Okon v The London Borough of Lewisham

There are before the Court three appeals against decisions of the Valuation Tribunal for England in respect of liability on the part of the Appellant, Ms. Okon, for council tax in respect of three properties. Those properties are:

The Tribunal dealt with each of the properties separately, and there was a differently constituted Tribunal who dealt with 298 Southend Lane from that which dealt with both 298A Southend Lane and 18 Hillbrow Road. The amounts at stake are relatively modest. In order to get an impression as to the amounts at stake in these appeals, I asked the Respondent to provide me with the amounts which it claims are outstanding and affected by these appeals for the periods of council tax in question. It informed me through counsel that the amounts (on its case: I make no findings as to the actual amounts due if these appeals fail) are:

There are three separate appeals, one in respect of each decision relating to each of the three properties. Although Ms. Sara Cockerill Q.C., sitting as a Deputy High Court Judge, ordered that the appeals in respect of 298 and 298A Southend Lane should be dealt with together but separately from that in respect of 18 Hillbrow Road, after submissions to the list office, the three appeals were listed to be heard by the same judge, the Southend Lane appeals on the first of two days, and the Hillbrow Road appeal on the following day.

Before me, both parties were content for all three appeals to be heard together, an approach which I accepted. Having now heard all three appeals, it seems to me that that approach is the most convenient course, a course reflected in the fact that this judgment relates to all three appeals.

The relevant statute is the Local Government Finance Act 1992.

Section 1 provides:

“(1)

As regards the financial year beginning in 1993 and subsequent financial years, each billing authority shall, in accordance with this Part, levy and collect a tax, to be called council tax, which shall be payable in respect of dwellings situated in its area.

(2)

In this Part “billing authority” means –

(a)

in relation to England, a district council or London borough council…”

Section 6 provides:

“(1)

The person who is liable to pay council tax in respect of any chargeable dwelling and any day is the person who falls within the first paragraph of subsection (2) below to apply, taking paragraph (a) of that subsection first, paragraph (b) next, and so on.

(2)

A person falls within this subsection in relation to any chargeable dwelling and any day if, on that day –

(a)

he is a resident of the dwelling and has a freehold interest in the whole or any part of it;

(b)

he is such a resident and has a leasehold interest in the whole or any part of the dwelling which is not inferior to another such interest held by another such resident;

(c)

he is both such a resident and a statutory, secure or introductory tenant of the whole or any part of the dwelling;

(d)

he is such a resident and has a contractual licence to occupy the whole or any part of the dwelling;

(e)

he is such a resident; or

(f)

he is the owner of the dwelling.”

…

“(5)

In this Part, unless the context otherwise requires –

i.

“owner”, in relation to any dwelling, means the person as regards whom the following conditions are fulfilled –

ii.

he has a material interest in the whole or any part of the dwelling; and

iii.

at least part of the dwelling or, as the case may be, of the part concerned is not subject to a material interest inferior to his interest;

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

Thus, Section 6 provides a “hierarchy” of selection as to who is liable for council tax. At the top of the hierarchy is a freehold owner occupier: at the bottom is a non-occupier owner. The intention is, for obvious fiscal reasons, that there should always be some person or persons liable to pay council tax (subject to exceptions which are presently irrelevant).

However, buildings in multiple occupancy (and certain other residential buildings such as care homes) present particular practical problems, and are the subject of special provisions. Section 8 provides:

“(1)

Subsections (3) and (4) below shall have effect in substitution for section 6 …. 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 …. 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.”

Pursuant to the powers conferred by Section 8, the Secretary of State for the Environment made The Council Tax (Liability for Owners) Regulations 1992, which provides by Regulation 2:

“Houses in multiple occupation, etc

Class C

a dwelling which

(a)

was originally constructed or subsequently adapted for occupation by persons who do not constitute a single household; or

(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.”

Thus, where a dwelling is in multiple occupation it is the owner who is liable for the council tax, and the section 6 hierarchy is irrelevant.

It is a separate matter for the owner how he or she gathers in from those resident in a dwelling in multiple occupation contributions to that owner’s council tax liability.

The Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 make provision for appeals to and from Valuation Tribunals in council tax matters.

Regulation 17 provides:

“Evidence and submissions

(1)

The VTE may give directions as to –

(a)

issues on which it requires evidence or submissions;

(b)

the nature of the evidence or submissions it requires;”

…

“(2)

The VTE may –

(a)

admit evidence whether or not the evidence would be admissible in a civil trial in England …”

Regulation 37 requires the VTE panel hearing an appeal to give reasons for its decision.

Regulation 40 provides a procedure for a party to seek a review by the VTE President in certain circumstances, including where there has been procedural irregularity in the proceedings.

Regulation 43 provides for an appeal to the High Court on a question of law. I return below to the scope of this right of appeal.

In the three volumes of papers prepared on behalf of the Appellant for the purposes of the hearing of the appeals in this Court there is a very substantial amount of material relating to a Statutory Demand issued by the Respondent which in due course led to bankruptcy proceedings.

In my judgment those proceedings have very little relevance to any of the issues before this Court, other than by way of general background, and most of the material in the bundles arising out of those proceedings is wholly irrelevant.

However, because some reliance has been placed by Ms. Bailey on behalf of Ms. Okon and also (to a lesser extent) by Mr. Gunaratna on behalf of the Respondent on what happened in respect of the statutory demand, and because those proceedings appear to be a significant part of the reason why a dispute about some £14,000 of council tax has occupied three days of Tribunal time and two days of hearing time in this Court, it is right to give some brief explanation of what went on.

