Stevenson v Rogers
| Jurisdiction | Scotland |
| Judgment Date | 15 February 1991 |
| Docket Number | No. 17. |
| Date | 15 February 1991 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Local governmentCommunity chargePersonal community chargeParty resident in one registration area during the week and another at weekendsCriteria for determining where "solely or mainly resident"Whether subjective factors relevantAbolition of Domestic Rates Etc. (Scotland) Act 1987 (cap. 47), sec. 8 (1).1
PracticeAppealAppeal from community charges registration officer to sheriffNature of sheriff's function on appealAbolition of Domestic Rates Etc. (Scotland) Act 1987 (cap. 47), sec. 29.1
Words and phrases"Solely or mainly resident"Abolition of Domestic Rates Etc. (Scotland) Act 1987 (cap. 47). sec. 8 (1).1
By notice of entry dated 30th November 1988, the respondent entered the appellant's name on the community charges register for Lothian region. The appellant appealed to the respondent in terms of sec. 16 (1) (a) of the Abolition of Domestic Rates Etc. (Scotland) Act 1987, contending that as he was resident in Liverpool during the week and in Edinburgh only at weekends, he was not "solely or mainly resident" in Lothian region in terms of sec. 8 (1) of the Act. On 3rd March 1989 the respondent refused the appeal on the ground that, as the respondent owned a house for which he claimed mortgage interest relief in Edinburgh but only rented accommodation in Liverpool, his sole or main residence was in Edinburgh and that he was, accordingly, "solely or mainly resident" in Lothian region. The appellant appealed to the sheriff in terms of sec. 16 (1) (b) of the Act. The sheriff held that as the appeal was essentially in the nature of an appeal by stated case, he could reverse the respondent's decision only if it was manifestly unreasonable and obviously wrong, and accordingly not one which he was entitled to reach, and refused the appeal.
The appellant appealed to the Court of Session, challenging the sheriff's view that the appeal was essentially one by stated case and arguing that the sheriff was entitled to reach his own view as to whether he, the appellant, was "mainly resident" in Lothian. The respondent conceded that the sheriff was not restricted to the question of whether there had been an error of law but argued that his powers as to the hearing of evidence were very limited under the legislation as it then stood and, further, that a person was "mainly resident" where his main residence was.
Held (1) that the sheriff had misapprehended the character of his jurisdiction on appeal from the registration officer and that the question he should have addressed was whether it was unreasonable in the circumstances for the respondent to reach the conclusion that the appellant was solely or mainly resident in Lothian region; and (2) that as ownership was not relevant to residence and time was the most important factor, the respondent had arrived at a decision which was unreasonable and the matter was thus at large for the sheriff to determine upon all the material facts; and appeal allowed and cause remitted to the sheriff to consider in the light of all the material facts whether the appellant was solely or mainly resident in Lothian region at any time in the financial year in question.
Observed (per Lord McCluskey) (1) that there was no reason why the sheriff, who had the right to hear evidence whether he exercised it or not, and to determine the primary facts, should not be free to determine for himself what was the correct answer to the question in issue; and (2) that in determining whether a person was "solely or mainly resident" in one of two regions, subjective factors should be examined only if the amount of time spent in each place was finely balanced.
Dr David J. D. Stevenson raised a summary application appealing against a decision of Ian M. Rogers, the community charges registration officer for Lothian Region dated 3rd March 1988, that the appellant was correctly registered in the community charges register of Lothian Region.
