Turner v South Cambridgeshire District Council [2016] EWHC 1017 (Admin)

Case No CO/6559/2015

[2016] EWHC 1017 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

ON APPEAL FROM THE VALUATIONS TRIBUNAL OF ENGLAND

(Case no 0530M 147114/CTR/3)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 05/05/2016

Before

MR JUSTICE WARBY

Between

Paul TurnerAppellant

South Cambridgeshire District CouncilRespondent

Simon Stafford-Michael (instructed under the Direct Access scheme) for Appellant

Richard Hanstock (instructed by South Cambridgeshire District Council) for Respondent

Hearing Hearing date: 28 April 2016

Judgment

Introduction

[1]This is an application by Mr Paul Turner (‘Mr Turner’) for permission to appeal out of time and, if permission is granted, an appeal against a decision of the Valuation Tribunal of England (‘the VTE’) of 8 October 2015. The case concerns Council Tax and, more specifically, the availability of Council Tax Reduction (‘CTR’) for those whose circumstances justify it.

[2]Mr Turner was in receipt of CTR from South Cambridgeshire District Council (‘the Council’) until September 2013, when the Council decided to cancel it. It took that action on the grounds that Mr Turner had failed to provide the information required by the Council in order to continue granting CTR. Mr Turner appealed to the VTE, which dismissed the appeal, concluding that he had indeed failed to provide information reasonably required by the Council, and that the Council’s decision was therefore in accordance with its CTR scheme (‘the Scheme’).

Issues

[3]Mr Turner’s contention in this Court is that the VTE erred in law in reaching that conclusion. At the heart of his case is an allegation that he had provided the Council with all the information it could reasonably require in order to assess, in his favour, his continued entitlement to CTR. All that he had failed to do was to fill in a form. The VTE’s conclusion was therefore wrong. Mr Stafford-Michael, who represents Mr Turner before this court, submits that this is not merely a matter of disagreement with the VTE’s findings of fact; the Tribunal elevated form over substance and the appeal thus raises an issue of law which, in his oral submissions, he has framed in this way: Is a reasonable Valuation Tribunal lawfully permitted to dismiss an appeal on the ground that the appellant has failed to fill in a form provided by the billing authority [ie, the Council], but has otherwise provided all available information required by the billing authority for the consideration of his claim?

[4]That is not quite how the matter was put in the Grounds of Appeal when they were lodged in December 2015; but the Council has not objected to this revised way of putting the case. It has, however, pointed out that the appeal documentation was lodged over two weeks out of time, and that Mr Turner therefore needs as a first step to persuade the court to entertain his appeal out of time. The Council applied by letter to have this appeal dismissed on the papers, arguing that the Denton criteria (of which more later)applied, and that these pointed firmly to the rejection of any application to extend time, and consequently to the dismissal of the appeal. It was also argued in that context that the appeal did not in reality raise any issue of law, and lacked any merit.

[5]The Council’s paper application was rejected, and the matter was put over to this hearing. Mr Turner accepts that his appeal is out of time, but seeks the necessary extension and, so far as necessary, relief against the sanction of dismissal without examination of the merits. In support of the application for relief against sanctions Mr Turner has submitted, half way through this hearing, a witness statement (his third in this appeal). That statement explains the delay in lodging the appeal papers. I have admitted that evidence, despite its lateness, without opposition from Mr Hanstock, who appears for the Council.

[6]In the event, in the unusual circumstances of this case, I have heard argument on both the application and the appeal.

Conclusions

[7]I have reached the conclusion that the appeal should be dismissed on both procedural and substantive grounds. The Denton criteria are applicable, either directly or by analogy. The failure to lodge appeal papers on time was a serious default, as is conceded; there was no good reason for the failure; and in all the circumstances (including the factors mentioned in CPR 3.9(1)(a) and (b)) it would not be right to extend time. One of the relevant circumstances is that the Court’s appellate jurisdiction over the VTE is confined to points of law and, despite Mr Stafford-Michael’s valiant attempts to persuade me otherwise, I do not consider that this appeal raises any arguable point of law. The appeal would have failed on its merits in any event.

[8]The VTE correctly identified the relevant section of the Scheme. This contains a mandatory requirement for a person in receipt of CTR to furnish within one month of being required to do so such documents, information and evidence as may reasonably be required by the Council to determine that person’s continuing entitlement. The VTE did not misconstrue the section. It held that the requests which the Council made to Mr Turner were reasonable, and that Mr Turner failed to provide the information requested. Those findings were open to the VTE both in law and in fact. They did not involve the error alleged by Mr Stafford-Michael, of dismissing the appeal merely because a form was not filled in.

