Lever v London Borough of Southwark [2009] EWHC 536 (Admin)

Case No CO/9305/2008[2009] EWHC 536 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 26th February 2009
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE RAYNOR QC
(Sitting as a Deputy High Court Judge)
Between
STUART LEVERAppellantv
Between
THE LONDON BOROUGH OF SOUTHWARKRespondent
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 Appellant appeared in person for in personSimon Butler (instructed by London Borough of Southwark) appeared for Respondent
J U D G M E N T
[1]THE DEPUTY HIGH COURT JUDGE: This is an appeal brought under the provisions of Regulation 51 of the Valuation and Community Charge Tribunals Regulations 1989 against the decision of the London South East Valuation Tribunal, a decision which was made on 9th June 2008. The appeal may only be brought to the High Court on a question of law. Mr Lever, the appellant, does bring the appeal on a question of law. The appeal was lodged on 29th September 2008, and is thus out of time, the time limit being that contained in Part 52PD of the Civil Procedure Rules, which is a 4-week time limit. It is also material to note that regulation 51(3)(a) provides that the court may dismiss an appeal where it is made more than 4 weeks after the date of the decision. In fact, no point is taken by the respondent in relation to the late filing of the notice of appeal, because it is clear that there was a substantial amount of confusion, for which the appellant was not responsible, about what the proper procedure was and the proper forum. Therefore, I extend the time.[2]The question is a short question, which is whether the tribunal was wrong in law in holding that this case did not come within the provisions of paragraph 1(1) of the schedule to the Council Tax (Prescribed Classes of Dwellings) (England) Regulations 2003. The case concerns a second home discount, which formerly the appellant had enjoyed, and which is now no longer enjoyed. Indeed, there would be no entitlement to the discount if the case is not within paragraph 1(1) of that schedule. The schedule relates to what are described as "job-related dwellings". The schedule provides that "a dwelling is job-related for a person if it is provided for him by reason of his employment... in any of the following cases".

(a) and (b):

