Branwell v Valuation Office Agency [2015] EWHC 824 (Admin)

Case No CO/2356/2014[2015] EWHC 824 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/04/2015
Before
HONOURABLE MRS JUDGE ELISABETH LAING DBE
Between
BRANWELLAppellantVALUATION OFFICE AGENCYRespondent
The Appellant in person for in personMr John Jolliffe (instructed by HMRC) for RespondentHearing Hearing dates: 11 March 2015
JudgmentMrs Justice Elisabeth Laing DBE :Introduction
[1]This is an appeal on a point of law under regulation 43 of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (2009 SI No 2269) (“the Appeal Regulations”) against a decision of a panel (“the Panel”) of the Valuation Tribunal for England (“the VTE”).[2]The appellant is Miss Branwell. She is the long leaseholder of a flat at 90 Chiswick Village, London W4 3BZ (“the flat”). In short, her contentions on this appeal are that in, not allowing her appeal against the refusal of the Listing Officer to remove her flat from the Council Tax Valuation List, the Panel(1) acted unfairly;(2) wrongly concluded that the flat was capable of being a “hereditament” and(3) acted incompatibly with her Convention Rights.[3]I am grateful to her for her written and oral submissions, and to Mr Jolliffe, who represented the Valuation Office Agency (“the VOA”), for his. I am also grateful to those who instruct him for preparing documents for this hearing in 18 point bold format, so as to make it easier for the Appellant, who has a visual difficulty, to read them.[4]In view of the gaps in the documents which were provided at the hearing (some of which I will refer to in this judgment) and the Appellant’s allegations about the preparation for, and conduct of, the hearing in front of the Panel, it would have been helpful if the parties had co-operated so as to ensure, before the hearing, that a paginated bundle of all the relevant documents was prepared. This might have necessitated some contact between the VOA, the VTE, and the Listing Officer, to procure, for example, the Listing Officer’s presentation pack, evidence of when it (or the information in it) was sent to the Appellant, (if different) the photographs which were relied on by both sides at the hearing, and the documents relating to the Appellant’s application to the VTE for a review. It is particularly important when the VOA is responding to an appeal by an unrepresented litigant, who may not understand what documents may be relevant to an appeal, it tries to ensure, so far as is possible, that the court can make a fully informed decision on the arguments which the litigant in person is relying on. It is also important that unrepresented litigants ensure that if they send documents to the court they also send them to other party to the appeal.[5]The appeal was lodged somewhat late. The Respondent, accepting that the Appellant was unrepresented, and had given some explanation for the delay, took a neutral position on whether I should hear it nonetheless. I decided, in the light of the importance of the issues to the Appellant, to consider the merits of the appeal, despite its lateness.