The factual background in summary

[9]There has been some dispute between the parties about some of the details of the factual background, but I am confident on the basis of the material before me that the following is a fair and reasonable account.

[10]At all material times Mr Turner has lived with his wife in Linton, Cambridgeshire. They have been liable to pay Council Tax to the Council. They have been directors of two trading companies: Zenith Cafe Ltd and Zenith Publishing Ltd. It is said that the companies and, through them,Mr and Mrs Turner, were victims of a large-scale fraud which started in about 2003 and was unearthed some while later. Criminal proceedings have been started, and remain active, in respect of that alleged fraud.

[11]The details of the fraud are not important for present purposes. It has never been necessary for the purposes of the issues under discussion in this case to investigate any of that. The issues have at all times been considered on the footing, or at least on the assumption, that the Turners are indeed victims of fraud. It is relevant to state, however, that Mr Turner’s case is that he has over a period of many years been working on the investigation of the fraud, and has been closely involved with the criminal case or cases that have arisen.

[12]A claim for relief from Council Tax was made by Mr Turner in 2006. He and Mrs Turner were assessed by the Council for that purpose, and they were determined to have no or very modest income. In 2006 Mr Turner was assessed as self-employed with nil income. In April 2011 Mrs Turner was assessed as having a business income of £62.00 per annum. These figures were taken to remain applicable thereafter, until the suspension and subsequent cancellation of CTR that is in issue on this appeal. As a result, the couple were in receipt of relief from Council Tax for 6 years, from 2007 to 2013. Initially, relief took the form of Council Tax Benefit (‘CTB’). Latterly, it was in the form of CTR. The distinction, which results from changes which took effect on 1 April 2013, is not material in the context of this case.

[13]The couple also successfully applied for Working Tax Credit (‘WTC’) and for a period of years they remained in receipt of WTC. On 14 August 2013 Her Majesty’s Revenue and Customs (‘HMRC’) informed the Council that the Turners’ claim for WTC had ended. The Council understood this to be because the couple could not provide HMRC with details of their income. There is a dispute about whether that was in fact the reason, and about whether it was this information which prompted the Council’s next steps. But what is not in doubt is what those steps were.

[14]The Council decided to conduct a review of the couple’s financial circumstances, to decide whether it was appropriate for CTR to continue. Information was first requested on 21 August 2013. The deadline expired without a response and the Council decided to suspend CTR. Further correspondence met with responses which the Council did not consider satisfactory, and it decided to cancel CTR with effect from 30 September 2013 on the basis that Mr Turner had not provided information requested. There was further correspondence, and Mr Turner pursued an internal appeal through the Council’s own procedures. When that was unsuccessful he appealed to the VTE.

The VTE hearing and decision

[15]The VTE held a hearing on 8 October 2015. A bundle of relevant documents was before it, prepared by the Council. Mr Turner has complained that this was incomplete, and it was. But I am satisfied that he had an ample opportunity to present his case, and put forward the documentary evidence he wished the VTE to consider. He did attend, and he did present both documentary evidence and oral evidence or argument. A representative of the Council presented its case. The Tribunal chair asked questions of Mr Turner. Mr Turner then left, indicating that as the hearing appeared only to be about filling in a form he did not believe it was true justice.

[16]The Council then stated that it had nothing to add to its case. The Tribunal resolved to decide the appeal on the basis of the evidence presented. It asked the Council representative to confirm whether, if a claim was made that day, and the information required was provided, CTR would be awarded and, if so, from when. The Tribunal was told that if that was done the CTR would be awarded from the Monday following receipt of the claim. The VTE decided that the appeal should be dismissed. There is no allegation before me that the proceedings were unfair, and I do not consider that they were.

