Pogonowska, R (on the application of) v London Borough of Camden [2008] EWHC 3212 (Admin)

[2008] EWHC 3212 (Admin)Case No CO/8100/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 5 November 2008
Strand
London WC2A 2LL
B e f o r e:
TIM CORNER QC
Between
THE QUEEN ON THE APPLICATION OF BOZENA POGONOWSKAClaimantv
Between
LONDON BOROUGH OF CAMDENDefendant
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)
The Claimant appeared in person for in personMR P OLDHAM (instructed by London Borough of Camden) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: This is an appeal from the Valuation Tribunal. By Regulation 32 of the Valuation and Community Charge Tribunals Regulations 1989:
"An appeal shall lie to the High Court on a question of law arising out of a decision or order which is given or made by a tribunal on an appeal."
[2]Consequently, as Mr Oldham who appears for the London Borough of Camden, the respondent to this appeal, says, the appellant, Mrs Pogonowska, cannot succeed on this appeal unless she shows that the Valuation Tribunal made an error of law. In short, the respondent says that the appeal must fail because it is an attack on the findings of fact which the Valuation Tribunal was entitled to make. That is how I read the appellant's challenge in this case; it is an attack on the findings of fact, and the attack can only succeed, in essence, if the appellant shows that either the Valuation Tribunal failed to take into account relevant matters, left out of account irrelevant ones, or reached a decision which was perverse. I accept also that, in writing its decision, the tribunal did not have to deal with every point that was made, and it will not be assumed that it has left matters out of account generally just because they are not mentioned. But it must of course, as we are told by the authorities including Re Poyser and Mills Arbitration [1964] Queens Bench Reports, it must deal with the main points raised.[3]By way of statutory background, helpfully set out by Mr Oldham, by the Local Government Finance Act of 1992, under section 1:
"...each billing authority shall [...] levy and collect a tax, to be called council tax, which shall be payable in respect of dwellings situated in its area."
[4]Subsection (2):
"In this part, 'billing authority' means "(a) in relation to [London] ... London borough council."
[5]By section 6, which deals with persons liable to pay council tax, subsection (1) provides:
"The person who is liable to pay council tax in respect of any chargeable dwelling and any day is the person who falls within the first paragraph of subsection (2) below to apply, taking paragraph (a) of that subsection first, paragraph (b) next, and so on."
[6]As Mr Oldham says, that subsection creates a hierarchy of chargeability with the first person who fits one of the categories of subsections (a) to (f), reading down, being liable to pay the tax.

(e) :

"He is such a resident."
[7]And (f):
"He is the owner of the dwelling."
[8]Subsection (5) of section 6 defines "owner" as:
"The person as regards whom the following conditions are fulfilled "(a) he has a material interest in the whole or any part of the dwelling."
[9]And "resident":
"...in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling."
[10]As Mr Oldham rightly says, what that means here is that if the appellant's son was not liable under sections 6(2)(e) as a resident of 8 Dobson Close, which is the property in question, the appellant was liable under 6(2)(f) as the property's owner.[11]By way of further background, section 11 of the Act provides for discounts, and section 11(1)(a) provides for a discount where there is only one resident at the dwelling. Further, section 4 of the Act provides the delegated legislation for exemptions, and the Council Tax (Exempt Dwellings) Order 1992, the order was made under it. This includes certain exemptions for some unoccupied dwellings and some dwellings occupied by students.[12]In this case, the issue was whether the appellant's son was resident at the property at the relevant time. If he was then he was liable for council tax under section 6(2)(e), and if he was not resident his mother was liable under section 6(2)(f). By section 6(5), as I have already read out, a person is "resident" in a property if they have their sole or main residence in it. That expression was dealt with in a case to which I am helpfully drawn by Mr Oldham, Williams v Horsham District Council [2004] 3 All England Reports, page 40. This issue is an issue of fact, and I think that paragraphs 26 and 27 of that case are helpful:
"26. All this reinforces the conclusion (which is one that we would have reached without reference to the dictionary) that in section 6(5) of the 1992 Act 'sole or main residence' refers to premises in which the taxpayer actually resides. The qualification 'sole or main' addresses the fact that a person may reside in more than one place. We think that it is probably impossible to produce a definition of 'main residence' that will provide the appropriate test in all circumstances. Usually, however, a person's main residence will be the dwelling that a reasonable onlooker, with knowledge of the material facts, would regard as that person's home at the material time. That test may not always be an easy one to apply, but we have no doubt as to the conclusion to which it leads in the present case." "27. Mr Williams, upon whom we did not need to call, in a lengthy and lucid written argument, contended that the facts of his case are very different from the three considered by the tribunal. We agree. In each of those cases there was: a matrimonial home in which the wife resided; the taxpayer had to live elsewhere as a condition of his employment, but when on leave or holiday returned to the matrimonial home; and in each of those cases the reasonable onlooker would have concluded that the residence subject to community charge or council tax remained at all material times the taxpayer's home. Where a person ceases to reside in the house which has been his sole or main residence for a period of time, an issue may arise as to whether during that period the house in question ceases to be his sole or main residence. The answer will depend on the particular circumstances; it will be a matter of fact and degree."
