Some notes on council tax liability and bedroom tax Upper Tribunal cases.
Council tax – how do you go about setting aside and/or appealing a council tax liability order? It turns out to be far from straightforward (you might already have known this. I didn’t!). In Okon v London Borough Of Lewisham [2016] EWHC 864 (Ch) – quite astonishingly, an appeal against a making of a bankruptcy order – Mr. Robin Hollington QC addressed the issue. The bankruptcy petition was founded on a number of council tax liability orders and the efforts of Ms Okon to set aside those orders were at issue.
Ms O’s first step was to apply to the Magistrates court to set aside the orders. This was rejected by letter, with an incorrect reference to R. (on the application of Brighton & Hove City Council) v. Hamdan [2004] EWHC 1800 (Admin). Mr. Robin Hollington QC goes on to find the following:
in Hamdan the court did not find that the magistrates court itself could and should, on an application to set aside a liability order, go into the substantive merits of the case: on the contrary, it seems to me more likely that it was there being assumed (without deciding the point) that the magistrates court could and should not do so, going no further than satisfying itself that there was an arguable case on the merits before setting aside the liability order on the above ground. What the letter did not say, as I find to be the law, is that the magistrates court had no jurisdiction to go into the merits of the liability order on an application to set it aside and that the aggrieved council tax payer had also to appeal to the Valuation Tribunal if he or she wished the merits to be investigated.
This was brought home to Ms O at the hearing of a further liability order, where the Magistrates accepted Lewisham’s argument that
the court had no power to go into the substantive merits: it only had power to consider whether the Respondent had followed the correct procedure in making the application for Liability Orders and that a challenge to the merits of the liability order had to be raised by way of an appeal to the Valuation Tribunal.
So, it would appear that any challenge to the merits of a liability order must be by way of an appeal to the Valuation Tribunal, via section 16 of Local Government Finance Act 1992 and reg. 57(1) of The Council Tax (Liability for Owners) Regulations 1992.
Reg 57(1) provides that any “matter which could be the subject of an appeal under section 16 of the Act may not be raised in proceedings under this part (i.e. Part VI: Enforcement which includes reg. 34 (Application for liability order)])”
The court held that reg. 57(1) actually barred a person from rising substantive merit issues before the Magistrates on proceedings for a domestic council tax liability order. Any challenge to a liability order on the issue of merits, rather than issues of procedural correctness, is via appeal to the Valuation Tribunal. Magistrates Courts cn only deal with set aside applications on procedural error or defects.
Bedroom Tax. There have been a couple of Upper Tribunal (Admin) decisions on bedroom tax cases.
The first one is 2016 UKUT 164 AAC from Feb 2016, but just added.
This was a ‘room size’ case, where the First Tier Tribunal had found:
the room in question had a square footage of about 63 sq. ft. with a sloping ceiling that reduced its usable space considerably; that it was used by the claimant’s son (who was born in 1995) as a bedroom until about 2010, but that such use was unsatisfactory since the son had a cabin bunk bed on a sleeping platform; and that the room in question was not a bedroom because it had been used as a store room since the claimant’s son had left. It further found that the room in question would not qualify as a bedroom for the purposes of the provisions relating to the size of a bedroom for an adult in houses in multiple occupation.
Since then, the Upper Tribunal decision in Nelson had been given (our note here). The UT was prepared to set aside the FTT decision on the basis that it was wrongly made on the basis of Nelson – the FTT had wrongly placed emphasis on current use, wrongly only considered whether the room was adequate for an adult rather than any of those listed in paragraphs (5) and (6) of regulation B13 (including a child), and wrongly used overcrowding legislation to construe reg B13.
However, the claimant made further argument on the room size issue,
that Nelson did not take into account the provisions of the (English) Housing Act 2004, the Housing Health and Safety Rating System established under that Act or the guidance given by LACORS (Local Authorities Coordinators of Regulatory Services) insofar as they dealt with space and overcrowding, and hence, that Nelson should not be followed.
The UT found that there was no mention of specific room size in HA 2004 or the operating guidance for HHSRS and overcrowding decisions under this could only be on actual overcrowding. The LACORS guidance was just that – guidance on best practice, with no statutory effect. Lastly provisions relating to HMOs have no effect where the property is not an HMO.
The FTT decision was overturned. But rather than make its own decision, the UT remitted the case to the FTT for a fresh decision, because:
I am concerned, however, especially given the room’s sloping ceiling, that all the factors referred to in paragraph 31 of Nelson may not have been properly considered. I therefore remit this case to a differently constituted tribunal for determination: it should consider those factors, bearing in mind that the room should be capable of accommodating a single adult bed, a bedside table and somewhere to store clothes (see paragraph 33 of Nelson), as well as providing space for dressing and undressing.
This is thoroughly in accordance with Nelson.
Despite the matter being remitted to the FTT for a fresh decision, it appears that the claimant, who is in person, is seeking permission to appeal to the court of appeal.
The broader points to take from this decision are twofold. Firstly that no extra-statutory or statutory prescriptions on bedroom sizes will have any purchase on reg B13 meaning of bedroom, unless they directly (and nationally) prescribe a minimum bedroom size. None do to my knowledge.
Secondly, the Nelson principles of the basic requirements for identifying an elephant (sorry, bedroom) are re-stated here. The room has to be physically capable of reasonable use as a bedroom. There is no set minimum size, per se, though obviously some rooms will be too small. It is all a question of the facts of that room. Many councils and social landlords don’t appear to have grasped that yet…
Meanwhile, Joe Halewood and I may disagree from time to time on the interpretation of Tribunal decisions (including the one above) but Joe has put up a photo of a part of an as yet not otherwise available Upper Tribunal decision, CH/2512/2015. Joe’s post is here and I’m happy to agree on its meaning. The relevant passage is:
As to the Appellant’s daughter and her previous use of the room, the mere fact that she did use the room for sleeping purposes does not mean that the room, on that account alone, falls to be treated as a bedroom.
This is, of course, quite right – as in the other UT decision above (and in Nelson), use of the room by the tenant’s household is not determinative of the status of the room. This cuts both ways. Actual use to sleep in doesn’t necessarily make a room a bedroom (although we will draw a veil over the UT LHA decision in CH/140/2013 – our report). Actual use to sleep in may go to whether the room is capable of being a bedroom, but it is certainly not determinative. Joe suggests that some councils are saying that it is. If they are, they are in error.