[17]On 19 October 2015 the VTE issued a formal Decision Notice containing the following Decision Record:- “Reasons for decision Appeal dismissed. The panel acknowledge and respect that Mr and Mrs Turner have been victims of a major fraud which has caused significant hardship and disruption in their lives. This appeal was solely concerned with the failure to provide the information as requested by the Billing Authority (BA) in August 2013. This information was further requested on numerous occasions and the BA went to great lengths to explain their reason for the request through a series of correspondence. Mr Turner explained that he was unable to provide any information but the panel saw no valid reason as to why a fraud conducted in 2007, no matter how extensive and traumatic, would restrict his ability to provide details of his current income in 2013. Mr Turner said that his and his wife’s circumstances were unchanged from those which had been provided in his previous declaration to the BA. That may or may not be true, however, given that Mr and Mrs Turner were in receipt of working tax credits, the entitlement of which is dependent on a person actively working and obtaining an income from that work, the panel considered it reasonable for the BA to make the request for information in August 2013. Under the terms of the Council Tax Reduction Scheme Mr Turner is required to provide the information as was properly requested by the BA and which Mr Turner failed to comply to. Even now should a properly completed claim form be submitted the BA would be able to consider his entitlement to Council Tax Reduction going forward, however, the BA would not be able to backdate this claim.”

[18]Mr Turner says he did not receive these reasons. He did however receive the fuller reasons which the VTE conveyed to Mr Turner by email on 21 November 2015. They were an expanded version of the summary reasons given on 19 October. It is convenient to quote paras [1], [17] & [18]:

“1. The appeal was dismissed. The panel found that the appellant had failed to provide the information required for the Billing Authority (BA) to continue to award council tax reduction. Therefore the BA had acted in accordance with the council tax reduction (CTR) with effect from 30 September 2013. … 17. In summary, the BA’s CTR Scheme requires the cooperation of a claimant in providing the reasonably required information to the BA. Up to date information about earnings is clearly crucial for the BA in making CTR awards which are appropriate. No benefit or grant scheme can be properly administered unless those claiming comply with the reasonable requirements of the scheme. 18. The panel found that having regard to all the facts in this case, it was their opinion that the appellants had failed to provide the information requested to enable the BA to continue to award CTR in accordance with its local scheme. The appeal was therefore dismissed.”

This appeal The legal framework

This appeal

[19]The statute that makes provision for Council Tax and relief from that tax is the Local Government Finance Act 1992 (‘the 1992 Act’). Until 2013, those in need of relief from Council Tax, given their circumstances, were able to claim CTB, pursuant to regulations made under s 13 of the1992 Act. This regime was replaced with effect from 1 April 2013 by CTR schemes, locally devised, and made under s 13A of the 1992 Act. The Council’s Scheme is one of these.

[20]The key provisions of the Scheme are contained in Rule 72. Of central importance is Rule 72.4 which provides, in its material parts, as follows:

“… a person to whom a reduction under the authority’s scheme has been awarded, must furnish such certificates, documents, information and evidence in connection with the … award, as may reasonably be required by the authority in order to determine that person’s … continuing entitlement to a reduction under its scheme …”

Mr Turner’s CTR was cancelled on the grounds of failure to comply with this mandatory requirement.

[21]Section 16 of the 1992 Act provides for appeals such as this. The court’s jurisdiction on such appeals is governed by the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (SI 2009/2269) (‘the Appeals Regulations’). Regulation 43 of the Appeals Regulations permits an appeal from the VTE to the High Court on a question of law. The Regulation sets time limits for such appeals. It provides, so far as material:- 43.— Appeals to the High Court(1) 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 the VTE on an appeal under section 16 of the 1992 Act …

(2) … an appeal under paragraph (1) may be dismissed if it is not made within four weeks of the date on which notice is given of the decision or order that is the subject of the appeal or, in the case of a section 16 appeal, within two weeks of the date on which written reasons for the decision are given in accordance with regulation 37(6), if later.”

[22]Mr Turner’s appellant’s bundle was lodged on 22 December 2015. It contained Grounds of Appeal identifying what were said to be five points of law. In summary these were(1) an erroneous conclusion that the appellants were self-employed;

(2) a failure to attach weight to a decision of HMRC to reinstate WTC after an investigation;

(3) a wrong conclusion that the self-employed person’s application form must be completed if a person is to be entitled to CTR;

(4) elevating form over substance, and failing to address the substantive question of whether the required information had been provided;

(5) misdirection as to the meaning of the Local Government Act 1992. The Council having objected that these points did not in reality raise any point of law, those five grounds have since been effectively incorporated into, and superseded by, the single issue of law formulated by Mr Stafford-Michael at this hearing, which I have set out in para [3] above.