The Respondent’s initial attempts to enforce its claims for what it said was due by way of Council tax on the three properties appear to have involved obtaining a substantial number of liability orders from the Greenwich and Bromley Magistrates’ Courts. There are disputes about the extent to which Ms. Okon was aware of the original demands for council tax or of the liability orders, but I do not need to resolve those disputes.

On the 6^th October 2014 a process server, Carol Ann Holm, attended at 18 Hillbrow Road and posted a statutory demand through the letterbox.

That demand was for £14,097.59 in respect of 18 Hillbrow Road, 298 Southend Lane, and another part of 18 Hillbrow Road referred to as 18A Hillbrow Road. Nothing arises on this appeal in respect of 18A Hillbrow Road and accordingly I am not invited to make any findings with respect to 18A Hillbrow Road.

I will return later to Ms. Okon’s response both over the telephone and in writing to the statutory demand. For present purposes it suffices to say that Ms. Okon did not pay the sum demanded.

The Respondent then commenced bankruptcy proceedings.

On the 2^nd June 2015 a bankruptcy order was made in the Appellant’s absence by District Judge Bishop. The Appellant had instructed counsel to attend, but she suffered delays in her journey to court, and Counsel’s message about the said delays was not passed to District Judge Bishop, resulting in the proceedings being heard in the absence of Ms. Okon or her legal representative.

An application to set aside the bankruptcy order was heard by District Judge Bishop on the 9^th June 2015, but was unsuccessful, the District Judge taking the view that the Appellant did not have a sufficient defence to the claim for council tax.

The Appellant appealed. The appeal was heard by Mr. Robin Hollington Q.C., sitting as a Deputy High Court Judge, on the 9^th and 10^th February 2016. Judgment was handed down on the 18^th April 2016. The appeal was successful with the consequence that the bankruptcy order was set aside and the bankruptcy petition was relisted for hearing. However there were some important provisions in the order setting aside the bankruptcy order:

Ms. Okon had attempted to resolve matters through the magistrates’ court. That was procedurally unsuccessful.

Ms. Okon then continued to progress her appeal in the Valuation Tribunal. On Ms. Okon’s case, there appear to have been some hiccups along the way with the administration in the Tribunal , but eventually the appeal in respect of 298 Southend Lane came on for hearing on the 2^nd November 2016.

As explained below, Ms. Okon’s appeal in respect of the Valuation Tribunal’s decision on 298 Southend Lane is in the main a complaint about the procedure before the Tribunal.

This Court is hampered in assessing that complaint because there is no evidence, properly so called, of what happened before the Tribunal.

As I understand the position, Ms. Bailey, who (as I have already indicated) represents Ms. Okon before me, also represented Ms. Okon in the bankruptcy proceedings and at the hearings before the Valuation Tribunal. She told me that the reason that there is no evidence in the form of a witness statement about what happened at the hearing before the Valuation Tribunal on the 2^nd November is that she was the only person who could give that evidence, and that to give that evidence would conflict with her role as counsel.

It is, of course, right that it is generally inappropriate to act as counsel and to be a witness in the same proceedings, however that would not have been an impediment to Ms. Bailey providing a witness statement in these proceedings and another person appearing as advocate in this Court.

In the event, there is no witness statement, but Ms. Bailey has provided a record of what she says happened at the hearing both in the Grounds of Appeal and in her Skeleton Argument on these appeals. Before setting out what is said in those documents it is necessary to explain the issues which were before the Tribunal.

Before the commencement of the hearing on the 2^nd November, the Respondent provided a Case Summary. This identified the key issue: “Ms. Okon maintains that the property has been tenanted from 25 October 2013 by Jose Marcos Rodrigues who is a true tenant”.

There is no dispute that this was the issue for determination by the Tribunal in respect of 298 Southend Lane.

There was also no dispute before me that the Tribunal was correct to say in paragraph 60 of its Decision that the onus was upon Ms. Okon to show that the Respondent’s decision was wrong.

The Case Summary set out the background as follows:

“Ms. Okon purchased the property on 13 March 2008 and states that she resided at this property from 13/3/2008 – 7/8/2010. This is reflected in council tax records and is not disputed. Ms. Okon made payments totalling £1,945.13, leaving a balance outstanding of £1,649.68.

The property was tenanted for the period 7 August 2010 to 10 September 2013. This is not disputed.

Ms. Okon, as the landlord, was registered as liable to pay the council tax from 10 September 2013. Her address, as recorded in council tax records was 18 Hillbrow Road. No correspondence was received from the landlord or any possible tenants. The billing and recovery process continued with no response from Ms. Okon until 8 August 2014, when a statutory demand had been served at her address.

A tenancy agreement for Jose Marcos Rodrigues commencing 25 October 2013 was provided on 11 September 2014. As the period required backdating, proof of rental income was requested. Ms. Okon refused to provide this on the grounds that the tenancy agreements were sufficient proof of tenancy.”

The Case Summary then set out in extenso the sequence of events as perceived by the Respondent, supported by documents by which the Respondent showed that sequence of events, and then concluded with the following:

“During the recovery process at Ms. Okon’s stated address at 18 Hillbrow Road, involving reminders, summonses and bailiff action, no notification of tenancies at 298 Southend Lane was received. The tenancy agreement for Jose Marcos Rodriques was not provided until 11 September 2014.

The Council maintains that Jose Marcos Rodriques is not a tenant but is Ms. Okon’s agent who facilitates the finding of tenants and collection of rent on her behalf, thus allowing her to keep a distance from the overcrowded property.

Notwithstanding, in order to allow Ms. Okon an opportunity to prove otherwise, a request was made for proof of rental income from Mr. Rodrigues, in the form of bank statement or entries from HMRC income tax returns.

