not be ignored in applying the ‘bricks and mortar’ test. In relation to the appeal property, its character was that of a Grade II listing building that could not be adapted for use as conventional living accommodation.

17.

Therefore having regard to the legislative definition of ‘self-contained unit’, case law and considering the physical characterises of the whole of 9-11 Ebenezer Road the Panel were not persuaded that the dwelling contained two separate self-contained units. The Panel concluded that 9-11 Ebenezer Road consisted of one hereditament.”

The Listing Officer submitted that the VTE erred in law at D [15] because it determined that the lower ground floor was not a self-contained unit on the basis that the utility room “was the laundry room for the whole house”, thereby impermissibly relying on the use to which that room was actually put, i.e. its use as a laundry.

Before the VTE, the Listing Officer argued that the utility room had a butler sink in it and room for either a microwave or benchtop cooker and so could be classed as a kitchen, and so the lower ground floor had all the ingredients of a self-contained unit (at D [13]). The VTE agreed with the Listing Officer that the utility room “had the capability of being used for the preparation of food” (at D [15]). By agreeing that the utility room could be used as a kitchen, the VTE had effectively found that the objective physical characteristics of the lower ground floor were such as to render it capable of use as separate living accommodation. On the ‘bricks and mortar’ principle, that was in itself sufficient to determine the question.

Yet the VTE departed from this conclusion because “the utility room was the laundry room for the whole house and the room was not therefore available for separate and exclusive use” D [15]. This was a reference to the actual use that was presently being made of that room, which was an impermissible basis for its decision.

The correct approach was to adopt an objective or “bricks and mortar” approach and consider what had physically been constructed, and whether it was capable of use as separate living accommodation. The manner in which the building was being used by particular occupiers was not relevant.

The Listing Officer submitted that the VTE erred in law because it relied upon the fact the building was “a Grade II listing building that could not be adapted for use as conventional living accommodation” (D [16]). The VTE wasimpermissibly considering as relevant the reason why the building (and its constituent parts) was constructed in that manner. However, the reason was irrelevant. It was the result of the building work - the objective nature of the building - which mattered.

Under the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009, regulation 43(1), an appeal lies to the High Court on a question of law arising out of a decision or order which is given or made by the VTE on an appeal under the Council Tax Regulations. Sub-section 43(4) provides that the High Court may confirm, vary, set aside, revoke or remit the decision or order, and may make any order the VTE could have made.

Under the Local Government Finance Act 1992, sections 1 and 4, council tax is payable in respect of dwellings (other than exempt dwellings). Listing Officers must compile and maintain a valuation list showing each dwelling which is situated in a billing authority’s area (sections 22 and 23).

Section 3(2) defines a dwelling as any property which (a) would have come within the definition of hereditament in section 115(1) General Rate Act 1967 and (b) is not in a non-domestic rating list.

As a general rule, for rating purposes, a hereditament is a unit of property which is self-contained and within the same curtilage, and occupied by the same person (Woolway v Mazars [2015] UKSC 53).

At the appeal, the Listing Officer conceded that the upper and lower floors at 9-11 Ebenezer Road now comprised a single hereditament (prior to Mr and Mrs Mooney’s adaptations they had been listed as two separate hereditaments). The VTE found that they were within the same curtilage and in single occupation, and so formed a single domestic hereditament.

A single domestic hereditament is treated as a single dwelling, for the purpose of council tax, unless it is treated as two or more dwellings pursuant to subsection 3(5) and the Council Tax (Chargeable Dwellings) Order 1992 (‘the Chargeable Dwellings Order’).

Article 3 of the Chargeable Dwellings Order provides:

“….. where a single property contains more than one self contained unit, for the purposes of Part I of the Act, 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.”

Article 2 provides:

““single property” means property which would, apart from this Order, be one dwelling within the meaning of section 3 of the Act;”

““self contained unit” means a building or part of a building which has been constructed or adapted for use as separate living accommodation.”

