Mayer, R (on the application of) v Epsom & Ewell Borough Council [2008] EWHC 2918 (Admin)

Case No CO/7209/2007[2008] EWHC 2918 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 10 November 2008
Strand
London WC2A 2LL
B e f o r e:
MR TIMOTHY BRENNAN QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF MAYERClaimantv
Between
EPSOM AND EWELL BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Graham Mayer appeared in person for in personMr Alun Alesbury (instructed by Epsom and Ewell Borough Council) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: This is an appeal under regulation 51(1) of the Valuation and Community Charge Tribunals Regulations 1989 (SI 1989, No 439). It lies to the High Court on a point of law only against a decision of a Valuation Tribunal hearing an appeal by Mr Graham James Mayer on 2nd July 2007. There was before that Tribunal an issue as to whether Mr Mayer, who was and is resident at 151 Thorndon Gardens, Ewell, Epsom, KT19 OQE, was liable for council tax in respect of that dwelling.[2]Under the Local Government Finance Act 1992, section 6, there is established a hierarchy of persons who may be liable to pay council tax. Under subsection (2) (omitting irrelevant possible candidates for liability) the statute reads as follows:
"(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, ... (e) he is such a resident; or (f) he is the owner of the dwelling."
[3]The issue before the Valuation Tribunal arose in the following way. Mr Mayer's mother, Mrs Peggy Winifred Mayer, had been resident at 151 Thorndon Gardens together with her son, Mr Mayer, as the family home. On a date or dates in or possibly even before 2004, Mrs Mayer, being (I infer) of advanced years, became unwell and at a date shortly before 23rd March 2006, Mrs Diana M Porter was appointed by the Court of Protection as receiver in respect of her affairs. Mrs Mayer spent a certain amount of time in hospital. It is not necessary and was not necessary for the Valuation Tribunal to record detailed findings as to the precise reasons and the precise dates. By a date in June 2004 Mrs Mayer had been discharged from hospital to one and subsequently to another residential care home.[4]The issue for the Valuation Tribunal, having regard to the statutory hierarchy in section 6(2) of the Act to which I have referred, was to decide whether Mrs Mayer was (see section 6(2)(a)) a resident of the dwelling and, if not, whether Mr Mayer was (see section 6(2)(e)) a resident of the dwelling and, if not, whether Mrs Mayer (see section 6(2)(f)) as the owner of the dwelling would be liable as the fall back candidate for liability for council tax. It was not in dispute, and Mr Mayer has confirmed to me today, that Mrs Mayer is and was the freehold owner of the premises.[5]The tribunal's decision was understandably economically expressed. It recorded Mr Mayer's contention that since June 2004 when Mrs Mayer had entered residential care her stay was only temporary, that she may return to the family home and that therefore she should be registered as the liable person for council tax. This submission was clearly based on the contention that temporary absence from her residence did not prevent her from remaining resident there. As a proposition of law that is unarguably correct. The question of course is whether it was supported by the facts.[6]The officer of the Council, who was presenting the response to the appeal on behalf of the Council, put before the Valuation Tribunal a letter from the receiver, Mrs Diana Porter dated 23rd March 2006 in which she recorded her appointment as receiver by the Court of Protection in respect of Mrs Mayer's affairs. She added in the last paragraph of that letter:
"While writing I need to advise you that Mrs Mayer has moved to a residential care home and no longer lives at 151 Thorndon Gardens which is still occupied by her son."
The Tribunal had therefore on the material which was put before them by both sides to make a finding of fact. That finding was whether in respect of the period which was under challenge before them, namely the period relevant to council tax starting with 1st April 2006, Mrs Mayer was resident at 151 Thorndon Gardens.[7]The Tribunal concluded that Mrs Mayer was no longer "resident in the appeal property" and "this is based on the following conclusions". They gave two reasons. The first reason was:
"The written confirmation from Mrs D Porter the Receiver appointed by the Court of Protection for Mrs Mayer's affairs who stated that 'Mrs Mayer had moved to a residential care home and was no longer resident in the appeal property'."
The second reason was:
"The Tribunal also notes that Mrs Mayer had been continuously in a residential care home since 2004, no substantive evidence has been presented to support the contention that she will be returning to the appeal property."