Ms. Okon chose not to provide the requested documentation.

Lewisham Environmental Health officers inspected the property on 3 March 2015 and found correspondence from Ms. Okon as the Landlord and Owner. The letters were not addressed to Mr. Rodrigues but addressed to “Dear All” and “Dear Occupiers”, implying that she was aware there was more than one tenant.

The Council maintains that this is further evidence that she is the true landlord, and therefore, liable to pay the council tax.

The property in question was subject to a rogue landlords documentary and was shown to be a house of multiple occupation, which casts further doubt on Ms. Okon’s claim.

The Council has acted responsibly by requesting further proof of the alleged tenancy. In order that records are correctly updated, it is customary to request further evidence before registering tenants for historic periods. It is, therefore, reasonable to request proof of rental income, as shown on bank statements or entries in HMRC tax returns.”

In my judgment, the Case Summary showed clearly that the issue before the tribunal was whether or not there was a genuine letting of the whole of 298 Southend Lane to Mr. Rodrigues. It also showed that the Respondent’s case was based upon the documents submitted by it rather than any eye witness evidence.

That this was how the Tribunal also viewed the issues before it is clear from paragraphs 7 to 9 of the Decision:

“(7)

The issue in dispute concerned who was the liable person for the council tax in respect of 298 Southend Lane, Catford, London SE6 3LW, the appeal property, with effect from 25 October 2013.

(8)

The Appellant argued that she was not the liable person because she had leased the whole of the appeal property to Mr. Jose Marcos Rodrigues on an assured shorthold tenancy for the period in dispute.

(9)

The Billing Authority (BA) maintained that the Appellant was liable as from the evidence and information provided, it did not accept that Mr. Jose Marcos Rodrigues held a relevant material interest in the property that was inferior to the Appellant’s interest.”

Before the hearing, the Appellant had requested an adjournment, a request that was rejected by the President of the Valuation Tribunal for England. This request was repeated at the hearing but was again rejected. However the Tribunal, with the parties’ agreement, directed that the Respondent should present its case first.

The Respondent was represented at the hearing by Mr. Sayer, an enforcement officer. He gave evidence before the Tribunal and was cross-examined by Ms. Bailey. It is what happened during that cross-examination which is at the heart of the appeal in respect of 298 Southend Lane.

The Grounds for Appeal allege:

“(4)

The Tribunal conducted the hearing in a manner which no reasonable Tribunal would have conducted the hearing. For example, the Tribunal stressed many, many times that they were not interested in hearing about or seeing the underlying papers and then proceeded to indicate in the Judgment that they were not provided with certain information.

(5)

The Tribunal explained to the Respondent’s witness at the beginning of their questions to him that if he made no attack upon the validity of the tenancy agreement, then the Claimant would succeed in her appeal. The Respondent’s witness had not made such an attack notwithstanding no less than three hours’ worth of cross-examination. Upon hearing the same, and upon having the same explained to him in such stark and simple terms, the Respondent’s witness changed his entire evidence with regards to the validity of the tenancy agreement raising points which he had not raised before.

(6)

The Tribunal applied the case of Irving Brown and Daughter v Smith (Valuation Officer) (RA/421/1993) without ever inviting submissions on the content of the same.

(7)

The Tribunal refused to grant an adjournment even though it was clear that the Appellant had been provided with the Respondent’s papers within thirteen days of the said hearing, such timescale being unacceptable in light of the complex nature of the matter.

(8)

The Tribunal reached decisions which no reasonable Tribunal would have reached when faced with the material before them.”

Ms. Bailey’s skeleton argument sets out the following:

“(27)

During the course of the hearing which took place on 2 November 2016, questions were posited to Mr. Sayer. Following the repeated requests of the Tribunal, those questions were limited to the documents which Mr. Sayer had provided to the Tribunal.

(28)

During his answers to questions, Mr. Sayer was keen to stress that he did not challenge the Tenancy Agreement on its face and that he was not asserting that the Four Bedroom Flat comprised of multiple occupation. Mr. Sayer was questioned by Counsel for the Appellant for about three hours and he did not deviate from this response at all.

(29)

Accordingly, against the aforesaid background the Appellant submits that there was no basis for doubting the authenticity and the genuineness of the Tenancy Agreement of the Tenancy Agreement between the Appellant and Mr. Marcos Rodrigues.

(30)

Firstly, the Respondent’s servant or agent had no real or genuine reason to dispute the authenticity of the Tenancy Agreement between the Appellant and Mr. Marcos Rodrigues in respect of the Four Bedroom Flat.

(31)

During the course of cross examination, Mr. Sayer stated that there was not anything which appeared to him on the face of the document which suggested that the tenancy agreement was not real and genuine. Mr. Sayer also confirmed that he was not attacking the agreement and that he confirmed that the former address of Mr. Marcos Rodrigues had been substantiated and the fact that Mr. Marcos Rodrigues had resided at the address had been confirmed also.”

…

“(34)

Having dispensed with all the rational arguments, namely was the agreement strange on its face, did the former address exist and did Mr. Marcos Rodrigues exist, all of which yielded responses in favour of the Appellant, namely Mr. Sayer confirmed that the agreement seemed to be real on its face, that the agreement was properly formulated, that the former address existed and that Mr. Marcos Rodrigues had lived there, all that was left to Mr. Sayer were irrational and unsubstantiated arguments, such as his gut feeling.

(35)

The reference to irrational arguments did not appear until the questioning by counsel for the Respondent was at an end. Indeed, it was not until the Tribunal Chairman first explained to Mr. Sayer that if he did not challenge the authenticity of the Tenancy Agreement, then the Appellant might be deemed to be correct, then Mr. Sayer said that he thought the Tenancy Agreement was not genuine.

