Humphrey v Fenland District Council

This is an appeal against the decision of a valuation tribunal that the appellant, Ms Humphrey, is liable to pay Council Tax on a bungalow property at Wisbech in Cambridgeshire on the basis that she is the freehold owner of that property and was in residence at it - meaning, for the relevant purposes, that it was her sole or main residence.

Her position before the tribunal and today does not dispute that she is the freehold owner of the property, but she denies that it was her sole or main residence, or indeed that she is resident there at all. Her contention was that the property was occupied by her tenant and that she herself lived elsewhere between a property owned by her daughter and a friend of hers.

The law in relation to the availability of an appeal is contained in regulation 43 of The Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009, the relevant provisions of which are:

"43 (1) An appeal shall lie to the High Court on a question of law arising out of a decision or order which is given or made by the [valuation tribunal] on an appeal under section 16 of the 1992 Act or the [Council Tax] Regulations …"

I pause to say that this is such an appeal.

"(2)

Subject to paragraph (3), an appeal under paragraph (1) may be dismissed if it is not made within four weeks of the date on which notice is given of the decision or order that is the subject of the appeal or, in the case of a section 16 appeal, within two weeks of the date on which written reasons for the decision are given in accordance with regulation 37(6), if later."

In this case the tribunal heard the appeal on 16^th June 2017 and sent a notice of decision explaining the reasons for its decision on 10^th July, and it is accepted in Ms Humphrey's notice of appeal that she received that notice the following day, on 11^th July 2017.

The time period referred to in the regulation I have just read, therefore, runs either two weeks after that date or, at the most, four weeks after that date. If the decision of the tribunal was announced at the hearing in June with reasons following, the period would be two weeks. The best position, from Ms Humphrey's point of view, if she was not told of the reasons at the hearing (and I cannot tell from the documents before me whether she was or was not, although I am told it would be normal for the tribunal to have announced its decision with reasons to follow), would be that the period is four weeks from the date on which she received the notice of decision with the reasons; so four weeks running from 11^th July and expiring on or about 8^th August 2017.

Her appeal notice was not, however, received at the court until, it appears, 9^th January 2018. So, at its best, that was approximately five months after the date of the decision in question. It is therefore very considerably beyond the period referred to in that regulation.

In the grounds, and indeed subsequently, no explanation has been given for the lateness of filing. No request has been given for any extension of time or reasons given as to why the court should not exercise its discretion to strike out the appeal in consequence of the delay. I am told by Ms White on behalf of the council that no contact at all was received from Ms Humphrey, or from the solicitors who were acting for her at the time the appeal notice was lodged, since the date of the appeal until last week when contact was made direct with Ms Humphrey in order to seek to agree a court bundle for the hearing today. Ms Humphrey, I am told, was represented at the hearing before the tribunal. She was certainly represented by solicitors and the grounds of appeal were drafted on her behalf by a legal representative.

So the first question for me to consider is whether I ought to exercise the discretion provided for by the regulations to strike out the appeal. Ms White has referred me to two cases and provided copies of them. The first is Wode(?) v. Herefordshire Council, and the secondZafar v. London Borough of Redbridge, a decision by Dove J. She has provided me with a copy of one decision under that name. It appears there was a second case - apparently another appeal against the same decision which was dealt with later by the Administrative Court.

In the later case, which I do not have but she has read me a copy of the headnote, the court noted that the wording of the regulation is not, in terms, a time limit for making an appeal. Ordinarily, periods for appealing under the Civil Procedure Rules or elsewhere are expressed in terms of a time limit by which an appeal must be made, with, in many but not all cases, a discretionary power for the court or tribunal hearing the appeal to extend that time.

There is a considerable jurisprudence built up as to the circumstances in which the court will extend time which, in general terms, can be summarised as being that: a good reason should be shown for the extension; in particular in circumstances where a time limit has not been observed, an appellant should address the matter in terms as if it were an application for relief from sanctions; approaching the matter under the three-stage test set out in Denton, dealing with the seriousness of the breach and whether any good reason is shown for it; and emphasising the importance of compliance with the rules in order that litigation may be conducted effectively.