[23]The Council accepts, rightly in my view, that this is a point of law. It was however correct, in my judgment, to contend that the previous Grounds did not on a proper analysis, identify any issue of law. The Council was also right to point out that, this being an appeal under s 16 of the 1992 Act, the appeal papers were lodged 2 weeks and one day outside the time limit prescribed by the rules. The first issue is therefore whether the court should entertain an appeal out of time.

Relief from sanctions and extension of time

[24]It is clear that Regulation 43 gives the Court a discretion to dismiss an appeal made out of time. The Regulation can be analysed as imposing a time limit which may be extended only if the court in its discretion agrees; or an automatic sanction from which relief must be sought; or as a ground on which the court may in its discretion dismiss an appeal. I do not believe it matters. The general rule is that appeal courts treat an application to extend time for appealing, when brought after the time limit has expired, as equivalent to an application for relief from sanctions under CPR 3.9; the court applies what have become known as the Mitchell/Denton principles. Sayers v Clarke Walker (A firm)

; R (Hysaj) v SSHD

;

. It is common ground that in this case I should adopt that approach, and I agree that is appropriate.

[25]CPR 3.9 provides as follows:- “Relief from sanctions(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.

(2) An application for relief must be supported by evidence.”

[26]The guidance given in Denton v T H White

[2014] EWCA Civ 906

[2014] 1 WLR 3927

is now very familiar. The court said this at [24]:

“…. A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred.

(b) ”

[27]The reference to factors (a) and (b) is a reference to the factors specified in CPR 3.9(1). Here, Mr Turner accepts that the two week and one day delay represents a serious breach, though it is submitted that it is not significant as it has caused no prejudice. The explanation given is an error by Counsel, who wrongly advised that Mr Turner had four weeks to lodge his appeal papers. Counsel’s error cannot amount to a good reason for the two weeks delay. And it does not explain the extra day, of course. As Mr Hanstock points out, no explanation has been offered for that. Mr Turner’s documentation simply stated that he had been told that he needed to seek an extension.

[28]That, however, is not the end of the matter. As the court pointed out in Denton, it is a mistake to think that a serious or significant default for which there is no good reason will inevitably lead to the refusal of relief. The court must always consider all the circumstances, including the two factors specifically identified.

[29]In reaching the conclusion that relief should be refused I have taken account of the plea for clemency advanced on Mr Turner’s behalf. It is submitted that the Council misled the VTE by failing to put all the relevant correspondence before it; that Mr Turner is not personally at fault for the late filing of the papers; that the Council knew well before the deadline that an appeal was in the offing; and that the Council has put in no evidence and shown no prejudice. I do not attach great weight to any of these factors, however. Mr Turner had a full opportunity to present his side of things before the VTE; he must take the consequences of wrong legal advice; there was no need to wait the full four weeks that (in his mind) he was allowed; he failed even to meet that deadline; and prejudice to the opponent is no longer the talisman in this field of decision-making.

[30]I do attach weight to the need to enforce timetabling rules, especially for appeals such as this one which may be brought as of right; to the need to keep matters such as this in proportion; to the fact that the previous history is (as explained below) one of persistent lateness; to the fact that no explanation of the delay was offered until a late stage, and no evidence to explain or excuse it provided until after my prompting at the hearing; and to the fact that this is in at least one sense a second appeal. I also take into account as a significant factor that the appeal, as originally launched, did not raise any arguable point of law. It was, as the Council submits, a thinly disguised attempt to secure a review of the substantive merits of the VTE decision.

The merits

[31]Although the issue that has been belatedly formulated on Mr Turner’s behalf is an issue of law, it is not one that arises on the facts of this case. I reject Mr Stafford-Michael’s submission that, looking at the VTE’s decision as a whole, “it is clear that the Tribunal held that because the form was not completed the appellant had failed to comply with the Council’s requirements.” That in my judgment is a misrepresentation of the Tribunal’s decision. The substance of the VTE’s reasoning was that(1) on the information provided by the Turners their companies were still trading,

(2) the Council had made clear enough that it required accounts or, in their absence, up to date information and evidence of earnings,

(3) those were reasonable requirements, and

(4) Mr Turner had failed to comply. This chain of reasoning is not formalistic. It addresses the particular facts of the case.