[13]Turning to the decision of the tribunal, it makes clear under "background" that the appeal disputed the decision of the London Borough of Camden making the appellant Mrs Pogonowska liable for council tax at 8 Dobson Close from 1 April 2004 to date. At paragraph 15 of the decision, the tribunal said what the core issue was:
"...which is, establishing who is the liable person for Council Tax on 8 Dobson Close with effect from 1 April 2004."
[14]The tribunal in its decision set out the billing authority's case, saying on page 2:
"In summary, Mr Emami reiterated that Camden Billing Authority was not satisfied that Joseph Pogonowski was resident at 8 Dobson Close. He said that the information the Council held was contradictory and did not support this claim. The Billing Authority is satisfied that, for the purposes of Council Tax, the main residence of both Mrs Pogonowska and her son is in the London Borough of Westminster at Tresham Crescent where she pays the full Council Tax charge."
[15]The tribunal set out the appellant's case. In the first paragraph of its summary of her case, the tribunal says as follows:
"Mrs Pogonowska provided the tribunal with a written statement and copies of correspondence and documentation. Mrs Pogonowska said that her son, Joseph had lived at 8 Dobson Close to be nearer to his university and because he had a part-time job at 'Blockbusters' across the road from the property. She explained that Joseph attended Westminster College from 1997 to 1999 and then subsequently went to the University of North London (hereafter the Metropolitan University) from 1999. She complained that the Billing Authority had mislaid documentation she had sent and given her incorrect information."
[16]A little further down, the tribunal says:
"8 Dobson Close was purchased in 1995 and her son, Joseph, moved to live there when they left Balmore Street in 1997, he was 19 years old. She stated that he was still resident at Dobson Close and working part time at 'Blockbusters' but was currently taking a year off from his course at the Metropolitan University."
[17]Then the tribunal says:
"In summary Mrs Pogonowska reiterated that Joseph, her son, lives at 8 Dobson Close and is likely to remain there for the time being as it is convenient for his needs at present. She said she intended to move back to 69 Balmore Street. She claimed to have paid all she owed to the Council and was even given a refund back in 1997. She considered that the Billing Authority have confused the issue and that their statements were unreliable."
[18]The latter part of the case is headed "decision". After setting out the provisions of section 6(2) of the 1992 Act, the tribunal reaches conclusions as follows:
"It is clear from Section 6 above that, if the evidence supports it, Joseph could be liable under subsection (e) being resident in the property. "
The Tribunal looked at Mrs Pogonowska's evidence and noted that there were a number of inconsistencies in her statements at the hearing and in some of the correspondence included in her written submission, in relation to both properties in the London Borough of Camden. "With specific reference to 8 Dobson Close, Mrs Pogonowska had consistently claimed the property empty and she had paid the discounted rate of Council Tax from the date of ownership in 1995. Further, Westminster Council had billed Mrs Pogonowska at 24 Tresham Street..."[19]I interrupt to say at some stages it appears to be referred to as Tresham Crescent and at others Tresham Street, but we all know it is a property in Westminster, number 24 Tresham Street or Crescent. I continue the quote:
"...and confirmed that she had declared her son, Joseph, to be resident at Tresham Street from 1997. This statement had not been in question until 2004, that is, when Camden Council said she had claimed Joseph had been living at 8 Dobson Close since 1997. "
In support of her statement, Mrs Pogonowska provided telephone and electricity bills in respect of Dobson Close that were in Joseph's name. The electricity bills were dated 2005 and later, but the telephone bills were dated from 1999 with one account showing light usage during 1999, whereas from 2004 other accounts showed a higher level of charge suggesting more frequent use. "Throughout it seems that Joseph has occupied the various addresses owned by his mother. It is not disputed that at some stage he has been an 'ad hoc' resident at 8 Dobson Close and may even have used it 'part time' to fit in with his lifestyle. However, the Tribunal noted that Westminster Council was advised that Joseph lived with his mother in 1997 and there had been no retraction of that statement to Westminster Council. The full Council Tax charge was being paid by her in respect of 24 Tresham Street therefore, it is reasonable to accept that at least two people are resident there. Mrs Pogonowska has referred to 'tenants' but no details were offered. "Since 2004 the utility bills in Joseph's name suggest more strongly that he may now be using the property at Dobson Street more regularly, however, the credit check done by 'Experian' shows no other link to this address for Joseph. The Tribunal considered that the fact that Joseph may utilise 8 Dobson Close did not mean that he had changed his sole or main residence from the address that he shared with his mother at Tresham Street. "The Tribunal noted that Mrs Pogonowska had made conflicting statements which have served to create confusion. Her statement to Camden Council in May 2004 claimed that her son was using both addresses at the time and she admitted to receiving correspondence herself at Dobson Close. Also Mrs Pogonowska did not advise Westminster Council that he had moved out of 24 Tresham Street until her letter received by Westminster in May 2005 (this was written at the insistence of Camden, according to Mrs Pogonowska) and as she did not claim a Single Person Discount from Westminster continuing to pay the full rate of Council Tax. It can only be assumed that they did not remove him from her account. Throughout, it appears that Mrs Pogonowska has made statements intended to extract the best advantage in respect of her liability to Council Tax on each of her properties. "On balance the Tribunal considered that there was insufficient evidence to support Mrs Pogonowska's claim that Joseph, her son, had permanently changed his address from that of 24 Tresham Street in the London Borough of Westminster to that of 8 Dobson Close, in the London Borough of Camden during 1997. From the weight of evidence before it, the Tribunal determines that Mrs Pogonowska remains liable for Council Tax at Dobson Close and the appeal is dismissed."