It was common ground before me that the application of the legislative test in articles 2 and 3 was a matter of fact and judgment for the specialist tribunal. Sullivan J. said in Clement v Bryant [2003] EWHC 422 (Admin), at [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 -----it has correctly directed itself as a matter of law.”

In Ramdhun v Valuation Tribunal of England [2014] EWHC 946 Admin, Haddon-Cave J. said, at [20], that “absent a patent error of law or findings of fact which simply cannot be justified on the evidence, the High Court will not interfere”. At [28], he set out the well-known principles governing appeals from statutory tribunals, which were helpfully summarised by the Upper Tribunal in Ramsay v Commissioners of HM Revenue and Customs[2013] UKUT 0226 (TCC), at [48]:

“(1)

If the case contains anything which on its face is an error of law and which bears upon the determination, that is an error of law (Edwards v Bairstow and another [1956] AC 14, per Lord Radcliffe at p 3).

(2)

A pure finding of fact may be set aside as an error of law if it is found without any evidence or upon a view of the facts which could not reasonably be entertained (Edwards v Bairstow, per Viscount Simonds at p 29).

(3)

An error of law may arise if 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 (Edwards v Bairstow, per Lord Radcliffe, op cit.)

(4)

It is all too easy for a so-called question of law to become no more than a disguised attack on findings of fact which must be accepted by the courts. The nature of the factual enquiry which an appellate court can undertake is different from that undertaken by the Tribunal of fact. The question is: was there evidence before the Tribunal which was sufficient to support the finding which it made? In other words, was the finding one which the Tribunal was entitled to make? (Georgiou v Customs and Excise Commissioners [1996] STC 463, per Evans LJ at p 476).

(5)

For a question of law to arise in those circumstances, the appellant must first identify the finding which is challenged; secondly, show that it is significant in relation to the conclusion; thirdly, identify the evidence, if any, which was relevant to that finding; and fourthly, show that finding, on the basis of that evidence, was one which the Tribunal was not entitled to make. What is not permitted is a roving selection of the evidence coupled with a general assertion that the tribunal's conclusion was against the weight of the evidence and was therefore wrong (Georgiou, Per Evans LJ, op cit.)

(6)

An appeal court should be slow to interfere with a multi-factorial assessment based on a number of primary facts, or a value judgment. Where the application of a legal standard involves no question of principle, but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation. Where a decision involves the application of a not altogether precise legal standard to a combination of features of varying importance, this will fall within the class of case in which an appellate court should not reverse a judge's decision unless he has erred in principle (Proctor & Gamble UK v Revenue and Customs Commissioners [2009] STC 1990, per Jacobs LJ at [9]-[10]; Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416, per Lord Hoffman at p 2423).

(7)

Where the case is concerned with an appeal from a specialist Tribunal, particular deference is to be given to such tribunals, for Parliament has entrusted them, with all their specialist experience, to be the primary decision maker. Those tribunals are alone the judges of the facts. Their decisions should be respected unless it is quite clear they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently (AH (Sudan) v Secretary of State for the Home Department [2008] AC 678, per Baroness Hale at [30]).”

I was referred to the following authorities on the definition of “self contained unit” in article 2 of the Chargeable Dwellings Order: Williams v Royal National Institute for the Blind [2003] EWHC 1308 (Admin); Coleman v Rotsztein [2003] EWHC 1057 (Admin); Beasley v National Council of YMCAs [2000] R.A. 429;Clement v Bryant [2003] EWHC 422 (Admin); Jorgensen v Gomperts [2006] EWHC Admin 1885; Corkish v Wright [2014] EWHC 237 (Admin); McColl v Listing Officer [2001] EWHC 712 (Admin); Daniels (Listing Officer) v Aristides [2006] EWHC 3052 (Admin); Batty v Burfoot [1995] R.A. 299; Butterfield v Ulm (1997) 73 P. & C.R. 289.

In Clement v Bryant, Sullivan J. said, at [8]:

“… 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.”

