R (Salmon) v Feltham Magistrates Court and anor
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STADLEN |
| Judgment Date | 28 November 2008 |
| Neutral Citation | [2008] EWHC 3507 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 November 2008 |
| Docket Number | CO/8418/2007 |
[2008] EWHC 3507 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Stadlen
CO/8418/2007
The Claimant appeared in person
Mr A Choudhury (instructed by the London Borough of Hounslow) appeared on behalf of the 2nd Defendant
This is an application by Mr John Salmon for judicial review of a decision by the first defendant, the Feltham Magistrates' Court, on 17th September 2007 to make a council tax liability order against him in the sum of £1,491.83. The second defendant is the London Borough of Hounslow. The first defendant did not appear or make submissions before this court. The second defendant was represented by Mr Choudhury of counsel and Mr Salmon appeared making submissions on his own behalf.
The application arises out of the liability order dated 17th September 2007 in respect of council tax payments said to have been due for the year 2007 to 2008 on a property at 144 Wellesley Road, Chiswick, London, which is in the London Borough of Hounslow.
The relevant property has a ground floor and a first and second floor. It is common ground that the ground floor is a separate dwelling for council tax purposes and is irrelevant for the issues to be decided on this application. The claimant, Mr Salmon, is the leasehold owner of the property which forms the first and second floor, together with the staircase leading to it, the house being a three-storey Victorian conversion.
There is a long background, leading up to the order that was made, of attempts by the Council to obtain council tax payments from Mr Salmon in respect of that first and second floor property on the basis of their conclusion that, because it was property satisfying the definition of a house in multiple occupation as defined in section 2C of the Council Tax (Liability of Owners) Regulations 1992, Mr Salmon is the person liable for council tax in respect of the first and second floor flat by virtue of section 8 of the Local Government Finance Act 1992, to whose provisions I shall return.
In essence, the Council formed the view, by reference to evidence to which I shall refer, some considerable time before the year 2007/2008 that the first and second floor flat satisfied the condition of a house in multiple occupation as defined in the regulation and that for that reason Mr Salmon was the person liable to pay council tax in respect of it. That was something that Mr Salmon did not accept and there was a dispute in relation to that.
So far as the matters giving rise to the decision which is subject of this application are concerned, the relevant chronology is as follows. On 19th March 2007, the second defendant issued a council tax demand in the sum of £1,394.50 to Mr Salmon in respect of the property described as the maisonette, first and second floors, 144 Wellesley Road, Chiswick. The council tax demand notice was sent to Mr Salmon at an address in Rue de la Révolution, Séte, France, which was the address in the council records for Mr Salmon, who had lived for some time in France. The demand was in conventional form and stated:
“The reason for the bill is: your Annual Bill Demand Notice…
Amount payable by you £1394.50”
It said:
“Payment must be made as below, late payment will lead to recovery action.”
And then:
“Instalments To Be Paid By: Cash Payments Monthly
First Instalment Due on 05/04/2007
Other Instalments Due on 01/05/2007 to 01/01/2008”
And that was said to be one instalment of some £143 and nine of some £139.
On 14th May 2007 the Council sent Mr Salmon at the same address in France a reminder notice called a Council Tax Arrears Notice, which said, so far as relevant, as follows:
“Amount due to bring instalments up to date: £2828.53
If payment is not received by 21-May-2007 you will lose the right to pay by instalments and the full balance of £1394.53 will become payable. If this full balance is not paid within a further 7 days, recovery action will be taken against you: this may involve you in additional costs.”