The Appellant’s factual case

[6]The Appellant told me that she has a 99-year lease of the flat, which, she thinks, ran from 1996. She produced a document entitled “Extract from Lease of Lessee of Chiswick Village Flat”. This reads:
“(11) Not to alter Not at any time ....to make structural alterations in or additions to the plan elevation or appearance of Demised Premises or in any of the party walls or the principle [sic] or bearing walls or timbers or iron steel or other supports thereof nor to alter connect to extend or otherwise interfere with any heating or other plumbing installation nor shall the Lessee do or fail to do any act deed or thing which would adversely affect the support, repair, maintenance, cleanliness or enjoyment of the flats in the building.”
Not at any time ....to make structural alterations in or additions to the plan elevation or appearance of Demised Premises or in any of the party walls or the principle [sic] or bearing walls or timbers or iron steel or other supports thereof nor to alter connect to extend or otherwise interfere with any heating or other plumbing installation nor shall the Lessee do or fail to do any act deed or thing which would adversely affect the support, repair, maintenance, cleanliness or enjoyment of the flats in the building.”[7]It seems that there have been problems with damp in the flat since 1982. The Appellant moved out of the flat in 2000 because of those problems. The flat was flooded in 1999 and again, possibly in 2004. In 2000 she moved to Somerset, where she still lives.[8]In about 2010, she says that an officer from Hounslow London Borough Council (“the Council”), Hilary Macdonald, visited the flat and awarded her a discretionary six- month waiver of council tax. At that officer’s suggestion, the Appellant wrote to the Harrow Valuation Office (“HVO”) on 28 October 2010 asking for the flat to be removed from the council tax list.[9]In a letter dated 26 November 2010 to HVO, she said that the reason for this was that the flat was uninhabitable. She explained that a member of the Council, after a site visit, had supported that claim. Her GP had tried to get her re-housed in March 1982 because the flat’s condition was adversely affecting her health. The flat continued to decay. Action was taken against the head-leaseholder, but “Brentford Court lost the papers, mid 1996, and as I could not further the action, Legal Aid had to be re-paid”. I interpose that the Appellant mentioned in a document headed “CO/2356/2013 The Background” that a claim was issued against the freeholder in 2006 for breach of the lease and negligence, but that the Appellant could not continue with it for financial reasons. It seems that this document, which was in a folder in the papers which I had, had not been served on Mr Jolliffe or his clients. I do not know, therefore, if there were two claims, or if there was only one. The Appellant finished her letter to HVO by saying that she believed that a decision to remove the flat from the list would put pressure on the head-leaseholder.[10]The Appellant received an acknowledgement from HVO dated 2 December 2010. This said that the council tax entry would be carefully reviewed and if HVO needed any more information it would contact her. They might need to see the property. They might only need to check details from the outside, in which case she would not need to be present. If they needed to see inside, they would contact her. They would send her a decision as soon as the review was complete. They could be contacted by telephone for further information, and had a number of leaflets about specific aspects of council tax.[11]There seems to have been a misunderstanding about a site visit. The Appellant was told that she needed to make an appointment for one (see the letter of 22 December 2010), and she did, for 18 January 2011, with Mr Thevasayan. She travelled up to London on a coach in freezing weather, and waited outside for him, as the flat intercom was not working. She says that he did not turn up. She rang his office and was told he had gone elsewhere. She missed her booked coach and had to get a later one, which was unheated. She hurt herself on the way home after slipping on the ice, and refused another appointment for that time of year. She complained by ’phone and was told that Mr Thevasayan had gone to the flat but that they must have missed each other.[12]The Appellant says that she received a decision letter made without an inspection, before the date of an uncancelled appointment. She produced the decision letter at the hearing of this appeal. The first page of the decision letter is undated, but she has annotated it in manuscript to say that she received it on 20 January “2010”. I think she must have meant “2011”. The second page is dated 14 January 2011, which is, to say the least, surprising, if an appointment to see the flat had been arranged for 18 January 2011.[13]The Listing Officer’s decision was not to change the band or the effective date. The reasons for the decision referred to the letter of 22 December 2010. The author of the decision letter said that as he/she had not heard from the Appellant in response to the letter of 22 December, he/she had based the decision on the information provided in the Appellant’s proposal. This was that the flat was uninhabitable. That was accurate: see the letter of 26 November 2010, to which I have already referred.[14]The decision letter said that whether a property in poor order was a hereditament depended on whether, having regard to the character of the property, and a reasonable amount of repair works, the property could be occupied as a dwelling. Before the author of the letter could delete the flat from the list, he/she had to be satisfied that the extent of the damage was so severe, that, having regard to its character, the amount of repair work needed is not reasonable and the property does not constitute a hereditament.