(36)

In my submission, the question, as posed by the Chairman, had the effect of modifying Mr. Sayer’s position, as it became clear to Mr. Sayer that if he maintained the position that he had maintained throughout the entire day, then he was faced with the prospect of losing, as set out in the Chair’s opening segment of the question, and of course, Mr. Sayer did not wish to lose and therefore his stance was changed.

(37)

By contrast, when asked questions for about three hours by counsel for the Appellant, throughout most of the day, Mr. Sayer’s answers made it plain that he did not challenge the authenticity of the Tenancy Agreement on its face…”

The central point, that the question asked by the Tribunal caused Mr. Sayer to alter his evidence, is repeated in several places in the documentation before me and was repeated by Ms. Bailey in her oral submissions in this Court.

The only reference in the Tribunal’s decision to the cross-examination is in its final paragraph:

“(62)

The Panel consider that the following matters should be part of this decision. The Panel was disappointed that the Appellant’s legal representative’s questioning of the Respondent’s evidence took significantly more time than the time the Respondent had taken to present their case. The Panel had to repeatedly remind the Appellant’s legal representative that questions could only be based on the Respondent’s evidence.”

In her oral submissions to the Court, Ms. Bailey pointed to the absence of any reference in the Tribunal’s decision to the change in Mr. Sayer’s evidence and said that the Tribunal in its decision was “trying to hide that chapter of the hearing” and then later that the Tribunal was trying to sweep matters under the carpet.

These are serious allegations to make against the members of the Valuation Tribunal. Such serious allegations should only be made with the greatest care and on the basis of clear evidence. In some cases where the hearing was recorded the evidence might come from a transcript of proceedings, but no transcript has been made available in this Court.

If not through a transcript, the proper way to evidence such serious complaints would be through a witness statement setting out clearly what happened, which could then be the subject of rebuttal evidence and, in an appropriate case, cross-examination. Because Ms. Bailey has continued to act as counsel, that course has not been followed.

The lack of a proper evidential basis for the complaint would probably have been sufficient in itself for me to reject this ground of appeal. However, there are further reasons for rejecting it.

Firstly, I am very doubtful if the complaint is properly described as being an appeal on a question of law. I accept that there can be cases where the conduct of a Court or Tribunal is of such a nature that it can be said that the Court or Tribunal has ceased to exercise its judicial function. Such a case of conduct on the part of a County Court Judge which was such that the Court of Appeal held that the judge conducting the trial failed to discharge his judicial function was The Mayor and Burgesses of the London Borough of Southwark v Kofi-Adu [2006] EWCA Civ. 281, which was cited to me by Ms. Bailey. But the bar in such a case is set very high indeed, and in my judgment Ms. Bailey fell a long way short of clearing that bar.

In my view, even accepting as though it were evidence Ms. Bailey’s record of what happened, the question asked of Mr. Sayer by the Tribunal was in no way inappropriate. If in response Mr. Sayer changed his evidence, that was a matter for the Tribunal to take into account in weighing his evidence.

Secondly, at no point in its Decision did the Tribunal rely upon Mr. Sayer’s evidence. This is unsurprising, given that he had no relevant direct evidence to give other than by way of presentation of the documentation which had been put forward in support of the Case Summary.

Thirdly, the Case Summary had set out clearly the basis for the Respondent’s position, which was that the alleged lease to Mr. Rodrigues was not a valid or genuine tenancy. This was not a suggestion only elicited by the Tribunal’s questioning of Mr. Sayer, which appears to be Ms. Bailey’s suggestion. In any event, quite how far Mr. Sayer was departing from that part of the Respondent’s case before the Tribunal asked the offending question is impossible to assess with any confidence without any transcript or note of questions and answers.

Fourthly, there is no basis whatsoever in the material before me to support the suggestion that the Tribunal was trying to hide what went on at the hearing or to sweep matters under the carpet.

Accordingly, I reject the suggestion that the appeal in respect of 298 Southend Lane should be allowed because of the manner in which the hearing was conducted on the 2^nd November 2016.

I would comment before moving on from what happened on the 2^nd November that it is perhaps unsurprising that the Tribunal was displeased with cross-examination for three hours of a witness who had no relevant direct evidence to give in a case involving a dispute (on the latest figures given to me – see paragraph 2 above) as to £2,480.87 of council tax where the decision principally turned upon the inferences to be drawn from documentary evidence.

The case did not finish on the 2^nd November: there was an adjournment to the 21^st November when the case resumed. There is no specific complaint about the conduct of the proceedings on the 21^st November, but Ms. Bailey in effect suggests that by then the Tribunal had turned against her, not least because by then Ms. Bailey had put in writing in a skeleton argument her complaints about how the evidence had come out on the day of hearing.

It may well be that this attack on the manner in which the evidence had come out went down badly with the Tribunal when it reassembled for the second day: however given that I have rejected the complaints about what happened on the 2^nd November, there is nothing further to say about what happened on the 21^st November.

I should also record that Ms. Bailey’s skeleton argument appeared to accuse Mr. Sayer of racism, but on the morning of the first day before me Ms. Bailey made it absolutely clear that it was no part of her submissions that either Mr. Sayer or the Tribunal had been guilty of racism. In those circumstances it was not necessary for Mr. Gunaratna to pursue an application to adduce evidence from Mr. Sayer refuting such an allegation.

As I have said, the principal ground of the appeal in respect of 298 Southend Lane concerned the way in which Mr. Sayer’s evidence emerged: however as the extract from the Grounds for Appeal set out at paragraph 45 above show, that was not the only ground relied upon.