It is not in dispute between the parties that this sum was not paid and no sum was paid. Accordingly, on 25th June 2007, a summons was issued addressed to Mr Salmon at his French address in the following terms:
“Complaint has today been made to me the undersigned by the London Borough of Hounslow that you being subject to the Council Tax made on: 06/03/07
For the year(s) commencing on: 01/04/07
Have not paid in full the sum(s) of:
Council Tax 01-APR-2007 TO 31-MAR-2008 31,394.53
Add c ourt costs incurred in the issuing of the summons £3.00
Add c ouncil costs incurred in the issuing of summons £69.30
Total £1,466.83
You are hereby summonsed to appear on Wednesday 18th 2007 at the hour of 2:00pm before the Magistrates sitting at BRENTFORD MAGISTRATES COURT, MARKET PLACE, BRENTFORD, to show cause why you have not paid the said sum. If you do not appear you will be proceeded against as if you had appeared and be dealt with according to the law.”
And it was signed by the Justices' Clerk.
There was a preliminary hearing of the Magistrates on 18th July 2007, which was adjourned, and at the adjourned hearing on 17th September 2007 the Lay Magistrates, of whom there were three, made a council tax liability order under regulation 34 of the Council (Tax Administration and Enforcement) Regulations 1992 in the sum of £1,394.53 in respect of the sum payable and outstanding, £72,30 in respect of the costs of complainant and a further £25 for costs, a total of 1,491.83. That is the order, and the decision to make it, which Mr Salmon seeks judicially to review.
Permission to make such an application was granted by Charles J on 1st November 2007. I was told in the skeleton argument by Mr Choudhury that he gave permission on the basis that it appeared that something might have “gone wrong” before the Magistrates in that they had not been provided with the full history of the matter and in particular in relation to the alleged status of the property, namely whether or not it was a house in multiple occupation. The skeleton argument continued that:
“The judge considered that the other grounds of review would not have warranted permission on their own but that permission would also be allowed in respect of them so that all matters could be dealt with at the full hearing.”
I asked Mr Salmon whether he agreed with that account of the comments made by Charles J and he said that he did. Having heard all the evidence and all the submissions, in my judgment I agree with Charles J that the other grounds of review for which permission was sought would not have warranted permission on their own and, for the reasons that I will give, the additional grounds which found favour with Charles J, at any rate to the extent of there being an arguable case such as to justify an oral hearing, are on analysis wholly without foundation.
The claimant relied in essence on four discrete grounds. First, he relied on an argument that the regulations pursuant to which the summons was brought and the order was made were so fundamentally in conflict with the primary legislation pursuant to which they were made as to be ultra vires that legislation. Second, he submitted that an offer had been made by a Ms Abela on 3rd July 2007 to pay the council tax in respect of that property and for that reason the Council had lost the right, and indeed was statutorily prohibited, from proceeding with the summons against him. Third, he submitted that the property was in fact not properly characterised as a house in multiple occupation and that the decision of the Magistrates to accept that it was was to that extent wrong and should be for that reason quashed. Fourth, he said that his rights under Article 6 of the European Convention of Human Rights had been breached in that he had been deprived both by the Magistrates' conduct of the hearing and by conduct of the Council of his right to a fair trial.
So far as the ultra vires point is concerned, the matter was put this way in his original outline of skeleton arguments by Mr Salmon. Ground 6 of the application for judicial review is in these terms:
“The said Statutory Instrument [which is a reference to the Council Tax (Administration and Enforcement) Regulations 1992] which allows for the making of a liability order before the action has fallen due under section 2 of the Local Government Finance Act 1992 creates a situation of logical absurdity and is thus outside the vires of the act.”
In his original outline of skeleton argument he said this, that there should be a declaration that the regulations are ultra vires because:
“They provide for a liability order to be made when the liability itself has not yet fallen due under section 2 of the LGFA 1992 the enabling statute which states that 'liability shall be determined on a daily basis'.
It is within the Applicant's power to change at will the future circumstances that give rise to the Council Tax liability so any liability order made in advance is therefore logically absurd.
Bankruptcy proceedings commenced by the Council in May 2007 aimed to force the sale of the applicant's property which gives rise to the liability. This means that at the time of applying for the Liability Order the Council had the specific intention of changing the circumstances to which the liability relates. The Council sought the Liability Order for the period up to 30th March 2008 in the...
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