Sabesan v London Borough of Waltham Forest [2018] EWHC 2373 (Admin)

Case No CO/1472/2018[2018] EWHC 2373 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE VALUATION TRIBUNAL FOR ENGLAND
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11 September 2018
Before
EDWARD MURRAYsitting as a Deputy Judge of the High Court
Between
SHANMUGANATHAN SABESANAppellantLONDON BOROUGH OF WALTHAM FORESTRespondent
Mr David Sawtell (direct access) for Appellant for The Respondent did not appear and was not represented.Hearing Hearing date: 30 August 2018
JudgmentEdward Murray sitting as a Deputy Judge of the High Court :
[1]This is an application by Mr Shanmuganathan Sabesan for an extension of time to appeal and, if the extension of time is granted, an appeal against the decision dated 12 October 2017 of Mr M F Young, acting in his capacity as Vice-President of the Valuation Tribunal for England (“the VTE”), in which he refused to authorise Mr Sabesan’s appeal to the VTE of a decision of the London Borough of Waltham Forest (“LBWF”), as billing authority, imposing liability for council tax on Mr Sabesan in respect of a freehold property owned by him at 53 Rosebank Grove, London E17 6RD (“the Property”). Mr Sabesan’s appeal of that decision to the VTE was made under section 16 of the Local Government Finance Act 1992 (“the 1992 Act”), but, before it could be heard, the appeal required authorisation by the President of the VTE under regulation 21(6) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (SI 2009/2269) (“the 2009 Regulations”) because the appeal was made out of time.[2]LBWF had notice of this hearing but declined to attend or to be represented on the basis that, in relation to the appeal against the VTE, it had nothing to add to the reasons given by Mr Young for refusing to authorise that appeal. Its attendance would not therefore be necessary and would not be an efficient use of resources.

Factual background

[3]Mr Sabesan has owned the freehold of the Property since 1 September 1990. It is his case that at all material times he has demised the Property to tenants and has never resided there himself. In 2001 LBWF designated the property a “house in multiple occupation” (“HMO”), falling within Class C of the classes of chargeable dwellings prescribed for the purposes of section 8(1) of the 1992 Act, which is concerned with liability for council tax in prescribed cases. The classes prescribed for these purposes are set out in regulation 2 of the Council Tax (Liability for Owners) Regulations 1992 (SI 1992/551). The effect of this designation was that Mr Sabesan became liable for council tax in respect of the Property, notwithstanding that there were tenants in occupation.[4]Mr Sabesan states that he was not aware of LBWF’s decision in this regard until 2015. LBWF disputes this in light of earlier correspondence with Mr Sabesan and with solicitors acting on his behalf, in relation to the Property. It is not necessary to resolve that factual dispute for present purposes. On 16 August 2016 Mr Sabesan wrote to LBWF contesting his liability and the designation of the Property as an HMO. On 6 September 2016 LBWF wrote to Mr Sabesan refusing to review the decision taken fifteen years earlier to designate the property as an HMO. The letter continued:
“You have the right to Appeal this decision. To do so you must make an application to the Valuation Tribunal Service within 2 months of the date of this letter. If made later than 2 months the Valuation Tribunal Service may ask for the reasons for the late appeal and refuse your application if they deem the reasons unsatisfactory. The Valuation Tribunal Service is an independent body set up in order to resolve disputes of this kind. They will set a date for a hearing whereby both parties will provide evidence to substantiate their claims. A decision will then be made based on that hearing.”
[5]The LBWF’s letter provided contact details for the VTE and reminded Mr Sabesan of his obligation to pay the amounts of council tax demanded by the LBWF, notwithstanding his appeal, and that he would be refunded any overpayment to the extent the appeal was successful. Mr Sabesan received the letter on 12 September 2016. He was therefore on notice from that date that he needed to file his appeal with the VTE within two months.[6]Before Mr Sabesan received the LBWF’s letter of 6 September, he had commenced a challenge to the LBWF’s decision to designate the Property as an HMO in the Thames Magistrates’ Court. On 6 December 2016 Mr Sabesan asked the Thames’ Magistrates court to adjourn the hearing listed on that date so as to allow him to make his appeal. His application was refused.[7]Mr Sabesan filed his appeal with the VTE on 14 February 2017, three months after the deadline to which his attention had been drawn in LBWF’s letter of 6 September 2016. When Mr Sabesan filed his appeal with the VTE, he also filed an application for extension of the time limit for making the appeal.[8]Mr Young rejected the request for an extension of time to appeal in his written decision dated 12 October 2017. For the purposes of that decision, Mr Young considered that 14 November 2016 was the last day on which the appeal could have been received by the VTE and still be in time. Accordingly, the appeal was filed three months late.[9]On 1 November 2017, Mr Sabesan requested a review of the decision by the President of the VTE, under regulation 40 of the 2009 Regulations. Regulation 40 stipulates that such a request must be made within 28 days of the relevant decision, as in this case it was. Mr Gary Garland, the President of the VTE, in a letter dated 28 November 2017 notified Mr Sabesan that he was rejecting his request for a review under regulation 40 on the basis that he found no material irregularity in the way the decision of Mr Young had been made. On 5 December 2017 Mr Sabesan wrote to Mr Garland contesting that decision and making additional submissions. On 14 December 2017 Mr Garland replied to Mr Sabesan confirming his earlier decision and indicating that he would not engage in further correspondence on the matter.[10]This appeal relates to Mr Young’s decision of 12 October 2017 and not to the decision made by Mr Garland not to conduct a review of Mr Young’s decision.

