Adam v Listing Officer

Neutral Citation Number: [2014] EWHC 1110 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/10396/2013 The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG Monday, 17th February 2014 B e f o r e: HIS HONOUR JUDGE JEREMY RICHARDSON QC (Sitting as a Judge of the High Court) - - - - - - - - - - - - - - Between: ZEYNAB ADAM v LISTING OFFICER - - - - - - - - - - - - - - Claimant Defendant Digital Audio Transcript of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - The Claimant appeared and was represented by Mr Robert Finnigan Mr T Bulay appeared on behalf of the Defendant - - - - - - - - - - - - - - J U D G M E N T 1. HIS HONOUR JUDGE JEREMY RICHARDSON QC: This is an appeal against a decision of the Valuation Tribunal for England (Tribunal) of 2nd July 2013, upholding a council tax banding decision of the Listing Officer of 3rd July 2012, increasing the banding from B to C on a property in Dewsbury with effect from 29th July 2012. 2. An appeal to this court may only be made on a point of law. 3. The appellant is a litigant in person. There was some confusion at the outset of the appellate process as to whether the case involved an application for judicial review or a statutory appeal. The President of the Tribunal (Professor Graham Zellick) became involved in the confusion. Since then, however, it has been made clear this is a statutory appeal, and therefore the President's observations may, in the result, be misplaced in the context of this case. 4. The appellant has asked Mr Robert Finnigan, a Welfare Rights Worker, to speak for her. I allowed that, as it was apparent that he possessed the relevant skills for the purposes of this technical appeal. I am grateful to him for his engagingly straightforward submissions. I am also grateful to Mr Tim Bulay for his very helpful submissions on behalf of the respondent. 5. The appellant is Mrs Zeynab Adam. She lives at 10 Barley Croft, Dewsbury Moor, Dewsbury WF13 3RA. That property was built in the early 1990s and consists of a three-bedroomed semi-detached house. 6. On 1st April 1993, following the advent of council tax, the property was entered in the compiled list for council tax at Band C. The appellant first became liable for paying council tax in respect of the property on 2nd November 2007. Shortly thereafter, on 18th December 2007, the Listing Officer received a proposal by the appellant to alter the council tax listing from C to B. Thereafter the property was inspected and on 15th May 2008 the Listing Officer wrote to the appellant that he would change the band to B. He invited the appellant to agree with his proposed change. 7. On 26th May 2008 the Listing Officer wrote to the appellant, notifying her that the council tax valuation list on the property was reduced to Band B with effect from 1st April 1993. Matters rested there for a number of years. The appellant paid the appropriate council tax at the Band B rate. It is not known why the reduction in banding was agreed in 2008. 8. Four years later on 3rd July 2012 the Listing Officer wrote to the appellant notifying her that the council tax valuation list on the property would be increased from Band B to Band C with effect from 29th July 2012. That decision was upheld by the Tribunal. The decision to increase was prospective and not retrospective. 9. There is now an appeal upon a point of law to this court. It is important for present purposes to refer to the decision of the Tribunal. Submissions were made on behalf of the Listing Officer by Mrs Arbuckle and Mr Finnigan represented the appellant, as he has done before this court. 10. Mrs Arbuckle made the following submissions. She confirmed the property had originally been in Band C but following an appeal it had been reduced on 26th May 2008 to Band B with effect from 1st April 1993. She went on: i. "However, following representations from other tax payers also seeking reductions from Band C to Band B and citing the appeal property the Listing Officer had reviewed the Band and could find no support for the original reduction to Band B and based on the sales of the comparable properties she had increased the property to Band C with effect from 29th July 2012." 11. Accordingly she invited the Tribunal to dismiss the appeal. 12. Mr Finnigan made alternative submissions, contending that there had been no relevant change to the circumstances of the appeal property since it was visited by the previous representative of the Listing Officer in 2008, when the property was reduced from Band C to Band B. He referred the Tribunal to a variety of location plans and a variety of other evidence as is set out in paragraph 10 of the Tribunal's decision. In essence he was endeavouring to show that there were different valuations for the various other properties in the area. 13. The Panel plainly weighed this evidence and reached the following conclusions. At paragraphs 12, 13 and 14 of the decision: i. "12. In arriving at its decision the Panel had regard to the basis of valuation for council tax and noted that the valuation band of the dwelling was based on the amount which, subject to certain assumptions, it might reasonably have been expected to fetch if it had been sold on the open market by a willing vendor on 1st April 1991. 14. The Panel therefore had regard to the sales of the comparable properties referred to by both Mrs Arbuckle and Mr Finnigan and noted that the properties referred to by Mrs Arbuckle at 6, 7 and 9 Barley Croft, 11 Spend View and 17 and 19 Mazebrook had all sold for prices between £52,500 and £56,500 in a period 8th November 1991 to 19th August 1992. The Panel found this to be compelling evidence that if the appeal property, which was almost identical to those properties had been sold at 1st April 1991 it would also have commanded a price in excess of £52,000 lower limit of Band C. In contrast the Panel noted the sales referred to by Mr Finnigan had mainly been for prices below £52,000 but those sales dated from 1996 to 1999 when the housing market had been lower and therefore were not an accurate good to prices at 1st April 1991. SMITH BERNAL WORDWAVE 15. The Panel accepted that the appeal property had been reduced from Band C to Band B in 2008 but no evidence of why the band had been reduced had been submitted. In the absence of any such evidence and in the light of the sales produced by Mrs Arbuckle, the Panel were satisfied the appeal property had been correctly included in Band C and it dismissed the appeal." 