Ground 6 contends that the Tribunal applied the case of Irving Brown and Daughter v Smith without inviting submissions on the content of that case.

This ground was not developed before me, and indeed, as I have recorded at paragraph 30 above, there was no dispute before me that the Tribunal was correct to say in paragraph 60 of its Decision that the onus was upon Ms. Okon to show that the Respondent’s decision was wrong, which is the effect of the decision in Irving Brown and Daughter v Smith. Accordingly this ground of appeal fails.

Next, in paragraph 7 of the Grounds for Appeal complaint is made that the Tribunal did not grant the adjournment requested. This is a hopeless suggestion: the grant or refusal of a request for an adjournment is a matter falling full square within a Tribunal’s procedural discretion. In any event, in my judgment the complaint that a period of thirteen days was insufficient for the Appellant to consider the Respondent’s papers is wholly unrealistic.

Ground 8 complains that “the Tribunal reached decisions which no reasonable Tribunal would have reached when faced with the material before them”.

In responding to this Mr. Gunaratna drew my attention to the decision of the Court of Appeal in Hayes v Humberside Valuation Tribunal, Kingston Upon Hull City Council [1997] RA 236, CA; [1997] WL 1105561 as support for the proposition that where the issue before the Tribunal was one of fact, an appeal court would only intervene if the decision of the Tribunal was perverse or plainly perverse.

I accept that that decision sets out the basis upon which I must consider the appeal in respect of 298 Southend Lane.

Applying that authority, it is irrelevant whether I would have reached the same decision on the material before the Tribunal.

In my judgment there was ample material on which the Tribunal could come to the conclusion that it reached.

In this case the Tribunal was faced with a relatively simple factual issue upon which the burden of proof rested upon the Appellant. The Appellant relied upon a tenancy agreement with Mr. Marcos Rodrigues. The Appellant chose, as was her right, not to be present and not to give evidence in person.

The Tribunal considered the agreement put forward, observed that the date of the agreement was later than the day on which it was said that the tenancy commenced, and then commented at paragraph 34:

“The Panel observed that the inconsistencies in the dates needed an explanation. Why is the tenancy agreement dated after the date on which the tenancy supposedly commenced? Why would rent be paid before the date on which the tenancy agreement was signed? If rent payments were due on the 25^th of each month i.e. the commencement date, why was there a payment made on 6^th December 2013? The Appellant provided no details of the days on which the rent was agreed to be paid or the way in which it was agreed to be paid (see paragraphs below). A fundamental element of any tenancy agreements were in the opinion of the Panel are the rent payment dates and the normal method of payment be it standing order, direct debit, cheque or cash. Rent is usually payable in advance. What the Appellant’s evidence seemed to establish was that contrary to the requirements of the tenancy agreement rent payments were made in a variety of ways and dates and put simply it did not make sense. The Appellant’s Witness statements did not provide the answers.”

The grammar in that passage went adrift in the fifth sentence, but the meaning is clear.

The Tribunal then continued to analyse in detail the evidence which the Appellant had placed before it, concluding that that evidence raised numerous questions which might have been answered had the Appellant chosen to give oral evidence, but which in the absence of such evidence remained unanswered.

The Tribunal concluded that the Appellant had not discharged the burden of proof which was upon her of establishing that there had been a valid tenancy to Mr. Marcos Rodrigues.

In my judgment, there was ample material upon which it could come to that conclusion, and its decision can not be described as perverse.

As already noted, in reaching that conclusion it was not necessary for the Tribunal to rely upon the evidence of Mr. Sayer, and it did not do so.

For the above reasons the appeal in respect of 298 Southend Lane is dismissed.

As set out above, 298A Southend Lane is the Rear Garden Flat at 298 Southend Lane, and is a separate hereditament from the four bedroom flat which has so far been under consideration in this judgment.

The appeal in respect of 298A Southend Lane was considered by a separate panel from that considering 298 Southend Lane.

Again the Respondent provided a Case Summary. This started by defining the issue as follows:

“Ms. Okon maintains that the property has been tenanted from 04/05/12 to 17/07/2013 and from 20/04/2014 to an unspecified date. It is now accepted that the period 04/05/2012 to 17/07/2013 was a genuine tenancy and is no longer disputed.”

Ms. Okon’s case was that the tenancy from April 2014 was to Mr. Jose Rodrigues, whom she said was a different person from Mr. Marcos Rodrigues.

The Respondent set out the background as follows:

“Ms Okon purchased the property on 13 March 2008. At some point in time the single dwelling was split into 3 self-contained flats without planning permission.

Several tenancy agreements with ambiguous addresses relating to Southend Lane were received, prompting further investigation of the property. A council tax investigator visited the property on 5 July 2010. A letter was sent to the owner on 3 October 2012 requesting further information. There is no reply on record.

The property was split by the Valuation Office Agency on 18 March 2013, effective from 28 June 2011. It is now accepted that the property was tenanted for the period 4 May 2012 to 17 July 2013 by Miss Odette Yaboue. This is not disputed.

Ms Okon, as the landlord, was originally registered as liable to pay the council tax from 28 June 2011. Her address, as recorded in council tax records was 18 Hillbrow Road. No correspondence was received from the landlord or any possible tenants. The billing and recovery process continued with no response from Ms. Okon until 8 August 2014, when a statutory demand had been served at her address.

Tenancy agreements for Odette Yoboue and for Jose Marcos Rodrigues were provided on 11 September 2014. As the period required backdating, proof of rental income was requested. Ms Okon refused to provide this on the grounds that the tenancy agreements were sufficient proof of tenancy.”