[15]The author’s opinion was that the cost to replace the kitchen and bathroom windows would not be prohibitive when compared with the value of the property. This suggests that some sort of visual inspection might have been done. It was part of a large block of flats, the letter went on, and he/she assumed it was structurally sound as other flats were occupied. In the result, the flat was a hereditament and should stay on the list.[16]The decision letter continued by inviting the Appellant to get in touch if she wanted to talk about any aspect of the decision. It then gave information about appealing to the valuation tribunal. The contact details for the tribunal were given, and the decision letter said that the clerk of the tribunal would answer any questions the appellant might have about appealing. If she were to appeal, the clerk would send her guidance about the appeal process.[17]On 8 August 2013, HVO wrote to the appellant. She produced a copy of this letter at the hearing, when asked by me. The copy does not seem to be complete, as it ends without any sign off (in contrast with the decision letter, which is signed by the Listing Officer). The purpose of this letter was to tell the Appellant what evidence would be presented at the appeal listed for 5 September 2013.[18]That letter said that HVO’s contention would be that though the flat was in need of repair, it was not uninhabitable and the cost of repair would not be prohibitive when compared with the value of the property. It was part of a large block of flats and it was assumed that the building itself was structurally sound as other flats were occupied. That meant that the flat was still a hereditament and should stay on the list. There were only two options when a property was in a poor state of repair; to delete it from the list because it no longer qualified as a dwelling because of a severe degree of disrepair, or to value it assuming it is in a reasonable state of repair. HVO would have to be satisfied that the property was no longer capable of beneficial occupation and had reached a stage where it was not capable of economic repair. HVO referred to the recent decision of this Court in Wilson v Coll (Listing Officer) [2011] EWHC 2824 (Admin), and to the relevant legislative background. If the flat was a hereditament (as HVO contended that it was) HVO had to value it on the assumption that it was in a reasonable state of repair, regardless of its actual condition. There was “no economic test when considering domestic properties unlike when considering commercial properties”. That is where the letter ends, apparently incomplete.[19]There was an inspection of the flat before the hearing of the appeal, by a Ms Vekria, who took photographs. According to the Panel’s decision, that inspection was in March 2013. The Appellant was present for this. The Appellant told me that she expected Ms Vekria to take photographs of the “worst bits”, but that she did not do so.[20]The Appellant’s case is that she was told, before the appeal, that the condition of the flat would not be “an issue” or perhaps, “in issue”. Although she had instructed a surveyor, she told him not to come to the hearing. She did bring some photographs of the flat to the hearing.[21]The surveyor, Mr Boggon, wrote a letter to the tribunal on 18 October 2013, in support of the Appellant’s application for a review of the tribunal’s decision. It is convenient to summarise his letter here.[22]He had made a close inspection on 12 June 2012 after the most recent flooding. He inspected the upstairs flat and discovered that the source of the flooding had been rectified. The representative of the Management Company was present and raised concerns about the safety of the flat and about the whole building since its wiring had been compromised by leaks and flooding. In addition to the flooding, there was water damage above and below the living room window. The Management Company expressed an intention to put remedial action in hand and agreed to contact Mr Boggon about this, but did not do so. I interpose that a letter in the bundle dated 5 September 2013 suggests that the Appellant was notified on that date, at her address in Somerset, that works were to be carried out on some of the blocks for three weeks starting on 16 September 2013.[23]Mr Boggon had expected to give evidence at the appeal but the Appellant had told him, after a call from HVO, that he would not be needed since it had been accepted that the flat was in an uninhabitable condition. HVO told the Appellant that the appeal was being dealt with on a point of law. If Mr Boggon had gone to the hearing, his evidence would have been that the flat was not capable of beneficial occupation as the conditions in it would affect the health of any occupants.[24]It would not be reasonable, he went on, for the leaseholder to have to pay the substantial costs of repairs to make the flat inhabitable which were the landlord’s responsibility, and which were so extensive as to require the supervision of a Chartered Surveyor. Many panes of glass were missing from the living room window. The landlord’s negligence had allowed rust to distort the window frames, which had been well maintained internally. The Appellant had not been living in the flat. She lived in Somerset and had travelled up by coach. The food in the kitchen dated back to 2000.[25]Mr Boggon’s letter said that the only source of water in the flat was a dripping tap connected to a lead pipe. It was not drinkable and there was no water supply to the WC. It was true that the other flats in the block were occupied but the Appellant was unable to occupy her flat because of its condition and it would be imprudent for her to spend money on decorating it until structural works had been done by the Management Company. Mr Boggon believed that the Appellant was misled in a ’phone conversation by HVO and as a result was not represented on matters which were relevant to the making of a satisfactory decision. The Panel had accepted evidence which was not credible and which would have been challenged if the Appellant had been represented.