16. The basic situation stripped of much unnecessary detail is this: in 2008 the property was reduced from Band C to Band B. In 2012 the Listing Officer viewed the matter again and took the view it should in fact have been Band C and not Band B all along. It was decided henceforward (there being no power to retrospectively increase the Band) to increase the banding to C. Is this allowed in law? 17. By section 22 of the Local Government Finance Act 1992 the Listing Officer has a duty to compile and then maintain a list for the local authority in question. It is called a Valuation List. This has been interpreted by decisions of this court and the Court of Appeal as a duty to compile and maintain an accurate list. There is really no dispute about that at all. 18. This basis upon which this is compiled has been very helpfully explained in a decision of the Court of Appeal in Chilton [2008] EWCA Civ 1025. The judgment of Rix LJ is illuminating. Waller LJ and Dyson LJ (as he then was) agreed with Rix LJ. It suffices to quote paragraphs 8 and 9 of the judgment of Rix LJ to briefly reveal how a valuation is reached and the legal basis therefor: - Merryweather v Hunt & Ors i. "8. Prior to the 1988 Act, rates were payable on both non-domestic and domestic property under the General Rate Act 1967 (the '1967 Act'). The basic scheme of rateable values under the 1967 Act was common to both non-domestic and domestic property. With the failure of the community charge, the 1992 Act which introduced the council tax for the purpose of the taxation of domestic property returned to the basic scheme of valuing individual properties by a common yardstick, in this case their capital value. Council tax in England is paid according to which of eight valuation bands, fixed by the statute, an individual dwelling falls into. Thus, in essence, council tax is payable by the resident of a chargeable dwelling on an annual basis and the amount of tax is based on the valuation band against which the dwelling is entered on the valuation list. That value and thus the appropriate valuation band are determined by listing officers in accordance with valuation principles prescribed by the 1992 Act and its regulations. ii. 9. For the purpose of council tax, the valuation had to be done by reference to two dates, 1 April 1991 and 1 April 1993 (the '1991 date' and the '1993 date' respectively). The yardstick for valuation was fixed according to the open market price at which the dwelling might reasonably have been expected to SMITH BERNAL WORDWAVE have sold at the 1991 date, but the size, layout and character of the dwelling and the physical state of its locality, on the basis of which the 1991 date valuation had to be fixed, was to be taken as at the date of its actual valuation, which (broadly speaking) was in the run-up to and conventionally as at the 1993 date. In terms of the statutory language, the 1991 date valuation had to be made on the assumption that dwelling and locality were as they were at the date of actual valuation. Certain other assumptions also applied, such as that the dwelling was in a reasonable state of repair. The valuation list was then compiled on 1 April 1993 and came into effect on that day. The general effect of these provisions is that inspection and valuation are all done, within a tight time regime, in relation to the physical configuration of the dwelling and the physical state of the locality, but by reference to certain conventional yardsticks, such as a common assumption that the dwelling is in a reasonable state of repair, and, importantly, a common 'bible' of market values as of a single day, 1 April 1991." 19. Mr Finnigan has asserted where properties are on the borderline between two bands they must be individually valued. He is right to say that. But the valuation must be in accordance with the statutory regime and one way to form a judgment about an individual property is to look at comparable properties. It is plain to me that was done by the Listing Officer in this case; and, moreover, was done by the Tribunal hearing the appeal. It is to be noted the Tribunal, in respect of which an appeal is brought to this court, is an expert tribunal. This court always respects the factual analysis of an expert tribunal. There is no material before me to begin to suggest that they erred or strayed from a legitimate factual analysis of the evidence before them. 20. The real issue in this case concerns paragraph 3(1)(b)(i) of the Council Tax (Alteration of Lists and Appeals) England Regulations 2009. That paragraph provides: i. "Restrictions on alteration of valuation bands. ii. 3. (1) No alteration shall be made of a valuation Band shown in a list as applicable to any dwelling unless: iii. (b) the listing officer is satisfied that: (ii) a different valuation should have been determined by the listing officer as applicable to the dwelling." 21. I have deliberately emphasised the phrase "should have been determined". It is drafted in the past tense. SMITH BERNAL WORDWAVE 22. The import of the paragraph is, in my judgment, clear and simple: if a Listing Officer, in the exercise of his or her judgment, is of the view that a different Band should have been determined by a Listing Officer, he or she has an obligation to alter it. In other words, if it appears that a mistake was made or for some other reason the Band should have been different, then he or she has a duty to change it. It is to be noted the Listing Officer may only do that prospectively and not retrospectively. 