After setting out the Sequence of Events, the Case Summary concluded:

“During the recovery process at Ms. Okon’s stated address of 18 Hillbrow Road, involving reminders, summonses and a notification of court decision, no notification of tenancies for Flat A at 298 Southend Lane was received. The tenancy agreement for Jose Marcos Rodrigues was not provided until 11 September 2014 after receipt of a statutory demand.

Ms Okon is held liable for the period 28 June 2011-04 May 2012. No tenancy agreements have been received for this period.

The council also holds Ms Okon liable for the period from 17 July 2013 to date, on the grounds that the tenancy agreement, purporting to commence on 24 April 2014 for Jose Marcos Rodrigues is not a genuine tenancy and that it is produced at a later date than stated.

Notwithstanding, in order to allow Ms. Okon an opportunity to prove otherwise, a request was made for proof of rental income from Mr. Rodrigues, in the form of bank statements or entries from HMRC income tax returns. It was incumbent upon the Council to corroborate the information provided and to request further information from Ms Okon, who is the person in possession of that information.

Ms Okon has chosen not to provide the requested information to date as confirmed in her email dated 22 September 2014.

The Council has a duty to ensure that its records are accurate and has acted responsibly by requesting further proof of the alleged tenancy. In order that records are correctly updated, it is customary to request further evidence before registering tenants for historic periods. It is, therefore, reasonable to request proof of rental income, as shown on bank statements or entries in HMRC tax returns.

The Council maintains that Ms. Okon should be held liable for Council Tax under Regulation 6(f) of the Legislation, in the absence of any credible evidence to prove otherwise.

The Council respectfully requests that the Tribunal dismiss this appeal.”

The first panel had produced its decision on 298 Southend Lane on the 15^th December 2016, so this was available to the second panel which convened to consider 298A Southend Lane on the 12^th January 2017.

On this occasion there was no oral evidence adduced by either party.

The only part of the matters taking up the Valuation Tribunal’s consideration which is now relevant related to the Appellant’s case that from the 24^th April 2014 298A Southend Lane was let to Mr. Jose Marcos Rodriques.

The Tribunal’s conclusion in paragraph 33 was as follows:

“Again having regard to [all the] evidence presented to it especially taking note of the previous VTE decision (appeal no: 5690M189315/084C) and given the fact that the Panel was presented with conflicting information and the lack of any satisfactory explanation on some of the evidence presented the Panel came to the conclusion, on the balance of probabilities and the finding of fact that the Appellant had not established that the tenancy agreement in the name of Mr. Jose Marcos Rodrigues was authentic. Therefore from 24 April 2014 in line with Section 6 of the LGFA 1992 the Appellant is liable for the council tax.”

The reference to the previous VTE decision is to the 298 Southend Lane decision of the first panel.

The first point taken by the Appellant is that because the first panel decision was flawed, the second panel decision relying upon that prior decision cannot stand.

As I have rejected the appeal in respect of the 298 Southend Lane decision, this ground of appeal against the 298A Southend Lane decision fails.

The Appellant contends in the alternative that the second panel erred in relying upon the first panel’s conclusions, rather than reaching its own conclusions on the matters considered by the first panel.

In answer to this contention, Mr. Gunaratna argues that the Appellant was bound by issue estoppel in respect of matters decided between the very same parties by the earlier Valuation Tribunal panel. Ms. Bailey contended that there was no scope in this case for the application of that doctrine. I asked both counsel to provide me with any authority which they believed would assist me on that question. As requested Mr. Gunarantna provided me with certain authorities, whilst Ms. Bailey not only referred me to authorities, but also provided some short written submissions.

In support of his submission, Mr. Gunaratna referred me to the decision of the Valuation Tribunal for England in Imantalab-Kordmahale v Harrow London Borough Council([2013] R.V.R. 266), which suggests that in certain cases there can be res judicata arising out of a previous decision of the Valuation Tribunal. That decision needs to be read together with two decisions to which he also referred me, one of the Court of Appeal, Commissioners of Inland Revenue v Sneath ([1932] 2 K.B. 362), and one of the House of Lords, Society of Medical Officers of Health v Hope ([1960] A.C. 551), which suggest that the scope of the doctrine of res judicata in respect of tribunal decisions may be somewhat circumscribed. In my judgment, the doctrine would only apply where there is close alignment not only of the parties but also of the factual or legal issues determined in the first tribunal decision with those in the second decision.

Whatever the full scope of the doctrine in respect of Valuation Tribunal decisions, in my view in this case the second panel was not bound by the decision of the first panel. All that the first panel decided was that it was not satisfied that there was a lease of 298 Southend Lane to Mr. Marcos Rodrigues. What the second panel had to decide was whether there was a lease of a separate hereditament to a different or allegedly different person.

However, in my view the second panel was entitled to take into account that the first panel had found that the evidence presented in respect of 298 Southend Lane was not sufficient to satisfy the burden of proof upon the Appellant. Given that the approach to evidencing the agreements adopted by the Appellant was very similar in each appeal, the second panel was entitled to adopt a consistent approach: indeed, arguably, to adopt a different approach would have required some explanation by the second panel – it is a function of the Tribunal to act consistently as between council taxpayers so that the approach to evidence in respect of one council taxpayer’s appeal is applied consistently in respect of similar evidence in another taxpayer’s appeal. That principle applies also in respect of successive appeals brought by the same taxpayer, albeit in respect of different properties.

Further, I have set out at paragraph 14 above Regulation 17 of the applicable procedural regulations. As that regulation provides, the Tribunal is not bound by the rules which would be admissible in a civil trial in England. In my view the breadth of regulation 17 permitted the second panel in this case to take into account the conclusions of the first panel, whilst not being bound by those conclusions.