They continued:
"Therefore, having concluded that Mrs Mayer was no longer resident in the appeal property the Tribunal has to establish who the liable person for Council Tax is."
They then go on, in a manner which cannot be faulted, to set out the hierarchy of the liabilities in the Local Government Finance Act section 6(2) to which I have already referred. In the circumstances, given their finding that Mrs Mayer was no longer resident, their conclusion was inevitably that Mr Mayer was the person liable to pay the council tax under section 6(2)(e).[8]Mr Mayer, appealing to the High Court against this conclusion, recognises that the jurisdiction of the court is limited; it can only interfere with that conclusion if it contains an error of law. As he put it to me, he is not sure that there is an error of law in the decision but he wishes (after advice and discussion with advice agencies and others) to bring the matter before the Court so that it can be tidied up. He points out that the Tribunal is in his submission in error in recording that Mrs Mayer has been resident in a care home since June 2004. He makes the point, based on assertions which do not themselves find record as matters of fact in the tribunal's decision, that in fact Mrs Mayer was not resident on a long-term basis in the care home from the June 2004 date - indeed it may have been from January 2005 or even, as he recollects it, possibly from as late as January 2006.[9]In answer to that contention three points can be made. The first is that it is does not amount to an error of law for the Tribunal, having heard evidence, to make a finding of fact with which one party disagrees. Unless the conclusion is totally irrational, there is no evidence to support it, or it takes account of an irrelevant consideration, the parties and this Court are bound by the findings of fact. Second, in the absence of an error of law there is a positive finding of fact of residence in the care home since June 2004. Third, even if (which he cannot on this material) Mr Mayer were able to establish that the residence of Mrs Mayer in the care home started in January 2005 or as late as January 2006, it would make no difference at all to the outcome of the appeal before the Valuation Tribunal. The Tribunal was dealing with the issue whether Mr Mayer was liable for council tax for the period starting with 1st April 2006. That period starts at a date which post-dates the very latest of the dates put forward by Mr Mayer as possible commencement dates for Mrs Mayer's residence in the care home.[10]Accordingly, in my judgment, there is no material before me which is capable of establishing an error of law in the Valuation Tribunal's decision. On the contrary, the findings of fact are consistent with the tribunal's decision that Mr Mayer is the person liable for council tax and in those circumstances the only proper order is for me to dismiss the appeal.[11]MR ALESBURY: My Lord, I rise with some diffidence. This appeal has been brought to the High Court by Mr Mayer from the Valuation Tribunal and your Lordship has found it unmeritorious and judged against it. There has been handed to Mr Mayer a very brief summary schedule of costs. My instructing solicitors and the instructing local authority have taken the view that they were not, as it were, even going to attempt to charge any of their own officer and in-house solicitor time, but I do not know whether it is appropriate -- I am afraid I have only a handwritten one -- but I do apply for costs in respect of the sum of £2,900 plus VAT. I do not know if it is appropriate to hand this up to your Lordship? (Handed) Mr Mayer has a copy of this, covering what the council has expended on counsel's fees. I should say that I am instructed that were an order for costs to be made, which in the normal way one might reasonably expect on the resolution of an appeal like this, unsuccessfully to Mr Mayer, my instructing solicitor do tell me they would consider any matters relating to hardship and other financial difficulties which may turn out to be justified if they are put to the council. But my Lord one starts from the proposition that an inappropriate appeal has been made to the High Court which has been soundly dismissed, if I can put it like that, and as it were in that sense in the normal way I do ask for a summary order of those costs at least against Mr Mayer.[12]THE DEPUTY JUDGE: You say those costs "at least".[13]MR ALESBURY: I was merely alluding to what I mentioned before of those costs, my Lord.[14]THE DEPUTY JUDGE: Have you got the VAT figure?[15]MR ALESBURY: I will have to work it out. It will be -- I have to do long multiplication.[16]MR MAYER: I haven't got the money, unless I pay in instalments.[17]THE DEPUTY JUDGE: It is not your turn yet, Mr Mayer, but I will come to you.[18]MR ALESBURY: I think it is £507.50, my Lord.[19]THE DEPUTY JUDGE: Yes, it is.[20]MR ALESBURY: I am afraid that does demonstrate how the ubiquity of calculators have dulled the skills of long multiplication which I am sure were there once.