The parties averred inter alia that:"(COND. I). The appellant is heritable proprietor of the subjects at 22 Blacket Place, Edinburgh. The respondent is the community charges registration officer for Lothian region and has a place of business at 31 Queen Street, Edinburgh. This court accordingly has jurisdiction. There is to the knowledge of the appellant no agreement to prorogate the jurisdiction to another court. By notice of entry dated 30th November 1988, the respondent entered the appellant's name on the community charges register for the registration area of Lothian region. Appellant objected to the said entry by letter to the respondent dated 16th December 1988, which was acknowledged by the respondent on 23rd January 1989. A hearing of the appellant's objections was held by the respondent thereafter, and the respondent issued his decision thereon on 3rd March 1989. Reference is made to the said decision, the terms of which and of the preceding correspondence herein are adopted and held as repeated herein brevitatis causa. The respondent thereby found the appellant to be correctly registered at 22 Blacket Place, Edinburgh and refused appellant's appeal against such registration. (Ans. 1). Admitted. (COND. II). The appellant is aggrieved at said decision. He believes and avers that he has no sole residence, and he is mainly resident in Liverpool. Reference is made to the reasons for decision forming part of the aforesaid decision of the respondent dated 3rd March 1989. Appellant submits that while time considerations may not be the sole criteria of what is sole or main residence, these are principal criteria and should be given appropriate weight in deciding upon the facts of the case. Appellant believes and avers that the said decision is not in accordance with the established facts of the case; is unwarranted and unjustified; is contrary to principle and precedent; is perverse; and should be rescinded. Appellant submits that the respondent gave undue weight to irrelevant or less important factors such as the title to the house, mortgage relief, appellant's right to vote etc. and insufficient weight to other factors such as that the appellant works in England. In these circumstances, appellant appeals against the said decision and seeks a finding that he is not solely or mainly resident within the jurisdiction of the respondent and that he should not therefore be registered in the said community charges register. (Ans. 2). Not known and not admitted that the appellant is aggrieved at said decision. Quoad ultra denied. Explained and averred that the facts admitted or proved at the said hearing were as set out in the said reasons. The respondent's decision was, in said circumstances, neither unreasonable nor plainly wrong.Separatim in said circumstances the respondent's decision was correct. The present appeal should accordingly be refused."
The appellant pled that:"(1) The appellant not being solely or mainly resident within the registration area of Lothian region, the respondent's decision should be rescinded. (2) The appellant being mainly resident other than as found by the respondent, any entry of appellant's name in the respondent's said register should be annulled. (3) The respondent's decision being contrary to the established facts of the case, separatim contrary to the natural meaning and intent of the legislation, separatim unreasonable and oppressive, it should be rescinded. (4) There being insufficient facts and circumstances to justify the respondent's decision, it should be rescinded."
The respondent pled that:"(1) The respondent having been entitled to conclude that the appellant was mainly resident in the area of Lothian region and the decision appealed against being accordingly neither unreasonable nor plainly wrong, the appeal should be refused with expenses. (2) Separatim the respondent having correctly concluded that the appellant was mainly resident in the area of Lothian region, and the decision appealed against being accordingly correct, the appeal should be refused with expenses."
The cause called before the sheriff (R. J. D. Scott) in the sheriffdom of Lothian and Borders at Edinburgh for a hearing thereon on 1st August 1989. Eo die the sheriff made avizandum. At advising, on 3rd November 1989, the sheriff inter alia sustained the first plea-in-law for the respondent and refused the appeal.
In the note appended to his interlocutor, the sheriff set forth that:"This is an appeal under secs. 29 and 16 (1) (b) of the Abolition of Domestic Rates Etc. (Scotland) Act 1987 against the determination by the respondent of an appeal to him, under sec. 16 (1) (a) of the Act, against an entry in the community charges register. The respondent entered in the register the name and address of the appellant as a person liable to pay the personal community charge. The appeal to the respondent was heard on 16th February 1989. 3/6 of process is a transcript of verbatim notes taken at the hearing. 3/5 of process is a statement of proceedings, in relation to the appeal, in which is set forth a statement of the facts which were admitted or proved at the hearing. 3/7 of process is a letter from the respondent to the appellant intimating that his appeal had been refused. Appended to the letter is a statement of the decision and the reasons for the decision. The facts which the respondent found admitted or proved are as follows: (1) The appellant submitted a completed community charges enquiry to the registration officer, from which he had removed his own name. (2) On 30th November 1988, the registration officer issued to the appellant a notice of entry in the register for Lothian region, that notice giving details of appeal rights. (3) The appellant wrote formally to register his appeal against inclusion in the register. (4) The appellant is employed as a senior lecturer at the School of Tropical Medicine at Pembroke Place, Liverpool, where he has been based since 1972. His work takes him abroad on average six weeks...
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