23. Paragraph 3(1)(b)(i) plainly permits an error or mistake to be corrected prospectively not retrospectively if the Listing Officer determines that the Band should have been different. When that decision falls to be made by the Listing Officer, or on an appeal to the Tribunal, the analysis must be undertaken in accordance with the law as expressed in the statute and regulations. Reference to the concept of issue estoppel is irrelevant. Vague, or even more precise, notions of fairness are equally inappropriate. The Listing Officer and the Tribunal are required to make decisions in a fair manner based upon the statute and regulations. Plain it is in this case, the Listing Officer was of the view a mistake was made in the past to downgrade the banding for the appellant’s home. That is implicit in the language employed by Mrs Arbuckle in her submissions to the Tribunal, and, indeed, the language employed by the Tribunal. Certainly evidence was presented to reveal this property to be in Band C and not Band B. That was for the factual judgment of the Listing Officer and the Tribunal. Consequently, the Listing Officer and the Tribunal were satisfied that a different valuation band should have been determined, and that permits an alteration to be made under this paragraph of the regulations. 24. Mr Finnigan, on behalf of the appellant, has made three submissions, which I can distil in the following way. First, he asserts there is a duty to keep an accurate list. That is accepted, and I have already explained the law in that regard. He is correct. Second, he asserts that there may only be a change under this paragraph of the regulations if there is, in effect, an express confession that a mistake was made. In my judgment, that is a gloss to the wording of the regulations that is not necessary or implicit. Finally, he asserts there is an obligation to individually assess a property when its valuation may be on the borderline of one Band with another. In that regard he is correct in the way that I have explained earlier in this judgment. 25. As I indicated at the outset of this judgment Professor Graham Zellick became involved in this case when there was some confusion as to its status. In a letter, to the Administrative Court Office of 17th September 2013 he made the following observations at paragraphs 3, 4 and 5 of that letter: i. "3. The President accepts that the decision of the Tribunal is entirely unsatisfactory in that the central point that should have been considered was entirely overlooked by the Panel. ii. 4. Had the appellant applied for a review of the decision, it is likely that the President would have set the decision aside under his statutory powers. 5. The central point in this case, which now falls to be considered by the court is whether a Listing Officer who has previously agreed a banding with the SMITH BERNAL WORDWAVE council tax payer so that the originally appeal was automatically withdrawn can subsequently alter that agreed valuation even though there is no change to the property." 26. With respect to the President that, in my judgment, is not to the point. Paragraph 3(1) (b)(i) permits, as I have explained, an alteration to be made. The alteration must, of course, not be made capriciously, but based upon evidence. There was evidence in this case and the evidence reveals a mistake or error was made in the past when the agreement was reached in 2008. The fact this gave the appellant a few years of paying less council tax is a bonus for her. The simple fact is the regulatory regime permits past errors to be corrected for the future. If there are other cases where similar errors have been made in the past, the regulatory regime permits correction. Historical errors may be corrected whatever the reason for the error and providing the Listing Officer is satisfied that the Band should have been different. This is not a case where there has been unfair procedure; or the case where the appellant has acted to her detriment in reliance of anything. She has had the advantage of paying less council tax for some time. 27. In the result, in this appeal, no error of law was made by the Tribunal, nor did the Listing Officer fall into similar error. The evidential analysis in this case permitted both the Listing Officer and the Tribunal to make the band alteration. This appeal is dismissed. 28. MR BULAY: My Lord I am very grateful. Simply for your information there is no application for costs. That is something we had indicated in advance because of the history involving Professor Zellick. 29. The only other matter I mention, I suspect a judgment, my client would want to be able to have access and refer to but I think a transcript will be produced automatically, will it not? 30. HIS HONOUR JUDGE JEREMY RICHARDSON QC: It will indeed. 31. MR BULAY: I do not need to say anything more; it will be produced in due course. 32. HIS HONOUR JUDGE JEREMY RICHARDSON QC: There will be no order for costs and, as you have rightly observed, this being a final decision of this court, there is a transcript automatically. SMITH BERNAL WORDWAVE 33. MR BULAY: I am grateful my Lord. 34. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Unless there is something else, thank you very much indeed. 35. Mr Finnigan, is there anything you wish to raise? 36. MR FINNIGAN: No sir, thanks for the opportunity for putting our case. 37. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Not at all. Thank you very much indeed for explaining your case as succinctly and effectively as you did. I am very grateful to you. Mrs Adam has much for which to be grateful in the way that you have presented her case. Thank you very much indeed. Unless there is anything else? Thank you. SMITH BERNAL WORDWAVE