The legal framework

[26]Section 1 of the Local Government Finance Act 1992 (“LGFA”) provides for the levying and collection of council tax. Council tax is payable in respect of dwellings situated in the area of a billing authority. Section 3 defines “dwelling”. A dwelling is any property which has three characteristics.(1) It would have been a hereditament for the purposes of the definition of hereditament in section 115(1) of the General Rate Act 1967 (“the GRA”) had the GRA remained in force. That definition (“save as the context otherwise requires”) is as follows “ ‘hereditament’ means property which is or may become liable to a rate, being a unit of such property which is, or would fall to be shown as a separate item in the valuation list”.(2) It is not shown or required to be shown in a non-domestic rating list.(3) It is not exempt from local non-domestic rating for the purposes of Part III of the Local Government Finance Act 1988 (“the LGFA 88”).[27]As Sedley LJ observed in Vtesse Networks Limited v Bradford (Valuation Officer) [2006] EWCA Civ 1339; [2006] RA 427, at paragraph 40, the definition of ‘hereditament’ “assumes and relies on an existing fund of knowledge of what is and is not capable of being shown as a separate item in the valuation list”. I do not consider that the decision of the Court of Appeal in Post Office v Nottingham City Council [1976] 1 WLR 624 helps with what is a “hereditament”. The issue in that case was whether a building in the course of construction was complete for the purposes of Schedule 1 to the GRA, which is different from the question whether a building in disrepair is a hereditament or not.[28]Section 6 of the LGFA determines who is liable to pay council tax in respect of any chargeable dwelling. It imposes liability, in descending order, on a person who is resident in the dwelling and has a freehold interest in any part of it, through a chain of people with an interest in, or connection with, the property. If no-one is resident in the dwelling, the owner is liable. “Owner”, in relation to any dwelling, is defined for the purposes of Part 1 of the LGFA (unless the context otherwise requires) as someone who has “a material interest” in a dwelling and it is not subject to a material interest inferior to his interest. “Material interest” is defined as “a freehold interest or a leasehold interest which was granted for a term of 6 months or more”. The effect of these provisions is that if no-one is living in a dwelling, and it is subject to a lease for a term of more than 6 months, the lessee, rather than the freeholder, is the person who is liable for council tax in respect of that dwelling.[29]Section 22 of the LGFA imposes a duty on a Listing Officer to compile and maintain a valuation list for the area of each local billing authority. Section 23 of the LGFA requires that list to show each dwelling in each such area, and the valuation band which applies to it.[30]Wilson concerned a dwelling which had been vacant since 2007. It needed repairs. In 2010 the VTE decided that it should not be removed from the list. It held that there was an “absolute assumption” in the legislation that a hereditament was in a reasonable state of repair, which meant that “a dwelling cannot be deleted from the valuation list simply because of disrepair, regardless of the extent of the disrepair”. Singh J held that the VTE had conflated two distinct stages in the analysis: the valuation of a dwelling as a hereditament and the question whether it was a hereditament at all. A point might be reached when a property was so derelict as to be incapable of repair. There is a distinction between repair which is still repair, and the complete reconstruction or replacement of a building. If a dwelling can be repaired, then, even if those repairs would be uneconomic, it is still a hereditament (see paragraphs 40 and 41 of the judgment). Singh J allowed the appeal and remitted the case to the VTE.[31]As Singh J noted, his approach is supported by three pointers in the legislative scheme. They are regulation 6(2)(e) of the Council Tax (Situation and Valuation of Dwellings) Regulations 1992, article 3 of the Council Tax (Exempt Dwellings) Order 1992 and paragraph 2 of Schedule 6 to the LGFA 88.[32]Section 16 of the LGFA confers a right of appeal to the VTE on any person who is aggrieved by a decision of a billing authority that a dwelling is a chargeable dwelling. The powers of the VTE on such an appeal are conferred by regulation 38 of the Appeals Regulations. These are wide.[33]A right to appeal to the High Court in cases where a person is dissatisfied with a decision of the VTE is conferred by regulation 43 of the Appeal Regulations. If an appeal is not made within four weeks of the date of the notice of the decision in question, the court may dismiss it (regulations 43(2) and (3)).