As in respect of the 298 Southend Lane appeal, the question is whether the decision of the Tribunal was perverse. In my judgment it was not: there was ample material upon which the Tribunal could reach the conclusion it did.

Firstly, as in the first appeal, the evidence of rental payments by the alleged tenant was unsatisfactory.

Secondly, the Appellant’s case that the tenant of 298A was a different person from the tenant of 298 was more than a little problematical. The name was arguably the same, as the tenant of 298 was described on some of the documentation as Jose Marcos Rodrigues. The address of the tenant in each case was given as being the same address. The handwriting of the signature on each agreement shows considerable similarity at least to the non-expert eye.

In these circumstances, it cannot be said that that decision was perverse, particularly in view of the decision of the Appellant not to give oral evidence, in this second instance despite the significance placed by the first panel upon the Appellant’s failure to give oral evidence to explain the deficiencies in the evidence relating to rental payments.

The amount in dispute in respect of 18 Hillbrow Road is said by the Respondent to be £10,286.09. This is therefore the most significant of the three appeals financially, although the amount contested is still relatively small.

Once again the Case Summary prepared by the Respondent is a convenient starting point. The issues in the appeal are summarised as follows:

“Ms Okon maintains that the property is not an HMO [i.e. “House in Multiple Occupation”], she is not a resident landlord, and that her tenants should be held liable to pay the council tax.

The Council has registered Ms Okon as the charge payer from 1 April 2011, as she is a landlord with multiple tenants and/or is a resident landlord letting parts, but not the whole, of her property.

Ms Okon has requested that her tenants should be registered for the following periods:

“06/08/2010 – 05/08/2013 Tina Zill

“25/05/2013 - ? Ben Arthur and Charlotte Coyle

“30/09/2013 - ? Gerald Hayes.”

The Background section of the Case Summary said this:

“The property is owned by Ms Okon who made the purchase on 20 November 2008. Tina Zill notified the council that she was a tenant and was registered from 6 August 2010.

The Council received a further tenancy agreement for Badoo (Elisha) Odera commencing 11 March 2011. The supporting documents stated that the tenant rented rooms and shared facilities. It also confirmed that the landlords address was the same: 18 Hillbrow Road.

In light of the tenancy agreements held and the address held for the landlord, the property was deemed to be a House of Multiple Occupation (HMO) as defined under Class C, The Council Tax (Liability for Owners) Regulations 1992.

Ms. Okon wrote to the Council to dispute the start date of her liability asserting that it should commence in November and not April 2011. Ms Okon was advised that the property was an HMO with a resident landlord so no changes were made.

A further tenancy agreement was received for Prafulia Kumar for the period 31/5/2012 – 30/11/2012. This endorsed the Council’s decision regarding HMO.

Ms Okon made payments between 26 January and 19 September 2012 totalling £783.31, thus admitting the debt.

Bills were returned between between July and December 2013, purporting to come from a Kirsty Jyles. The overwritten envelope stated that they should be registered for council tax from 1 February 2012. The HMO status remained unchanged as the date overlapped other tenancy agreements.

A letter before action (pre-bankruptcy) was sent on 8 January 2014. The council tax helpline was contacted on 17 January 2014, purporting to be from a Tina Zill, advising that she is the tenant. As the property is classed as an HMO, she was asked to provide her tenancy agreement.

No further contact was made by Ms Okon until 8 August 2014 when she telephoned the Council regarding receipt of a statutory demand. She confirmed that her sole and main address in the UK was 18 Hillbrow Road.

On 11 September 2014, a letter was received from Ms. Okon, together with tenancy agreements for the disputed periods. She gave her address as 18 Hillbrow Road. Ms Okon was advised that proof of rental income would be required before any adjustments to the account could be considered. This request was refused.

Ms. Okon is held to be liable as she has rented out parts, but not the whole of her property at 18 Hillbrow Road.”

As in the other Case Summaries, a detailed Sequence of Events (here running over 4 pages) is followed by the Conclusion:

“18 Hillbrow Road (the property) is at various times, either a House of Multiple Occupation (HMO) or a dwelling with a resident landlord. Ms Okon is held liable for the Council Tax pursuant to Regulation 2 of The Council Tax (Liability for Owners) Regulations 1992 Class C or Section 6(2)(a) of The Local Government Finance Act 1992. This is on the basis that Ms Okon is the landlord with multiple tenants or is a resident landlord and has let individual parts (and not the whole) of the Property.

Ms. Okon has provided tenancy agreements, and periods of tenancy for Tina Zill, Ben Arthur & Charlotte Coyle and Gerald Hayes. It is quite clear that the dates overlap, which further confirms the Council’s claim that the property is multi-tenanted. The tenancy agreements for Badoo Odera, Prafulla Kumar and the alleged presence of Kirsty Jyles re-enforces the Council’s determination that the property has multiple occupants.

The Council maintains that Ms. Okon has been liable for the charge since 1 April 2011 when the tenancies of Tina Zill and Badoo Odera overlap. Ms. Okon also confirms that she moved into the property in November 2011 in her letter of 23 March 2012, thus confirming liability. She has yet to provide a date when she allegedly vacated the property, although she now claims to have returned to the property on 13 July 2016.

She has also failed to provide a credible alternative address. That is one where the allowance period reflects the presence of a second adult, even if that second adult is not liable, for whatever reason, to pay council tax.

It should be noted that the tenancy agreement for Tina Zill was not produced until September 2014.

Results of local enquiries by a tracing agent dated 27/05/2016 confirm that “the subject of enquiry [Ms Okon] is resident at the address”. She has, on several occasions, offered unsupported and unsubstantiated information which has led the Council to view that information as unreliable.