[32]Mr Stafford-Michael has two further points based on the terms of the Scheme. Pointing to a requirement in the Scheme for those in receipt of CTR to notify any change in circumstances, he argues that this generates a rebuttable presumption of regularity, such that in the absence of such a notification or some other reason to think otherwise the Council is bound to assume that an individual’s financial circumstances remain the same as previously stated. Here, he submitted, there was no reason to doubt that things continued as before, and it was therefore unreasonable (as a matter of law) for the Council to seek further information. The submission goes beyond the pleaded Grounds of Appeal, and falls outside the ambit of the issue of law formulated at the outset of the hearing. It fails in law, and in fact. No such presumption is expressed in the Scheme, nor can one be implied. It would be an unreasonable implication. On the facts, HMRC’s decision to withdraw WTC indicated a change of status which made it plainly legitimate to enquire.

[33]The other point advanced about the Scheme is that it contains provision permitting the Council to accept information and evidence electronically (section 70) and by telephone (section 71). These are said to be indications that a flexible and relatively informal approach is to be taken. These are, however, powers not duties and they are qualified: the Council may exercise them “where it feels that this would be acceptable given the nature of the claim”. In fact, as will be seen, the Council did accept information electronically from Mr Turner, and the facts do not give rise to any issue about accepting evidence by phone.

[34]The VTE’s conclusion that Mr Turner failed to provide information that it was reasonable for the Council to require has been subjected to sustained criticism, by reference to the correspondence of 2013. Put shortly, I regard this as a misconceived attempt to secure a rehearing on an issue of fact, and I reject it on the evidence. But since considerable time has been spent by Counsel for Mr Turner in taking me through the correspondence I shall provide a fuller response.

The requests and Mr Turner’s responses

[35]The initial request for information was made in a short letter written to Mr Turner by Susan Tufnell of the Council’s benefits team, dated 21 August 2013. She identified three items of “documentary evidence … required to assess your … [CTR] entitlement”: a form “in respect of your self-employment for year ending April 2013”; P60s “for both private pensions”; and “proof of both private pensions for April and May 2013”. The form contained a declaration that the information given was correct and complete acknowledging (among other things) that if it was not “you may take action against me”. The letter stated that original documents were required, and set a deadline of 21 September 2013. It warned that if that deadline was not met “your entitlement may be affected”.

[36]Mr Turner did not meet the deadline. There was a reminder letter on 4 September, but by 25 September he still had not responded at all. CTR was suspended. Reliance is placed on Mr Turner’s behalf on an email he sent on 7 October 2013. This was twelve days after the expiry of the deadline. The email was written to a Mr Cookson at HMRC. It was very long. It related to WTC. In it Mr Turner protested vigorously at the suspension of that benefit, complaining that there was information he could not give because of the criminal proceedings. The email did make reference to CTR. It asserted that “as a direct consequence” of the WTC suspension the council had suspended the couple’s CTR “pending information they now require – which would again require us to give details of the criminal case.” The email also said the couple’s “financial circumstances have not changed in the last year” and asserted that WTC “are our only form of regular income”. A detailed explanation was given of how this had come about, the core of which was that the couple had suffered due to the fraud, had been struggling for years to re-establish their financial position, and now, despite being victims, were being persecuted by the state.

[37]This email was not addressed to Ms Tufnell, but it was copied to her, and to another Council officer with some responsibility in the matter of CTR. It could not be said to meet what had been sought by the Council, however. The statement that WTC was the couple’s only form of regular income was not accurate. The couple had been and were still receiving pension income. Mr Stafford-Michael points out that this was apparent, if the Council had read an earlier email from Mr Turner to HMRC which was attached to the email of 7 October. The earlier email, sent in July 2013, had said “Our only regular income is the tax credits … and a small pension of £32.00 per month” (emphasis added). That was not wholly accurate, either, as it turned out. When Mr Turner produced copy P60s and payment advices for the pensions, which he did on 4 November 2013, these did show one private pension of £32.13 per month, but they also showed an annual pension from another source of £127.92. The 7 October email did not attach those documents, or any other documentary evidence of the pension income. Nor did it provide the form sent to Mr Turner by Ms Tufnell, or any of the information requested by that form. Nor did it contain any form of declaration of accuracy and completeness.

[38]On 9 October 2013 Ms Tuffnell wrote to Mr Turner, confirming that his claim had been suspended because documents previously requested had not been provided. That was unquestionably an accurate statement of the position at the time. On this occasion Ms Tufnell asked Mr Turner to provide “accounts for both you and your partner’s business for the last trading year”, together with the pension documents previously requested. This letter therefore appears to have taken account of what had been said in the 7 October email. The requirement was clear. The deadline set was 25 October 2013. Mr Turner was warned that if the documentation was not received by then “your claim will be cancelled”.

