Vandyk v Oliver
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS,LORD JUSTICE LAWTON,MR. JUSTICE MACKENNA |
| Judgment Date | 10 February 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0210-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 1975 |
[1975] EWCA Civ J0210-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The Lands Tribunal
Lord Justice Cairns
Lord Justice Lawton and
Mr. Justice Mackenna
MR.D.WIDDICOMBE, Q.C. and MR.M.HORTON (instructed by N. D. Vandyk, Esq., Solicitor, London) appeared on behalf of the Appellant (Respondent).
MR. A. FLETCHER (instructed by the Solicitor of Inland Revenue) appeared on behalf of the Respondent (Appellant).
This is an appeal from a decision of the Lands Tribunal in a rating case. It concerns a flat occupied by a solicitor, Mr. N.D. Vandyk, who at all material times has suffered from severe disability following an attack of poliomyelitis in 1947. He claims that the flat is a structure of which no account should be taken in valuing the hereditament of which it forms part. He bases this claim on Section 45 of the General Bate Act, 1967, which affords relief, inter alia, for certain structures supplied for the after-care of persons suffering from illness and for the welfare of handicapped persons. The Lands Tribunal decided in his favour. The Valuation Officer appeals to this court.
The flat is a second floor flat at 7 Addisland Court, Holland Villas Road, London, W.4. In 1968 it was in the Valuation List at a gross value of £500. On the 21st June, 1968 Mr. Vandyk made a proposal to reduce that value to nil. On the 5th October, 1971 be made a second proposal to the same effect in order to get the benefit of legislation which had been passed in the meanwhile. The Valuation Officer objected to both proposals and they went to the local Valuation Court which held that the flat as a whole should not be exempted but that relief should be granted in respect of two rooms so as to reduce the gross value to £425, Technically there were two decisions to that effect and each side appealed against each decision so that there were four appeals. They were consolidated and heard by Mr. Stuart Daniel and Mr. E.C. Strathon, members of the Lands Tribunal. They gave a single decision, in effect dismissing both appeals of the Valuation Officer and allowing both appeals of the ratepayer to the extent of reducing the gross value to £80. There was no need to differentiate between the two proposals because it was not suggested that there was any material change in the factual situation between the two dates and it was not held that the new legislation between the two dates was necessary to establish the ratepayer's case. The £80 was an agreed figure representing the residual value of the hereditament apart from the structure of the flat.
At each stage the ratepayer has claimed that if he is not entitled to relief in respect of the whole structure of the flat he is entitled to it in respect of two rooms (a bedroom and a bathroom) and the central heating. As already indicated, the local Valuation Court, while deciding against him on his overall claim, was in his favour on the two rooms. It is common ground that if on this appeal the Valuation Officer is entirely successful then the gross value of £500 is to be restored; if he is successful as to all except the central heating, then the gross value is £475; he is successful on all except the two rooms it is £425; if as to all except the central heating and the two rooms, £400. So there is no dispute about figures, the issues are issues of principle.
Section 45 of the General Rate Act, 1967 provides as follows: "In ascertaining for the purposes of section 19 of this Act the gross value of a hereditament, no account shall be taken - (a) of any structure belonging to the Minister ofHealth and supplied by that Minister or, before 31st August 1953, by the Minister of Pensions for the accommodation of an invalid chair or of any other vehicle (whether mechanically propelled or not) constructed or adapted for use by invalids or disabled persons; or (b) of any structure belonging to a local health authority or to a voluntary organisation formed for any of the purposes mentioned in section 28(1) of the National Health Service Act 1946 (which relates to the prevention of, and to the care and after-care of persons suffering from, illness) and supplied for the use of any person in pursuance of arrangements made under the said section 28(1); or (c) of any structure belonging to a local authority within the meaning of section 29 of the National Assistance Act 1948 (which relates to welfare arrangements for blind, deaf, dumb and other handicapped persons) or to such a voluntary organisation as is mentioned in section 30 of that Act and supplied for the use of any person in pursuance of arrangements made under the said section 29; or (d) of any structure which is of a kind similar to structures such as are referred to in paragraph (a), (b) or (c) of this section but does not fall within that paragraph by reason that it is owned or has been supplied otherwise than as mentioned in that paragraph".