"(a)where it is necessary for the proper performance of the duties of the employment that the employee should reside in that dwelling; (b)where the dwelling is provided for the better performance of the duties of the employment, and it is one of the kinds of employment in the case of which it is customary for employers to provide dwellings to employees"
. Mr Lever, who is the director of the company in which is vested the property, concedes, entirely appropriately, that his case could not come within (b), because the case is not a case where it is customary for employers to provide dwellings to employees. He can only succeed in this appeal if I hold that the tribunal was wrong when it said that the case was not within (a), and I repeat that (a) provides that it is "necessary for the proper performance of the duties... that the employee should reside in that building".[3]The material facts can be very shortly stated. Mr Lever was formerly in practice as an accountant. In 1978 he purchased the property with which I am concerned, which is 26 River Court on the South Bank, in his own name. Since 1984, however, it has been vested in the name of an investment company, of which he and his daughter are directors. The flat is very modest. It is one-roomed — there is no separate bedroom. It provides overnight accommodation and it is used also for the purposes of the business of the company when one of the directors is present. In other words, it is a place to sleep and it is a place to work. What is perfectly plain, and I accept, as the tribunal accepted, that it has been used by both Mr Lever and his daughter when they have needed to be in London for the purposes of the business of Murcan Limited, the investment company. Mr Lever stays in the property on a periodic basis and he fairly said to me today that sometimes he stays twice per week, sometimes twice per month. There is no regularity; it depends upon the needs of the company. His home — it is clear on any view his first home — is Warrens Cross Farm, Lechlade in Gloucestershire.[4]The tribunal decision concluded as follows and it is this passage with which Mr Lever takes exception:
"It is the tribunal's decision that from the evidence presented both verbally and in writing that Mr Lever's business work could be operated from other dwellings equally as well as 26 River Court. There must be a link established between the duties of employment and the particular property in which the employee is living, such that it would be impossible to carry out the duties if he were living in adifferent property. In this case it is a matter of personal choice and not a matter of employment dictates."
For that reason, the tribunal held that the criterion in subparagraph (a) of the regulation did not apply.[5]What Mr Lever has submitted to me is that it is necessary, for the purposes of the business of Murcan, that he should stay in London and that he stays in the property with which the company has provided him. He says that that is sufficient to come within the provisions of subparagraph (a). I am afraid I disagree. In my judgment, paragraph (a) has to be read and construed together with paragraph (b). Its wording is restrictive and, to my mind, deliberately restrictive. There would be no question or difficulty in Mr Lever showing that he came within the first words of subparagraph (b), because quite plainly the dwelling is provided for the better performance of the duties of employment, but he cannot come within (b) because there is the further restriction, which I have mentioned already, meaning that he is not within that provision.[6]Paragraph (a), it seems to me, is intentionally restrictive. It must be necessary for the proper performance of the duties of employment that the employee should reside in that dwelling. I believe that the provision is intended to refer to dwellings that are connected with the duties of employment — for example, a dwelling provided in the grounds of a care home, where the employee has to go into the care home in the course of his work; another example would be a dwelling which is provided in the grounds of a school. In every case residence in the dwelling concerned has to be necessary for the proper performance of the duties. That is my first reason for upholding the tribunal's decision. The second reason why I think that the tribunal was right in saying that the case was not within (a) is that I do not believe, on the facts, that Mr Lever actually resides in the dwelling. Residence connotes a situation of some permanency; it does not mean that you stay there occasionally, sometimes twice a month, sometimes twice a week. You must reside there. If anybody asks, "Where does Mr Lever reside?", on the facts presented to me, the answer would be plain: he resides in his home in Gloucestershire and he uses the flat in London for occasional stays in connection with his directorship.[7]In my judgement, the tribunal was right to say that this case is not within paragraph (a) and this appeal is dismissed.[8]THE CLAIMANT: Am I allowed to say anything? I'll just say, if, I may, that I thought (a) and (b) were separate. It's not (b), it is (a), I thought, but you're bringing (a) and (b) together.[9]THE DEPUTY HIGH COURT JUDGE: I have ruled against you, Mr Lever. You are entitled, if you wish, to seek my permission or, indeed, the Court of Appeal's permission, to appeal my decision, if you wish to go further.[10]THE CLAIMANT: I've had enough, thank you.[11]MR BUTLER: My Lord, there is an application for costs. We have served Mr Lever with a copy of that schedule.[12]THE DEPUTY HIGH COURT JUDGE: Can I have a look at that please?[13]THE CLAIMANT: They seem very high.[14]THE DEPUTY HIGH COURT JUDGE: I have not even seen them yet, Mr Lever.[15]MR BUTLER: (Handed).[16]THE DEPUTY HIGH COURT JUDGE: You would be very surprised, Mr Lever — and this is no consolation to you — at the level of costs in litigation. This is actually quite modest compared to a lot of the costs schedules that I have seen. Whether it is modest, objectively, is a different matter. Mr Lever, you have lost this appeal and, as a matter of principle, costs will follow the event. Leaving aside the question of amount, is there any reason why you should not be ordered to pay the costs of the council, as a matter of principle, having a lost?[17]THE CLAIMANT: All I can say, really, to that, is if they had been on the ball and looked at their correspondence and seen it, they may not have needed to employ a very learned barrister at the last moment, who had to do things in a day. It's been on the surface for ages. That's my only reason. I think, as they didn't tell me until 2 years later about the change in law, their administration is very lax, however pleasant they may be, and that the costs, which you said are modest, could be much more modest, or not at all, if they had had their paperwork, had the bundle and seen it there.[18]THE DEPUTY HIGH COURT JUDGE: You have lost your appeal. I order you to pay the costs. Do you have any representations to make about the actual amounts, other than you say, "It seems rather a lot"?[19]THE CLAIMANT: Well, I'm out of my sphere. I don't know. I feel that the time spent could have been less if the papers had been served earlier and advice (?), but I'm certainly in your hands. I think it is a lot. I have to say that friends have said, "Don't do that. It's going to cost you a lot of money".[20]THE DEPUTY HIGH COURT JUDGE: They were right.[21]THE CLAIMANT: So I've had the answer. So, although I'm unhappy with your decision — it hasn't really explained — it's an end to it. I hope I don't have to -- these days, have to pay as many costs as they put forward. Southwark are probably richer than I am.[22]THE DEPUTY HIGH COURT JUDGE: I propose to summarily assess the costs in the sum of £1,750. So the appellant to pay the costs of the respondent, summarily assessed in the sum of £1,750.