However, Ms Okon has been given ample opportunity to provide further evidence to support her claim that she should not be held liable for the council tax, but has chosen to refuse and cooperation in this matter.

The Council has acted responsibly by requesting further proof of her residential address and proof of rental income before any records are updated, particularly when those records are for an historic period.

It is the Council’s position that liability for Council Tax rests solely with Ms. Okon who is, and has been, letting the premises to multiple tenants who cannot be held responsible to pay, as no one tenant has exclusive control or occupation of the entire premises.”

The Case Summary was served in the first week of December 2016 in preparation for a hearing on the 12^th January 2017 before the same panel of the Valuation Tribunal as dealt with the 298A Southend Lane appeal.

The Appellant served a Third Witness Statement dated the 5^th January 2017 which dealt with 18 Hillbrow Road as well as 298 and 298A Southend Lane. In paragraph 27 of that statement Ms. Okon says in terms that she left 18 Hillbrow shortly after she moved into the same in 2011, and in paragraph 33 that thereafter she used 18 Hillbrow Road for correspondence purposes. Then at paragraph 85 she summarises her position as follows:

“I was not a resident landlord and 18 Hillbrow Road never became a house of multiple occupation. At the material times, the tenants were Tina Zill and her household, and then subsequently Gerald Hayes. After Gerald Hayes left, I returned to live at 18 Hillbrow Road, as aforesaid.”

Thus the factual assertions made by Ms. Okon were:

The Valuation tribunal heard this appeal on the 12^th January 2017 after it had heard the 298A Southend Lane appeal. As in that appeal, no oral evidence was adduced for either party. Again, Ms. Okon was not present.

On assertions (i) and (ii) set out above, the Tribunal concluded in paragraph 9 as follows:

“The Panel was also presented with a letter dated 21 March 2012 from the appellant confirming that she took up residency in the appeal property in November 2011. However, even though Miss Bailey claimed that the appellant only used the appeal property as a correspondence address, no substantive evidence was placed before the Panel to persuade it that the appellant had moved out of the appeal property. In the Panel’s opinion, it was not presented with sufficient evidence to show if the appellant had moved out and where the appellant was residing during the period in question and if her sole or main residence had changed from the appeal property to another. Therefore, on the balance of probabilities the Panel consider that the appellant’s main or sole residence from November 2011 was the appeal property.”

This conclusion was fatal to the appeal, as it would make Ms. Okon liable for council tax under Section 6(2)(a) of the Act (see paragraph 7 above), unless the property was in multiple occupation, in which case she would be so liable as a Class C property (see paragraph 10 above).

The issues of whether Dr Okon was a resident landlord and whether 18 Hillbrow Road was in multiple occupation are not entirely separable issues because Ms. Okon’s case was, in effect, “I could not have been a resident landlord because I had let the premises as a whole first to Ms. Tina Zill, and then to Mr. Gerald Hayes”.

These disputes are factual disputes in respect of which, for reasons already given, the Tribunal’s decision could only be challenged if it was perverse.

In my judgment there was ample material upon which the Tribunal could conclude that Ms. Okon was resident at 18 Hillbrow Road at all material times:

As set out above, it is not for this Court to decide what the true facts were. It is for this Court to determine only whether the Appellant has established to the satisfaction of this Court that the Tribunal’s factual conclusion was perverse, in the sense that no Tribunal could have reached the same conclusion on the evidence before it.

In my judgment, given the matters set out at paragraph 114 above, the Tribunal had ample material upon which to base its conclusion that Ms. Okon remained resident throughout the relevant period.

Because Ms. Okon’s answer to the suggestion of continued residency was in part that she had let the premises to first Ms. Tina Zill, and then to Mr. Gerald Hayes it is important to consider that part of the case, which overlaps with the argument that 18 Hillbrow Road was in multiple occupancy.

The Tribunal considered, and rejected, the suggestion that 18 Hillbrow Road was let out exclusively first to Ms. Zill, and then to Mr. Hayes. In my judgment there was ample material upon which they could do so:

For the above reasons, it cannot be sensibly suggested that the Tribunal’s decision in respect of 18 Hillbrow Road was perverse.

Accordingly the appeal in respect of 18 Hillbrow Road also must be dismissed.

Both before the Valuation Tribunal, and before this Court, there was a suggestion that if the three cases are to considered together it can be seen that the Respondent has not taken an even-handed approach towards the Appellant. As I have said, at one stage this appeared to encompass a suggestion that Mr Sayer or the Tribunal has been motivated by racism. Happily, that suggestion has not been pursued, but there is still an attack upon the Respondent and upon the Valuation Tribunal, particularly the first panel of the Tribunal.

In my view, it was necessary to look at each case on the separate facts of each case. That I have attempted to do above.

But then, in case considering the trees misses the forest, it is necessary to stand back and take an overview.

There are common aspects of all three appeals, most markedly: (1) a reluctance on the part of the Appellant to be open with documentation which it could reasonably be supposed she had in her position to make good her factual case; (2) a decision by the Appellant unexplained to the Tribunal not to attend to give oral evidence to the Tribunal; and (3) a failure to deal with documentation until the last possible moment.

Had the Tribunal considered all three appeals simultaneously it would have had to thread its way through an intricate web of unexplained factual issues, difficult enough to explain on a case by case basis, but particularly problematical if difficulty had been plied upon difficulty without any live, oral, explanation coming from the Appellant. Or, to put the point more bluntly, each of the appeals raised factual difficulties for the Appellant, but if those difficulties had been placed together in one hearing of all three appeals, then it cannot possibly be supposed that the Appellant’s chances of success overall or in any one appeal would have been improved.

For the reasons set out above, all three appeals are dismissed.