R (Williams) v Horsham District Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date21 January 2004
Neutral Citation[2004] EWCA Civ 39
Docket NumberC3/03/1543
Date21 January 2004

[2004] EWCA Civ 39

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

ADMINISTRATIVE COURT LIST

(MR JUSTICE MCCOMBE)

Royal Courts of Justice

Strand

London, WC2A 2LL

Before:

The Master of The Rolls

(Lord Phillips of Worth Matravers)

Lord Justice Buxton

Lord Justice Keene

C3/03/1543

Mr Martin Williams
Claimant/Respondent
and
Horsham District Council
Defendant/Appellant

MR JONATHAN EASTON (Instructed by Legal Dept. Horsham District Council, West Sussex, RH12 1RL) appeared on behalf of the Appellant

The Respondent did not appear and was not represented.

1

LORD PHILLIPS, MR: This is the judgment of the court. Introduction

2

The respondent, Mr Williams, owns cottage called Pump Cottage, Henfield, West Sussex where he now lives in retirement with his wife. Between January 1993 and August 1996 Mr Williams was employed as a housemaster by Hurstpierpoint College ("the College") . The College provided him with a house at Hurstpierpoint called The Oaks. Mr Williams and his wife lived at The Oaks during this period. They stayed on there, by agreement with the College, until July 1997. By a decision dated 11 December 2002 the West Sussex Valuation Tribunal held that Mr Williams had to pay Council Tax in respect of Pump Cottage on the grounds that he and his wife had their sole or main residence there during this period. It is Mr Williams' contention that he and his wife had their main residence at The Oaks.

3

By a judgment dated 26 June 2003, McCombe J allowed an appeal by Mr Williams against the Tribunal's decision. He held that the Tribunal had erred in their decision in that they had wrongly treated themselves as bound by case precedent to treat two of the relevant factors that they considered as of overriding importance. He remitted the case to the Tribunal for reconsideration.

4

The Horsham District Council now appeals against McCombe J's judgment with permission granted by Sedley LJ on 15 August 2003. The Council contends that the weight to be attached to the relevant factors was a matter for the Tribunal and it was not open to McCombe J to set aside the Tribunal's decision on the ground that disproportionate weight had been attached to two of those factors.

The Facts

5

Before Mr and Mrs Williams moved to The Oaks, they were registered with a doctor and dentist in the neighbourhood of Pump Cottage. They remained so registered after their move. They were on the electoral roll for Pump Cottage, but also had their names placed on the roll for The Oaks. The College provided The Oaks part furnished. Mr and Mrs Williams moved most of their belongings and furniture from Pump Cottage to the Oaks. They left some furniture at Pump Cottage in case they should choose to stay there in the holidays. In fact they did not do so. Neither of them spent as much as a night in Pump Cottage during the relevant period, although Mr Williams paid periodic visits to it for the purpose of maintenance and in order to mow the lawn. When Mr Williams' employment as housemaster came to an end in August 1996, the College agreed that he and his wife could remain in residence at The Oaks until July the following year but made a charge for accommodation and Council Tax.

6

The attitude of the College at the time that Mr Williams took up his appointment as housemaster is indicated by this passage in a letter dated 10 November 1992 written by the Bursar to all members of staff living in college accommodation following discussions with Mid-Sussex District Council:

"The College will be obliged to declare that the school accommodation which you occupy is your 'main home' for Council Tax purposes. This means that if you own a house elsewhere in the UK you may be liable to pay Council Tax thereon. If your house is let the tenant will be responsible for the Council Tax; if it is empty then you will qualify for a 50% discount on the full Council Tax for the property."

7

The provision of accommodation at The Oaks was part of Mr Williams' contractual emoluments and was treated as such for tax purposes. The same is true of Council Tax which the College paid in full on behalf of Mr Williams.

8

While employed by the College, Mr Williams continued to pay Council Tax, without discount, to Horsham Council. On 3 September 1998, however, he wrote to the Council asking for a rebate for the period between January 1993 and July 1997 on the ground that Pump Cottage was unoccupied while he and his wife were living at The Oaks. The Council responded asserting that Pump Cottage fell to be considered as the Williams' sole or main residence, and that The Oaks should he considered to be their second home so that a discount of 50 per cent should be recovered from the Mid-Sussex District Council in respect of Council Tax paid on the latter property.

9

Mid-Sussex Council was then made aware of the situation and refunded to the College 50 per cent of the Council Tax paid in respect of The Oaks while Mr and Mrs Williams were in residence.

The statutory provisions

10

Section 6 of the Local Government Finance Act ("the Act") provides:

"6 Persons liable to pay council tax.

(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."

11

The critical issue before the Tribunal was whether Mr Williams was liable to pay Council Tax in respect of Pump Cottage as a resident with a freehold interest in it under section 6(1) (a), or as the owner under section 6(1) (f) . This was critical by reason of the provision for discount made by the following subsection of section 11 of the Act:

"(2) Subject to section 12 below, the amount of council tax payable in respect of any chargeable dwelling and any day shall be subject to a discount equal to twice the appropriate percentage of that amount if on that day—

(a) there is no resident of the dwelling;

….

(3) In this section …. 'the appropriate percentage' means 25 per cent."

12

A resident is defined by section 6(5) of the Act as follows:

"'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."

The Tribunal's decision

13

The Tribunal attached importance to three decisions, which is it is necessary briefly to summarise. Bradford Metropolitan City Council v Anderton [1991] RA 45 concerned liability for Community Charge payable in respect of a person's sole or main residence.

14

The charge payer was a merchant seaman who spent most of his life at sea. About 90 days a year, when he was on leave, he lived with his wife in respect of which the Charge was levied. His wife lived there all the time. The rest of the time he lived at sea aboard the "Atlantic Conveyor". The Tribunal held that this vessel was his main residence. On appeal, Hutchinson J considered a number of authorities, which led him to the conclusion that a merchant ship plying the high seas could not constitute a person's residence. At page 59 Hutchinson J held that, even if this was not correct, the cases establish that:

"….the respondent's sole or main residence is the house, because that is where his home is, where he has his settled and usual abode, which he leaves only when the exigencies of his occupation compel him to go to sea, for 'temporary or occasional absences of long or short duration'."

15

Ward v Kingston upon Hull City Council [1993] RA 71 is another Community Charge case. In that case the husband and wife jointly owned a house in Hull where she lived. He, however, spent most of the year living in tied accommodation in Saudi Arabia where he worked, returning to Hull when on leave. The Tribunal, in holding that the house in Hull was his sole or main residence, attached importance to the fact that he had security of tenure in Hull, but not in Saudi Arabia. The issue on appeal was whether this was Wednesbury unreasonable. Auld J held that it was not. After referring to Anderton's case, he said at page 80:

"There is the obvious distinction between that case and this in that there the judge was concerned with the occupation by the applicant of a ship, when he was working as a seaman at sea, and of his matrimonial home when he was ashore. Here the case concerns two houses on dry land, but, apart from that distinction, there are a number of common factors. The most...

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