Mr. Vandyk founds his case on paragraph (d) of that section, linked with either (b) or (c). He says that the flat was not supplied by the local authority or by a voluntary organisation but is a structure similar to what could have been so supplied for one or other of the purposes mentioned in those paragraphs and that that entitles him to relief.
Since 1947 Mr. Vandyk has been paralysed in both legs and in his left arm and has been confined to a wheelchair. He has continued to need after-care within the meaning of Section 28(1) of the National Health Services Act, 1946 and Section 12(1) of the Health Service and Public Health Act, 1968. (Section 45 of the Act of 1967 now has to be read as if for the reference to Section; 28(1) of the Act of 1946 there were substituted a reference to Section 12(1) of the Act of 1968: See Schedule 3, part 1, of the latter Act). Up to 1953 Mr. Vandyk lived with his parents. He then took a flat in Holland Villas Road, W.14, had some structural alterations done to make it more suitable for his needs and employed a housekeeper and a chauffeur, both of whom gave him special help because of his disabilities. In 1956 he married, and since then his wife has given him constant attention except when she is away from home and then he has a trained nurse to look after him. He needs somebody to help him into bed, wash him, apply ointments, etc. He and his wife have a daughter born in 1960 who lives with them. They were anxious to find a more suitable flat than the one in Holland Villas Road and it was after long search that they found their present flat, of which the special advantages were that it had wide doors (important to facilitate the movement of his chair), central heating (necessary for a person who cannot keep warm by ordinary exercise) and porters (who could assist him in and out of his car, or in awkward situations as, for example, once when he got stuck in his bath). Hesaid in evidence that he did not think he would have removed from his previous flat to his present one if he had not been an ill man.
Mr. Vandyk obtained a lease of his present flat in June, 1968 and had a number of alterations made to it in order to meet his special needs. A partition wall was removed so as to enlarge the bathroom and absorb into it an adjoining W.C. and lobby; a handle was fixed to the wall at the side of the bath and another by the W.C.; a special W.C. seat, raised above normal height, was fitted; an electric bell-push was installed in the bathroom. The level of the bathroom floor was altered to facilitate movement into and out of the bath. In his bedroom the wash-basin was altered to enable him to approach it and wash while sitting in his wheelchair. A bracket with a hanging chain and handle was placed over his bed to enable him to turn over during the night. By the bed another bell-push was installed. In the passage the plaster arris was rounded.
Evidence was given by Dr. Spencer, the consultant in charge of the intensive care and respiratory unit at St. Thomas's Hospital. He said that 30 per cent of poliomyelitis patients depended on other people for their daily care. A patient with no family would normally need to live in an institution. There were great advantages in living out, in terms of happiness, psychological adjustment and risk of infection. Warmth was important and central heating most desirable.
Evidence was also given by Mr. Large, who had contracted poliomyelitis in 1962 and who, like Mr. Vandyk, had to live in a wheelchair. He and his wife had taken a bungalow at a cost which was really beyond their means and had had alterations made to it such as a ramp to the back door, adjustments to the bathroom and W.C., central heating, reduced partitions, etc. He too was looked after by his wife.
No evidence was called for the Valuation Officer.
Now, in relation to Mr. Vandyk's claim under paragraph (b) of Section 45, it is necessary to turn to Section 28(1) of the National Health Services Act, 1946. That, as originally passed (and therefore as relevant to the 1968 proposal) provided as follows: "A local health authority may with the approval of the Minister, and to such extent as the Minister may direct shall, make arrangements for the purpose of the prevention of illness, the care of persons suffering from illness or mental defectiveness, or the after-care of such persons, but no such arrangements shall provide for the payment of money to such persons, except in so far as they may provide for the remuneration of such persons engaged in suitable work in accordance with the arrangements".
For the purposes of the 1971 proposal the corresponding provision is in Section 12(1) of the Health Service and Public Health Act, 1968 which, so far as material, reads as follows: "Subject to the next following subsection, a...
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...facility, and there is none in this case. 15 We were referred to the decision of the House of Lords in the case of Vandyk v. Oliver, (1976) Appeal Cases, 659. That case is of interest as part of the historical background to the 1978 Act, but it was concerned with a statute in quite differen......