In Coleman v Rotsztein, Sullivan J. described the statutory test in the following terms, at [4]-[5]:

“Mr Morshead’s short submission is …. one is concerned with what has physically been constructed on the ground (an objective or “bricks and mortar” approach) and not with the subjective intention of the builder. In short, the words “for use as separate living accommodation” do not mean “intended by the builder for use as separate living accommodation”. They mean “capable of use as separate living accommodation”. Or, as the matter was put by Ognall J. on page 306 of Batty v Burfoot [1995] RA 299, “physically amenable to use as separate living accommodation”……In my judgment, Mr Morshead’s submission is correct.”

In Corkish v Wright, Popplewell J. agreed (at [5]), that the intention behind the construction or adaptation was irrelevant; the test was addressed to the result of the building work, not its purpose. However, he added:

“The question is whether the effect of the construction or adaptation is such as to make the relevant building or part of a building reasonably suitable for use as separate living accommodation. I prefer the expression “reasonably suitable” for such use to “capable” of such use, because it makes clear that what matters is its fitness for that purpose by reference to contemporary standards of what is reasonable, not merely whether it might conceivably be used for such purpose however remote the possibility.”

During the course of submissions in this case, it appeared to me that the Listing Officer was giving the phrases “capable of use” or “reasonably suitable for use” a broader meaning than the legislative wording “constructed or adapted for use” when she argued that, since the utility room in the lower ground floor had a sink and space for a microwave “it could be classed as a kitchen” and “therefore the lower ground floor had all the ingredients to be a separate self contained unit” (D [13]). In effect, she was submitting how the lower ground floor could have been differently constructed or adapted, and disregarding how it was actually constructed or adapted for use. The focus has to be on the physical characteristics of the building as presently constructed and adapted for use. So, for example, if a family with a multi-storey town house convert the lower ground floor into a large open plan kitchen-dining room, the fact that another owner could have converted the same space into a self-contained flat with a bedroom, bathroom, kitchen and sitting room would not bring it within the definition of article 3.

In Corkishv Wright, Popplewell J. expressed concern about the potential narrowness of the “bricks and mortar” phrase, saying, at [5]:

“The question is to be answered by reference to the physical characteristics of the building. This is sometimes referred to as a “bricks and mortar test”, but the epithet does not accurately capture the wide range of physical characteristics which may be of relevance including services and fixtures….”

I agree with Popplewell J.’s approach. In my judgment, the “physical characteristics of the building” is a more apt description than “bricks and mortar”. I draw support from the fact that “physical characteristics of the building” was the term adopted by the Court of Appeal in Hayes v Humberside Valuation Tribunal [1998] RA 377, when interpreting regulation 2 of the Council Tax (Liability for Owners) Regulations 1992 which provides that a dwelling was within Band C for the purpose of those regulations if it “was originally constructed or subsequently adapted for occupation by persons who do not constitute a single household”. This test is similar to the one in Article 2. Millet LJ said:

“In my judgment, the question for the Tribunal under para (a) is whether the dwelling was originally constructed or afterwards physically adapted so as to make it fit for occupation for persons who do not constitute a single household…. The question turns on the physical characteristics of the building, as constructed or adapted not on the intention with which or the purpose for which it was originally constructed or afterwards adapted. The question is one of fact and degree for the Tribunal.” (emphasis added)

Before me, the Listing Officer’s initial submission was that, when applying the legislative test, the property had to be assessed as if it had been stripped back to the bare “bricks and mortar”, thus disregarding internal layout, fittings and services. In my judgment, that submission adopted too literal an approach to the “bricks and mortar” test, and did not give effect to the legislative intention of ascertaining how the property had actually been constructed or adapted for use, which is a more sophisticated question than asking how an empty shell of a building could be constructed or adapted for use. The physical characteristics of the building include physical facilities installed for essential living functions such as cooking, washing and laundry.

Other cases have considered the position in relation to cooking facilities. Mr Wilcox (counsel for Mrs Mooney) relied upon a passage in the judgment of Kenneth Parker QC (sitting as a deputy high court judge) in Jorgensen (LO) v Gomperts which he submitted was particularly relevant to the issues raised in this case:

“22.