The decision of the Panel

[34]The hearing was on 5 September 2013. The panel recorded that the Appellant was concerned before the hearing that she had not seen the Listing Officer’s presentation pack. The Listing Officer had told the Panel that the pack contained information that the Appellant was aware of. The Clerk to the Panel told the Appellant that she could ask for an adjournment if she needed more time. However, after considering the pack for a short while, the Appellant decided that she wanted to go ahead with the hearing. I asked the Appellant whether this was an accurate account and she said that it was. She also said that she had not, at any stage in the hearing after that, asked for an adjournment. The Panel said, at paragraph 3 of the decision, that it was not intended as a verbatim report of the proceedings. If something was not mentioned, it should not be assumed that it had been left out of account.[35]The Panel recorded the Appellant’s case at paragraphs 4-16 of the decision. The Appellant criticised the Panel’s recording evidence, at paragraphs 10 and 16, that the flat had been flooded in 2004 and that she had not lived in it since then. The flood was in 2000 and she had not lived in the flat since then. I do not consider that this difference is significant. On any view, the Appellant had not lived in the flat for some time. In any event, the Panel appears to have found that the Appellant only lived in the flat until 2000 (decision, paragraph 38).[36]At paragraph 7, the Panel recorded that the Appellant had produced photographs at the hearing, and described what they showed about the condition of the ceilings and the windows. They summarised further her description of the condition of the flat at paragraphs 8, 10 and 13 of the decision. The Appellant agreed that she had produced photographs at the hearing, but said that she could have produced more had she known that the condition of the flat was in issue. She did not, however, ask for an adjournment.[37]The Panel summarised the Listing Officer’s case at paragraphs 15-30 of the decision. The evidence about the inspection in March 2013 was that the heating and most of the electricity were working throughout the flat. It was filled with the Appellant’s belongings, although she did not live there. At paragraph 18 the Panel referred to photographs produced by the Listing Officer. The evidence was that the bathroom needed repairs but had running water. Water seeped through a crack in the window. There were signs of damp but the floors and ceiling were intact. The small kitchen had a sink, worktops and shelving. It needed renovating. The Appellant stored food in the kitchen and it was used. The living room was full of the Appellant’s belongings. The floors and ceilings were sound. The windows needed repairing as the panes were cracked. The bedroom was in a similar condition but also needed repair. The Appellant had pointed out damp areas, but there was a mattress and bedding which looked slept in. No structural defects were seen during the inspection. The Listing Officer’s case was that the flat needed repairs but was not uninhabitable.[38]The Panel recorded the Listing Officer’s argument that for an empty property to be deleted, the Listing Officer must be satisfied that it was sufficiently derelict to be no longer capable of beneficial occupation and had reached a stage where it was beyond the scope of reasonable or normal repair. The flat was in a large block, the building itself was structurally sound and the other flats were occupied. The Listing Officer referred to two decisions of this court: Burke v Broomhead (Listing Officer for Camden) [2009] EWHC 1855 (Admin)and Wilson.[39]The Panel first considered an argument that the Human Rights Act 1998 (“the HRA”) conflicted with the Listing Officer’s case. The Panel did not have power to make a declaration of incompatibility. It had to concern itself with the legislation as it stood.[40]The Panel then referred to section 3(2) of the LGFA and to section 115(2) of the GRA. If a domestic property was derelict or undergoing structural alteration “to the extent that it is neither ready nor capable of beneficial occupation, it will not constitute a dwelling for the purposes of section 3 of the [LGFA]”. The Panel also referred to the decision of Singh J in Wilson.[41]Having taken account of the photographs produced by both sides, the Panel considered that the flat was not derelict, despite signs of major damp. The ceilings and walls were in reasonable repair and the Panel accepted that the flat was structurally sound. The Panel took into account the fact that the flat was in a large block of flats, the building itself was structurally sound and the other flats were currently occupied. The Panel’s conclusion was that the Appellant had not produced any “substantive evidence to support her contention that the [flat] was truly derelict and therefore it remained a hereditament for council tax purposes”.