This provision is not set out in those terms. It provides a discretion for the court to strike out an appeal, but not in terms a time period within which an appeal should be brought. It would, in my view, be unfortunate if that difference in wording were to give rise to any substantial difference to the approach that an appeal court should take. In my view, the proper approach in order to achieve consistency between the various different regimes that apply (which is certainly desirable as a matter of principle, in my view, to be followed unless some clear reason for differentiation can be identified from the different provisions of a particular rule) is that the court should approach the matter on the basis that it will ordinarily exercise its discretion to strike out an appeal which is made after the time provided for by the regulations unless a good reason is shown, being a reason which would be accepted as being good on the basis of the jurisprudence that I have referred to dealing with the extension of other time limits by discretion.

In the present case, as I have indicated, no reason has been given at all. Ms Humphrey has not even advanced a reason today for the delay. I have sought at the beginning of the hearing to ensure that she understood the point that was being made and given her an opportunity to read the skeleton argument setting it out, but she has concentrated her submissions on her contentions as to the evidence that the tribunal heard and the conclusions that it came to on that evidence, and has not sought to put forward any reason why her grounds of appeal were not lodged until January of this year.

She has given me some information about what has passed between her and her solicitor since that date and the reasons why she is not represented now, but that, I think, could only go to whether there was any additional fault in not progressing the matter since the notice of appeal was lodged and not to any reason why the appeal was lodged as late as it was.

In my view, a delay of the sort of period that has occurred in this case is a serious breach, or equivalent to a serious breach, of a time restriction for appeal; it is a long delay in the context of the statutory provisions that are evidently intended to provide that appeal rights should be exercised promptly; and in circumstances in which decisions of tribunals such as the valuation tribunal are properly expected to be treated by the parties as final unless any appeal rights that are given are promptly exercised. The importance of that, in my view, is self-evident in cases such as this. For instance, it is important both that Council Tax payers and local authorities should know what their position is. If it is challenged before a tribunal, then both sides should know that the decision of the tribunal is final and must be applied unless the losing party, whoever that may be, exercises a right of appeal promptly.

That, in my view, would be sufficient for me to exercise my discretion to strike out this appeal, but I propose to consider the arguments that are put forward in the grounds as to the merits, including what Ms Humphrey has said to me today about them, on the basis that I do so in order to assess whether there appears to be sufficient merit in the appeal such that I might consider allowing it to proceed, notwithstanding the extent, and the unexplained extent, of the delay in pursuing it.

So for that reason I propose to refer relatively briefly to the grounds of appeal which are in the bundle as drafted by Mr Melvin of Surrey Chambers. It is important to recognise at the beginning that the appeal provided for by the regulations is an appeal on a point of law only. It is not an appeal process under which questions of fact determined by the tribunal may be reconsidered by this court or in which this court would be able to substitute its own view of the factual evidence for that of the tribunal. It is necessary to show that, in dealing with the matter, the tribunal has committed an error of law. It is in principle for the tribunal to evaluate the factual evidence before it and conclusions of fact are matters for the tribunal and not this court. It is for the tribunal to consider and weigh that evidence and matters of the weight to be given to it and whether certain evidence is to be believed or disbelieved are for the tribunal and not this court.

The issue only becomes one of law if the tribunal commits an error within the now well recognised principles of review of decisions of tribunals and public bodies, as might be the case, for instance, if it had applied the wrong legal test in considering the matter before it; if it had reached a conclusion on the facts which was perverse, in the sense that no reasonable tribunal properly instructed as to the law could have reached that conclusion on the evidence; or if it had taken account of an irrelevant consideration or failed to take account of a relevant consideration in reaching the conclusions that it did.

With that background, the first point that is made in the grounds is that it is for the local authority to prove to the requisite standard that the appellant was in residence at the property in the period concerned. The grounds do not assert that the tribunal wrongly directed itself as to the legal standard to be applied. That standard is the ordinary civil standard of the balance of probabilities. It is said that it is not for the appellant to prove that she was not resident, and that is undoubtedly correct. Insofar as the grounds go on to suggest that the tribunal approached the matter the wrong way round, in my view that is clearly wrong. The tribunal's reasons explain why the tribunal considered on the evidence that Ms Humphrey was in residence at the property. It is right to say that they go on to say that she had not demonstrated that she was not, but Ms White is correct to say that that is simply the tribunal having reached a conclusion on the evidence that Ms Humphrey was resident, but noting that the counter-evidence that she had produced failed to disprove the conclusion that would be reached from the positive evidence.