I do see considerable force in a rather weaker version of this argument which Mr Fookes also deployed. He submits that whether a part of a building constituted separate living accommodation required close scrutiny of the precise physical characteristics of the building. He argued, for example, that nowadays in certain particular circumstances no reasonable person would regard a part of a building as constituting separate living accommodation if nothing had been done of a physical nature to provide facilities for cooking. Drawing on some examples from his own experience, he contended that in certain situations it would be absurd to treat a particular area as constituting separate living accommodation by reason only that an owner or occupier had made it possible to use a small microwave oven therein.

23.

Mr Fookes readily accepted that there could be no hard and fast rules in this area, but submitted that if it was contended in a specific case, for example, that the building had everything, including a kitchen, for separate accommodation, the Tribunal must consider, having regard to the particular circumstances of the case, what it was said there was that physically constituted such a facility. In my judgment, Mr Fookes is right on this issue, for the reasons that he advanced. The Tribunal should consider whether, having regard to the particular circumstances of the case, the physical characteristics of the building do constitute separate living accommodation.

24.

Mr Buley … did not really dissent on this question. He submitted that there was here something physically present sufficient to constitute kitchen facilities, namely, the presence of a sink unit. However, it seems to me that an evaluation of a matter of that kind is pre-eminently for the Tribunal to make, not for this court.”

Mr Donmall referred me to Daniels v Aristides in which Davis J. agreed (at [27]) with the view expressed in Jorgensen that cooking facilities may or may not be decisive; it will all depend on the circumstances of the particular case. In Daniels, the owner’s removal of the cooker and cooker point from the kitchen in a garden studio, followed by a request to aggregate the studio with the main house, was held by the Tribunal to be a “minor consideration” on the facts of that case, and so the High Court concluded that the studio ought to have been treated as a self-contained unit.

In my judgment, the relevant physical characteristics of the building in this case included, in addition to the external structure:

It is apparent from the list above that the VTE was entitled, and indeed required, to consider the physical characteristics of the whole house, not just the lower ground floor. In Corkishv Wright, Popplewell J. said, at [5]:

“If what is being considered is part of a building, the physical characteristics to be considered include those of the remainder of the building as well as the part being considered.”

This approach was confirmed by Mitting J. in Williams v RNIB, at [22] – [24]:

“…. when “part of a building” is being considered, the question is whether that part has been constructed or adapted for use as separate living accommodation. That question should be answered in the light of all the objective circumstances, including the use or uses for which the remainder of the building was constructed ….. If in the light of those objective circumstances, the relevant part of the building was constructed for use as separate living accommodation …., it is a self contained unit….”

The potential relevance of shared facilities in the remainder of the building was also accepted by Sullivan J. in Beasley v National Council of YMCAS, at [14]:

“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 communal 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….”

Applying those principles to this case, I consider that the VTE was entitled to take into account the fact that the lower ground floor held the communal laundry facilities for the whole house.

I accept the Respondent’s submission that physical facilities for communal use are not the same as the existence of family/communal life which was considered irrelevant by Sullivan J. in Clement v Bryant, at [12] and Ognall J. in Batty v Burfoot, at [308].

Although the manner in which the building is being used by particular occupiers is clearly not the legislative test (see Clement v Bryant at [8], supra), evidence of actual use may properly be considered. In Corkish v Wright, Popplewell J. gave the example of actual use as a self-contained unit informing a decision whether that part was adapted for use as separate living accommodation (at [26]). In Hayes v Humberside Valuation Tribunal [1997] RA 236 (see paragraph 30 above), Dyson J. (as he then was) accepted that whilst “it is legally irrelevant to enquire whether the dwelling is in fact in multi-occupation … the existence of certain indicia of multi-occupation may be evidentially relevant to the question whether the dwelling is in fact suitable for occupation for persons who do not constitute a single household”.