The application for a review

[42]On 28 October 2013, the Appellant applied to the VTE, under regulation 40 of the Appeal Regulations, for a review of the Panel’s decision. The review decision refers to a letter dated 24 October 2013 from Mr Boggon, which I have not seen. There were three grounds for this application.(1) A document relating to the proceedings was not sent to, or received by, a party.(2) A party or its representative was not present at a hearing and party showed reasonable cause for his/her absence.(3) There had been some other procedural irregularity.[43]The application was considered by the Vice-President of the VTE on behalf of the President. He explained that under ground (1) the Appellant complained that the VTE did not send her any information before the appeal, so that she had no idea what to expect or what she needed to do. This was compounded by the fact that the VTE website was inaccessible, and failed to comply with an unspecified provision of the Equality Act 2010. The Clerk to the VTE had said that the guidance booklet would have been sent to the Appellant with the notice of hearing for March 2013 (that hearing was postponed because the Appellant was ill), and with the September 2013 notice of hearing. The booklet, which is also on the website, says that it can be provided in large print. The website pages may be blown up to larger font and there is a “Browsealoud link”. The Appellant had access to Mr Boggon, and she could ask his professional advice if she had difficulty understanding the guidance documents from the VTE.[44]The Clerk had also said that the Appellant had rung the VTE on 17 January and on 27 August 2013, and had not asked for documents in any different format. Nor did she complain of any disadvantage at the hearing, when she was told that she could ask for an adjournment. The Vice-President did not consider that this ground was made out.[45]The Appellant also complained that she had been given pack of documents, including photographs, only at the hearing. She was offered an adjournment and refused that offer. She said it was not true that all the documents in this pack had been sent to her before the hearing. She did not identify which documents she had not seen before. The Vice-President considered that the Appellant must have been mistaken about this, because the clerk reported that the documents in the pack provided to the Appellant at the hearing had been re-formatted, and that was why they might look different from the documents sent to her previously. The Vice-President did not consider that this ground was made out.[46]The Appellant also raised the point that she had told Mr Boggon not to attend as she had understood that the condition of the flat was “not in issue”. Mr Boggon was not her legal representative, and the Appellant did not understand the legal test to be applied. The Vice-President explained that the test was based on Wilson. In the light of that test, the evidence from Mr Boggon, in his letter of 18 October 2013, to the effect that the flat was not capable of economic repair, was of little help in finding the answer to the correct question. The Panel was entitled to reach the view it did reach on the evidence. The Panel was entitled to find that the flat was structurally sound without expert evidence. The Vice-President noted that Mr Boggon did not say otherwise in his letter of 18 October 2013.[47]The Appellant also complained about the Panel’s approach to her argument based on the HRA. The Vice-President was not in a position to decide whether the Panel had shown “distaste and resistance” about this. The Clerk’s report showed that the Chair interrupted the Appellant by asking for advice on the HRA. The Clerk’s advice (which was not heard by the Appellant who has a hearing definition deficiency) was that the Appellant could make submissions about the HRA but the relevant legislation had to be taken into account. The Clerk did not consider that the Appellant was stopped from making submissions about this. The Vice-President referred to paragraph 32 of the Panel’s decision. The Vice-President considered that while the Panel’s decision could have been clearer, the Panel did not identify any submission from the Appellant which would have required the Panel to delete the flat from the council tax list. The Appellant in her application for a review said that she did not advance an argument based on the HRA because she thought it would be ignored. It is a pity, the Vice-President said, that she did not ask the Clerk to repeat the advice which she did not hear. The Vice-President would have been concerned if a cogent argument had been shut out. But the Appellant failed to explain in her grounds for review which Convention Rights were engaged, or how they helped her argument.[48]The Appellant was wrong to assert that “no time had been allocated for” her hearing. The Clerk reported that parties to a different postponed hearing had attended by mistake, and decided to observe the hearing of the Appellant’s appeal, which was held in public.

The Appellant’s ground of appeal

[49]As I have said, the Appellant relied on three main arguments.(1) The hearing was unfair.(2) The Panel reached the wrong conclusion.(3) If the Panel was right, that outcome was wrong, irrational, and a breach of her human rights.

Was the hearing unfair?