[20]The question is, did the tribunal err in law in reaching its conclusions? In essence, as I have already said, the question is whether its decision was supportable by evidence before it? Or, otherwise put: was the decision such as it could reasonably make, taking account of the evidence that it had? Furthermore, as I have already said, if it showed that it failed to take into account a material factor then I would have to quash the decision and allow the appeal, unless I took the view that the matter left out of account would not have affected the decision.[21]Mrs Pogonowska suggested that the tribunal's decision was flawed in law. She raised a number of factual points which, I have to say, appeared to me to be, in essence, reasserting the case that she put to the tribunal at the hearing. I have made clear that it is not my function and I am not allowed to conduct a rehearing on the facts of this appeal. I am only here to consider an appeal on question of law. Furthermore, I was presented with a number of papers which were not before the tribunal. They cannot be relevant to the judgment as to whether the tribunal erred in law. The tribunal can only be expected to take account of the matters that were put before it.[22]Mr Oldham very helpfully in his skeleton argument went through the matters which led the tribunal to its conclusion, taking me to the references in the bundle which support the propositions which form the basis of the tribunal's conclusions. I accept that, subject to one point to which I need to return, it is plain that the tribunal had evidence for the conclusions it reached, and I do not propose to go through the various bundle references which make that plain. But I should add that it was not suggested by the appellant, Mrs Pogonowska, that the tribunal did not have evidence on the basis of which it could reach the conclusions it did.[23]The one point which I have found troubling is a point which, if I may say so, very fairly, Mr Oldham for the London Borough of Camden drew to my attention, clearly conceding that it was his duty to do so. I agree, and I was grateful to him and to his clients for their frankness in doing this. The point to which Mr Oldham drew my attention is one that arises from the third paragraph from the end of the tribunal's decision, and I will read the first sentence of that paragraph again:
"Since 2004 the utility bills in Joseph's name suggest more strongly that he may now be using the property at Dobson Street more regularly, however, the credit check done by 'Experian' shows no other link to this address for Joseph."
[24]Now, the point that Mr Oldham made to me was that in fact the Experian check does show Joseph Pogonowski as having been on the voters roll from October 2004 to the current register, and the search date by Experian is given, 30 May 2007. I find this troubling, I have to say. I ask myself what the words in the sentence which I have quoted mean. It is suggested by Mr Oldham, and I agree, that I am not to read this decision letter like a statute and I should not take the approach of applying, as it were, a toothcomb when I read it. I entirely agree with him about that. He says that I should adopt a tolerably benevolent reading. Accepting that for the moment, I have to say that it seems to me, on an ordinary and fair reading of that passage, that the tribunal is saying, having referred to the utility bills suggesting more strongly that he may now be using the property at Dobson Street, it seems to me that the tribunal is saying that the credit check done by Experian does not add to that, it shows no other link to this address for Joseph. But in fact it shows Joseph on the voters roll. As Mr Oldham accepted, registration on the voters roll could be taken as an indication of where someone makes their home.[25]It was suggested to me by Mr Oldham that if I construe the decision in that way so that it would appear that the tribunal is not taking account of the reference to the voters roll, I should still not allow the appeal because it clearly would not have made any difference. I do not think I can accept that. I quite agree with Mr Oldham that, by this stage of the decision letter, it is plain that matters are going against Mrs Pogonowska. However, I need to remember that the period on which Joseph is shown as being on the electoral roll is from October 2004 onwards. It is the period from April 2004 that is the core issue and, in the paragraph in question, the tribunal is dealing with the situation since 2004. It does not seem to me that I can safely conclude that, if the tribunal had taken account of the fact that Joseph is mentioned as being on the voters roll, its decision would have been the same.[26]I quite accept, as was put to me by Mr Oldham, that not every matter that the tribunal has taken into account needs to be specifically mentioned in the decision, but I am troubled that it seems to me what that sentence is saying, what the sentence on which I have concentrated is saying, is that the credit check shows no other link; in other words positively asserting that it adds nothing. As I have already said, it seems to me that it does, and that it adds something which could have made the difference -- I am not saying would have but could have -- made a difference to the decision that the tribunal reached.[27]In those circumstances, it seems to me that I am obliged to allow this appeal on the basis that there has been an error in law and the matter will have to be remitted to the tribunal to hear again.[28]Thank you very much, Mrs Pogonowska. Thank you, Mr Oldham for your help.