Thus, in my view, it was not impermissible for the VTE to have regard to the evidence that the house was in use as a single household, whose sole kitchen facilities were on the ground floor and sole laundry facilities on the lower ground floor. The key question was whether the panel went on to apply the correct legislative test, namely, had the building been “constructed or adapted for use as separate living accommodation”. This focuses on the use for which the building has been physically constructed or adapted, not the way in which the occupants were actually using it. Although the Listing Officer submitted that any reference to “use” was impermissible, relying on Jorgensen (LO) v Gomperts at [15] “intention and use …. are not relevant”, I consider that the Listing Officer’s submission cannot be correct, since the term “use” is expressly included in the legislative test and ought not to be disregarded.

I do not accept the Listing Officer’s submission that the VTE erred in law in taking into account the evidence that there were major restrictions on changes to the construction and layout of the building because it was a Grade II listed building. In my view, this was a potentially relevant part of the evidential background which the panel was entitled to take into account when examining the physical characteristics of the building and asking itself the question whether the building had been “constructed or adapted for use as separate living accommodation”.

In my judgment, on a fair reading of the decision, the members of the panel did correctly direct themselves in law. They set out the legislative provisions fully, correctly summarised the legal principles and referred to the case law. They said:

“10.

In making their submission, the appellants stated that it was their intention to occupy the whole of 9 – 11 Ebenezer Road as one dwelling. They had adapted the premises to achieve this. However, the Panel were referred to the case law presented by the LO which made clear that intention, actual or prospective, is not relevant. Rather it is an objective, physical, ‘bricks and mortar test’ that must be applied (Jorgensen (LO) v Gomperts [2006] EWHC (Admin) 1885 [2006] RA 300. Access to a flat through the hall, landing and stairs of the house does not prevent there being two self-contained units (McColl v Listing Officer [2001] RA 342). The Panel also noted that in the case of R (on the application of Coleman (LO) v Rotsztein [2003] RA 152, the absence of separate services did not prevent there being a self-contained unit.”

“14.

The Panel, having heard and considered the evidence and having been advised on matters of law, concluded that the lower ground floor was not a separate unit of accommodation. In reaching this decision, the Panel disregarded the intentions of the appellants and focussed on the application of the objective ‘bricks and mortar’ test.”

“17.

Therefore having regard to the legislative definition of ‘self-contained unit’, case law and considering the physical characteristics of the whole of 9-11 Ebenezer Road the Panel were not persuaded that the dwelling contained two separate self-contained units.”

In my judgment, the VTE was entitled to conclude, on the evidence before it, that the way in which the building had been adapted for use, by installing laundry facilities for the whole house in the utility room, and kitchen facilities for the whole house on the ground floor, meant that the utility room was not available for separate and exclusive use as a kitchen, as part of a separate self-contained unit on the lower ground floor. This was a multi-factorial exercise of fact-finding and judgment by a specialist tribunal with which this court should be slow to interfere. Although the VTE accepted that, as a matter of fact, food could be prepared in the utility room as there was a sink and a microwave could be plugged in, this was merely one factor, among several, which they did not find to be determinative.

The conduct of this appeal was to some extent hampered by the failure of the VTE to set out the evidence and factual findings in detail. There was no transcript of the hearing. Therefore I considered Mr Mooney’s speaking note from the hearing supplemented by his witness statement. The Listing Officer did not dispute the accuracy of his evidence. I declined to receive in evidence from the Listing Officer a brochure for a washing machine/tumble dryer as this was not before the VTE, though I indicated that I had judicial knowledge of these products, and the physical installations which they require. I have had to infer the same knowledge on the part of the VTE, and also that they took these considerations into account. Although this was somewhat unsatisfactory, Mr Wilcox reminded me that VTE decisions are directed at the parties to the appeal and so are written on the assumption that the parties are aware of the evidence adduced and the issues raised at the hearing. In Corkish v Wright, Popplewell J. advised that “decisions of lay administrative tribunals should be interpreted with a degree of benevolence … such decisions should not be construed as if they were statutes or court judgments, nor subjected to pedantic exegesis” at [12].

I am entirely satisfied that the VTE did not misdirect itself in law and, on the evidence, its conclusion was a reasonable one. In the circumstances, I do not consider it would be appropriate to set aside or remit the decision merely because the evidence and factual findings were not fully recorded in the decision.

For these reasons, the appeal is dismissed.