[39]Mr Turner did not provide any of the documentation by the deadline. He did not write to the Council direct at all. He did persuade DI Tim Hurley of Thames Valley police to email HMRC on 21 October 2013, with a copy to the Council. But this email did not provide any of the requested information. It said that the Turners had been interviewed as witnesses and were considered “potential victims” of a corrupt relationship between a bank employee and another person, both of whom had been charged with criminal offences. DI Hurley frankly confessed, however, that he was confused as to why this might be relevant to HMRC’s decision-making. As Mr Turner’s Counsel has conceded, it was not in fact relevant to the Council’s decision-making. Mr Turner had failed to draw any proper distinction between what was relevant to HMRC’s enquiries, and what the Council needed for its purposes. He had failed to provide what the Council had asked for. The criminal proceedings presented no obstacle to his doing so.

[40]Ms Tufnell did not just ignore DI Hurley’s email, however. On 23 October 2013 she emailed Mr Turner, confirming that her enquiry had never been to do with the fraud. She stated that his income apart from Tax Credits had not been reviewed since 2011, and that she needed to know that the income his claim was based on was correct. She asked again for information, seeking once again completion of the form for self-employment, and the pension information previously requested. On this occasion she made clear that even if Mrs Turner had earned nothing the form still needed completion. She asked for the date Mrs Turner ceased trading. She said “If you have not earned anything, confirm in writing and provide your company accounts. If your limited company has ceased trading, please provide proof.” The deadline set this time was 5 November 2013. In other words, the Council unilaterally granted an 11-day extension of its previous deadline. It did not need to do this.

[41]Mr Turner did respond within the extended deadline set by the Council, but only at the last minute. He sent a six paragraph email on 5 November 2013, attaching a three-page letter dated the previous day, which in turn enclosed a PDF copy of various pension documents. It is common ground that so far as pension records are concerned the pdf contained what the Council had been asking for since 21 August, albeit the originals were not provided. There is a dispute over the adequacy of the remaining disclosure. In my judgment it was not adequate.

[42]Mr Turner’s letter said this:

“As the cover up has been perpetrated against us, our Business and our ability to earn our livelihood for over 6 years, we have not been able to properly and fully trade our Business – although it does remain ‘operational’… we do not have the means to prepare accounts nor is there any reason given the meagre income we have been forced to survive on over the entire period. We do not have any ‘Accounts; which we can send to [the Council].”

[43]This was not confirmation that nothing had been earned. It was not confirmation that the companies had ceased trading. As Mr Hanstock points out, this wording (and the letter as a whole) indicated that the companies were and had been still trading. The natural conclusion would be that some form of income was being earned. No accounts were produced. In answer to a question from me Mr Stafford-Michael accepted, rightly, that the preparation of accounts for these companies was not a task that required the expense of an accountant, or one that needed to take up much time, if the position was nil income nil expenses. Company law requires the provision of accounts. Apparently these companies have not filed any for years, and yet have been allowed to remain on the register.

[44]In any event, if there were no accounts, the form that had been provided by Ms Tufnell catered for the situation. Part 3 was headed “About your business income”. It asked whether the claimant had “any prepared accounts (audited or not)”. If not, Part 4 was to be filled in. This contained a simple pro forma on which the claimant could enter sales income, VAT refunds, closing cost, cost of sales, VAT paid out and opening stock; thus producing a profit before tax figure. Provision was made for details of expenses to be provided. The whole exercise could be completed by filling in two double-spaced pages. Any competent business person could complete such a form, in fairly short order, given their records. The less complex the business, and the less activity it undertook, the simpler the exercise would be. The document also asked for “your business bank account statements for this period”. None of this was done by Mr Turner.

[45]The riposte on behalf of Mr Turner has been a robust assertion that this form was absurdly inappropriate, because it asked for information about “earnings if you are self-employed” and the fact was, as the Council knew, that the Turners’ income came from a company or companies which employed them. This is a bad and unfair point, for several reasons. One is that, as it made clear in its written submissions for the VTE appeal, the Council had been proceeding since 2006 on the basis that Mr Turner was self-employed. He now says that was not his fault, but that is not an argument that is fairly open to him at this stage. It was clear from the Council’s written statement of facts to the VTE that it had been acting on this basis, and Mr Turner did not take the point then, or not clearly. Nor (perhaps more importantly) is it a point he made at the time, in November 2013.