[21]THE DEPUTY JUDGE: Yes. Mr Mayer, stand up please. The application against you is for the costs -- that is to say the legal costs of this hearing. The ordinary rule is that somebody who comes to the court and causes the other side to incur legal costs and loses ends up paying the costs. Is there anything you want to say about why I should not make an order that you pay the costs?[22]MR MAYER: Yes, very much so because, firstly, I was falsely -- firstly, the Social Care Team acted completely against everything I have been told by solicitors, I am not talking about the council tax in general, but--[23]THE DEPUTY JUDGE: Mr Mayer, let me interrupt you. First please calm down a little bit. What I am interested in hearing is your arguments about the costs of the hearing today. I am not interested, with respect, in hearing your complaints about the Social Care Team. You have brought an appeal against your liability to council tax and you have not been successful in that. The only question that I seek your submissions on is whether in those circumstances there is any reason why the ordinary rule should not apply and why you should not be ordered to pay the council's costs of coming along to the High Court with a barrister and solicitor today in order to resist the appeal which you chose to bring.[24]MR MAYER: Because I haven't got the money to be able to pay it. You see I am only on £120 a fortnight and that is a struggle. I haven't got any building society savings either.[25]THE DEPUTY JUDGE: You heard that the council's position is that they want an order against you, an order for costs.[26]MR MAYER: I am saying it should be against the Social Care Team and Diana Porter because they acted so inappropriately, even possibly illegally, which my solicitor is finding out about, they put me into the position of having to question it. I didn't know. That is my answer to it. They should be paying it. I think the Social Care team and between them should be paying it. That is my personal opinion. Because if they acted appropriately over other things I would not have been so awkward -- to put my foot down about it.[27]THE DEPUTY JUDGE: Very well. Is there anything else?[28]MR MAYER: No, that is all I have to say.[29]THE DEPUTY JUDGE: Thank you. Please sit down.[30]MR MAYER: I don't know how, if I do pay, if it does I don't know how I am going to pay it, but if I do pay it in instalments or anyway like that, or Diana Porter pays it, if anything happens like that, I am going to take a legal case against the Social Care Team and possibly Diana Porter for forcing me into the position. That is the only way of doing it. Pay it in the way it can possibly be done and then see if they can reimburse me the money. That is the way I would go about it.[31]THE DEPUTY JUDGE: Mr Mayer chose to bring an appeal to the High Court against his council tax liability. He has lost on that appeal. I take note of his submission that he has not got the money to pay and has no savings. I also note what the council says about the exercise of discretion should hardship be established. I see no reason why costs should not follow the event and I therefore make an order that Mr Mayer should pay the council's legal costs summarily assessed in the sum of £3,407.50.[32]MR MAYER: You said it was £500 or something.[33]THE DEPUTY JUDGE: We were talking about the VAT on the bill. The bill which I was told had been shown to you was £2,900 plus VAT. The VAT is £507.50. That is a part but only a part in fact--[34]MR MAYER: What do I do if I haven't got the money?[35]THE DEPUTY JUDGE: -- of what the council has had to pay in order to resist the appeal which you chose to bring to the court.[36]MR MAYER: What can I do if I haven't got the money? What can I do? Can it be paid in instalments?[37]THE DEPUTY JUDGE: You will have to discuss with the council what it is they are going to do about it.[38]MR MAYER: I am definitely taking a legal case out against the Social Care Team as well even if there is a way of paying the money, so they can reimburse the money. They were the ones who were the cause of it, the original cause of it, let them jolly well pay for it.[39]THE DEPUTY JUDGE: You will no doubt do as you are advised, Mr Mayer, but there is an order in the terms which I have already indicated.[40]MR MAYER: But how can I pay it if I haven't got the money anyway, this is the point, apart from anything.[41]THE DEPUTY JUDGE: Mr Mayer, I have said to you more than once today that I am here to decide a narrow point of law in this case. I am not an advice agency. There are advice agencies. The Council itself, as you have already been told, has officers who deal with hardship cases and it is in that direction that you will be advised to direct your enquiries.[42]MR MAYER: So far as I am concerned I should not be paying a penny of it. I am sorry, so far as I am concerned the Social Care Team should jolly well pay for it. That is my opinion. Simply the Care Team.