It is said that the tribunal misapplied the test set out in Williams v. Horsham District Council, which was that the matter must be approached on the basis of whether the reasonable bystander would consider on the evidence that the appellant was resident at the property or not. In my view, there is no merit in that. The tribunal approached all of the evidence on that basis and there were a considerable number of points that they regarded as indicating that the appellant was in residence, all of which, it seems to me, was relevant evidence, and the weight to be attributed to it is a matter for the tribunal and not this court.

Secondly, it is said that the tribunal could not properly conclude that the appellant had been in residence since 20^th May 2013 as being the date on which she was shown to have entered the country. In my view, there is nothing in that point either. The appellant's position is that she may have travelled across the Channel on that date, but she did not take up residence at the property on that date. But it is by no means unusual for a tribunal, or indeed the court, to have to reach findings of fact on the basis of incomplete evidence, which it does doing the best that it can on the basis of the evidence that is provided to it. In circumstances in which there was a limited amount of evidence in favour of the council's position, which is noted to have the burden of proof, and no evidence to contradict it or no evidence that was accepted as displacing that evidence, it seems to me the tribunal was perfectly entitled to reach the conclusion that it did: that the date represented by the travel information was an appropriate date to select as the start of her occupation.

The remaining points seem to me to be various different ways of expressing disagreement as to the strength of the evidence that the tribunal accepted. It is said that Ms Humphrey had provided plausible explanations for the fact that she was found at the property on two occasions when it was visited by inspectors from the council; as to why her post continued to be received at the property; why she was on the electoral roll as if resident at the property; and why her vehicles were registered at the property. But it is not, I repeat, for this court to assess the plausibility of the reasons that she gave. That was a matter for the tribunal. I see nothing in this evidence which shows that the case put up by Ms Humphrey was so strong that the tribunal could not properly reach the conclusions that it did. Accordingly there is no jurisdiction in this court to re-evaluate that evidence and, if it would have reached a different decision, to substitute the court's decision for that of the tribunal.

There is only one of these points which I think I need to refer to separately. The others, it seems to me, are all, as I say, different ways of putting the same point, which is that the appellant believes that her evidence should have been believed and the council's evidence should not have been. The one point that is referred to, as a matter of fairness, is that it is said that the tribunal declined to view a video which had been taken of one of the occasions on which the appellant was found at the property and, unfairly to the appellant, accepted a written summary of what was shown in that video that had been prepared by the council, without considering or accepting the appellant's version of the facts. What is not said in the grounds is what the appellant's version of the facts was, or why it would have made a difference to the conclusion or the evaluation that the tribunal made.

It is right, in my view, to note that reference to this video and to the statement from the council is set out in the section of the decision which notes the facts found, and that therefore does give the impression that the facts found include those stated in the summary of what is on that video that was given by the council. But that, in my view, does not show any unfairness to the appellant which might have affected the result of the hearing. The following section gives the reasons for reaching the conclusion that the tribunal did reach, and no weight is placed upon the statements that the council gave other than that it shows that on this occasion, and one other, the appellant was found physically to be at the property (which she does not deny). Thus, for instance, although the implication of the council's statement as to what was said on that occasion might be that the appellant had given an untruthful explanation as to why she was there, seeking to present herself as the cleaner of the property when that may not have been the case, it was no part of the tribunal's reasons that she had given an untruthful or incomplete explanation. The reasons note only that she was found there on two occasions and that that, in conjunction with the other circumstances and evidence that connected her to the property, led to the conclusion on the facts that it was her main residence.

Although, in my view, there might be some criticism of the tribunal for approaching the matter on the basis that it appears to have accepted what the council said about that particular occasion, it has not resulted in any unfairness to the appellant which affected the decision and it forms no reason why an appeal should be allowed at this stage.

In summary, therefore, there is, in my view, no merit in this appeal in any event and therefore a fortiori no exceptional reason why it should be allowed to proceed, being considerably after the time at which it ought to have been submitted. Accordingly, it is appropriate to strike the appeal out, and that is the order that I will make.