[46]The evidence is that he had no such point in mind at that time. That is clear enough from the words I have quoted at [40] above. Moreover, the letter of 4 November 2013 went on to give a further and entirely different excuse for not completing the form. It was this:

“we are unable to fill in the form as it involves disclosing information that is both contested by us, and is also sub judice”

. No explanation has been offered of what this meant, or why it might have been justified. Mr Stafford-Michael has not sought to support this as an excuse for failing to provide accounting information. As I have said, the criminal proceedings posed no obstacle to compliance with the Council’s requests.

[47]On 6 November 2013 Ms Tufnell wrote to Mr Turner stating that his claim had been cancelled “because you have not provided the additional information requested”. That, in my judgment, was an entirely unobjectionable conclusion. It was true. Later the same day Ms Tufnell wrote again, reconfirming that the claim had been cancelled with effect from 30 September 2013, the date of its original suspension. By this time, Ms Tufnell had evidently taken account of the 5 November email and its attachments. She confirmed that her decision had been made “based on the fact that you are unwilling to provide a formal written declaration of you and your wife’s income from your limited company and from her self-employment. As such I can no longer accept that your claim is valid.” These are the decision letters, setting out the conclusions against which Mr Turner appealed to the VTE.

[48]The conclusion that Mr Turner was “unwilling” to provide the specified information has been attacked by Mr Stafford-Michael, but it seems to me to be a reasonable inference from Mr Turner’s behaviour over a period of months which could properly have been interpreted as deliberately obstructive. Counsel has also invited me to conclude that later correspondence between Mr Turner and the Council serves to show that its cancellation of his CTR was unreasonable, with the consequence that the VTE’s dismissal of the appeal was unlawful. I cannot accept those submissions. The challenge launched by Mr Turner related to the decision to cancel CTR. That decision was made on 6 November 2013. Later decisions might in principle have been the target of a further appeal, or a judicial review challenge, as appropriate. But the ambit of the appeal to the VTE, and of this further appeal, must be confined.

[49]What is material about the later correspondence is that it tends to undermine Mr Turner’s case on this appeal. It has been submitted that it was or should have been obvious to the Council that the companies were without any income, and that the Turners were consequently earning nothing from their employment by the companies. But in a letter about WTC which Mrs Turner wrote to HMRC on 6 February 2014, to which Mr Stafford-Michael drew my attention, she disclosed that during the year to 5 April 2013 Zenith Publishing and Zenith Café – music businesses - were in receipt of PRS, PPL and MCPS payments (which included “my personal royalty payments”), and that Zenith Publishing also received occasional royalty payments from an online company. The sums referred to were modest, but that is not the point, or at least not the entire point. Discrepancies such as these are at odds with the central argument for Mr Turner, that the Council had been given accurate and complete information and evidence to the full extent that it could reasonably have required.

[50]Mr Stafford-Michael has acknowledged that some might regard some of his client’s correspondence as “ranting”. But he submits that Mr Turner was a man under pressure, through no fault of his own. His behaviour in his dealings with the Council was at times that of a “square peg in a round hole” but, said Mr Stafford-Michael, he needed talking to sensibly, rather than being peppered with computer-generated letters such as those deployed in this case. These were attractively presented submissions, with which I have some degree of sympathy. The Council’s correspondence on the matter is not flawless. It is possible that a different way of dealing with the issue might have yielded better results.

[51]But that is a long way from a conclusion that the Council behaved irrationally, or unreasonably, let alone so unreasonably that no other conclusion was open to the VTE. Mr Turner has not come close to demonstrating that. The form/substance dichotomy relied on is misleading. The form used here and the correspondence both asked for information of substance, and supporting evidence, which was not provided by Mr Turner. It is perfectly legitimate for the Council to take a fairly strict position on tax matters. Not everyone is wholly honest all the time about all tax matters. Clarity and precision are of high importance, if the law is to be properly enforced. It is reasonable to say in this context, as in others, that there is an important difference between assertion and evidence; and that due verification of information provided is of critical importance.

[52]In the end, the position is this. The Council made some relatively straightforward requests for information, evidence, and verification. They were clear enough, and could without any real difficulty have been complied with in full and on time. The VTE was fully entitled to conclude that they were reasonable requests, and it had an ample basis for finding that they were not met.

[53]The outcome is that the extension of time is refused and the appeal is dismissed. If I had granted relief against sanctions and an extension of time I would have affirmed the Tribunal’s decision.