[50]The key point on this argument is that, as the Panel decision records, and as the Appellant accepted when I asked her about it, she was offered an adjournment of the hearing, and refused that offer. The Panel cannot be criticised for continuing with the hearing in that situation, nor can it be criticised for not apprehending that the Appellant might have had reservations about continuing if she did not articulate those, either when she was offered the adjournment, or later in the hearing, if she began to feel such reservations as the hearing went on. If she thought that she would have been helped by having Mr Boggon there, she could have asked for the hearing to be postponed to another date when he could be instructed to attend to give evidence.[51]I note that in considering the application for the review the Vice-President investigated what had been sent to the Appellant and concluded that she was mistaken in saying that the presentation pack had not been sent to her before the hearing. He also considered that the Appellant had had opportunities to find out what to expect from the hearing. I agree with the Vice-President that the Appellant suffered no disadvantage from the absence of Mr Boggon, since there is no possibility (judging from his October 2013 letter) that the evidence which he was able to give would have enabled the Panel to reach a different conclusion on the legal issue which it had to decide.[52]I do not consider that I am in a position to decide what happened about the site view in January 2011, since the materials I have seen about it are incomplete. Even if the Appellant’s factual contentions about this are correct, and if it was unfair of the Listing Officer to reach a view about her application without a site view, I do not consider that this can affect my decision on this appeal. First, the notice of decision told the Appellant that she could get in contact with the Listing Officer if she had any questions about it, and she did not do so. Second she had, and exercised, a right of appeal on the merits to the VTE. On the facts of this case, that was sufficient to cure any unfairness in the way the Listing Officer’s decision was made.

Did the Panel reach the wrong conclusion?

[53]The Panel quoted Wilson. It applied the right legal test, which is, in short, whether the property can be made suitable for occupation as a dwelling by doing a reasonable amount of repair not whether that repair would be economic. On the evidence, the Panel concluded that the flat could be made suitable for occupation if a reasonable amount of repair was done. That was a decision which it was open to the Panel to reach on the evidence before it.

Is that outcome wrong, irrational or a breach of the Appellant’s human rights?

[54]The Appellant feels strongly that if the legislative scheme made the landlord, rather than her, liable for council tax, that would put pressure on the landlord to repair the flat. She considers that the scheme is wrong, and irrational, in requiring her to pay council tax when she is not living in the flat, and there is no point her spending money on repairs if the landlord will not carry out the repairs for which it is liable.[55]I have very limited information about the provisions of the lease, and the landlord was not represented on this appeal. I am not in a position to make any findings about the extent, either, of the landlord’s liability for repairs, or to which it has or has not carried out any repairs. I will assume, for the purposes of this part of the argument, that the Appellant’s contentions are correct, but I cannot, and do not, make any findings on this.[56]The scheme of section 6 of the LGFA is to link liability for council tax to actual occupation of, and to interests in, land, in a hierarchy which imposes liability on the person who is in actual occupation of the dwelling, or if no-one is occupying it, on the person who has the right to occupy it. I do not consider that in a case where the liability for repairs is great (which is the Appellant’s case on this appeal), the imposition of liability for council tax would necessarily put pressure on a landlord to carry out repairs. The council tax at issue might be small in relation to the cost of the repairs. In any event, the decision about who should be liable for council tax when a dwelling, which is subject to a lease for a term of more than 6 months, is not occupied has been made by Parliament. A court has no power to disapply the provisions of primary legislation.[57]For completeness, I should consider whether there is anything in the Appellant’s human rights arguments. I assume in her favour that article 8 and article 1 of the First Protocol are engaged. The Appellant’s complaint, it seems to me, is that the statutory scheme makes her, rather than the freeholder, liable for council tax. Both articles protect qualified rights. In my judgment, the scheme in section 6 of the LGFA is an intelligible and rational scheme. The hierarchy in section 6 shows that Parliament decided that liability should depend on residence in, and rights to reside in, a dwelling. That is an intelligible and rational legislative choice. It connects liability with actual enjoyment of the dwelling, or if no-one is living in it, with the right to occupy it. Such a choice is well within the margin of appreciation. I consider that any interference (if there is any) made by this scheme of liability on the facts of this case with the rights protected by articles 8 and article 1 of Protocol 1 is plainly justified.[58]It follows from that there is no need to interpret section 6 of the LGFA in accordance with section 3 of the HRA. Section 6 can be read, with no difficulty, so as to be compatible with the Appellant’s Convention Rights. It also follows that there are no grounds on which I could make a declaration of incompatibility under section 4 of the HRA.

Conclusion

[59]I dismiss this appeal.