Statutory background

[11]Mr Sabesan’s appeal to the VTE was made under section 16 of the 1992 Act, but was not initiated within the two-month period specified in regulation 21(2) of the 2009 Regulations, which is applicable to his case. Regulation 21(2) provides that the time limit for an appeal to the VTE under section 16 of the 1992 Act is two months where the condition in section 16(7)(a) of the 1992 Act is satisfied, namely, where the appellant has been notified in writing by the relevant authority (in this case, LBWF) that his grievance (in this case, his objection to liability for council tax in respect of the Property having been imposed upon him) is not well—founded, but the person remains aggrieved. The notification satisfying this condition was the letter dated 6 September 2016 from LBWF to Mr Sabesan, which I have already described.[12]Under regulation 21(6) of the 2009 Regulations, the President of the VTE may authorise an appeal to be entertained where the President is satisfied that the failure to initiate the appeal within the two-month period “has arisen by reason of circumstances beyond that person’s control”. Part 2 section PS1 (Extensions of time for making appeals) of the Consolidated Practice Statement for the Valuation Tribunal for England 2017 (as amended), effective 1 July 2017 (“the VTE Practice Direction”), deals with extensions of time for making appeals. Under paragraph 4 of section PS1, an application under regulation 21 will be considered by or on behalf of the President by a “Senior Member” of the VTE, which term includes a Vice-President. In this case, Mr Sabesan’s application under regulation 21 was considered by Mr Young, who, as I have already mentioned, is a Vice-President of the VTE. Mr Sabesan requested a review by the President of the VTE of Mr Young’s decision under regulation 40 of the 2009 Regulations. His request was rejected, as I have already described.

Extension of time to appeal the decision of the VTE

[13]Dealing first with the application by Mr Sabesan for an extension of time in relation to his appeal to this Court, regulation 43(1) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (“the 2009 Regulations”) provides that an appeal lies to the High Court on a question of law arising out of a decision made or order given by the VTE on an appeal under section 16 of the 1992 Act. Subject to qualifications not applicable to this case, regulation 43(2) provides that an appeal under regulation 43(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”.[14]The date of the decision of Mr Young that is the subject of this appeal is 12 October 2017. No point is made by Mr Sabesan as to when he had notice of it, which presumably was within a day or two of when it was issued. Assuming he had notice of the decision on 14 October 2017, his appeal to this Court should have been filed by mid-November 2017. His appeal was in fact filed on 12 April 2018, five months late. His Appellant’s notice requested an extension of time for filing of his appeal notice, and the form clearly indicates that his reasons for the delay and the steps he had taken since the decision he was appealing should be set out in Section 11 of the form, however Mr Sabesan left that section blank.[15]I understand from Mr David Sawtell, counsel for Mr Sabesan, that he had assisted Mr Sabesan in completing the Appellant’s notice, and that he had asked Mr Sabesan to complete Section 11 of the form before signing and filing it. Mr Sawtell had assumed that Mr Sabesan had done so, and referred the Court in his skeleton argument to that part of the form for Mr Sabesan’s reasons why the appeal was lodged out of time, on the assumption that Mr Sabesan had complied with his advice. Shortly before the hearing of this application, a lawyer in the Administrative Court Office noticed the absence and emailed Mr Sabesan requesting his reasons for the delay as a matter of urgency. None were received before the hearing.[16]At the hearing, Mr Sawtell explained that Mr Sabesan had assumed that the form was complete and had signed and filed it on that basis. When preparing his skeleton argument, Mr Sawtell had assumed that Mr Sabesan had followed his advice in relation to completion of Section 11. At the hearing, through his counsel, Mr Sabesan offered to provide a witness statement setting out his reasons for the delay in filing the appeal. I accepted the offer, allowing a short adjournment for the statement to be prepared, so that I could have proper regard to those reasons. I am conscious that the LBWF will not have been served with the witness statement, but as it relates to my consideration of the application for an extension of time in relation to this appeal, and does not go to the substantive grounds of Mr Sabesan’s appeal against the VTE, it seems to me unlikely that LBWF would have had any representations to make on that evidence.[17]I summarise Mr Sabesan’s reasons for the delay in filing his appeal to this Court as follows: i) After he had received Mr Garland’s decision not review Mr Young’s decision of 12 October 2017, he continued to pursue his claim for relief from his council tax liability through proceedings at the Thames Magistrates’ Court. ii) He was waiting for a reply from the Council to agree to extend time, so he made another application to the Magistrate’s Court to set aside the liability orders made against him in respect of council tax. That application was heard on or about 13 February 2018. It was dismissed on the basis that he had waited too long to bring the action. iii) He wrote to the High Court “a normal letter” about that time about this matter, “but they said they could not deal with the matter in a letter back to me”. iv) He attempted again to appeal LBWF’s decision to impose council tax liability on him to the Thames Magistrates’ Court, but another District Judge rejected the appeal. v) In mid-March Mr Sabesan approached Mr Sawtell through his clerk for a fee quotation. Upon receipt of the quotation, he was not in a financial position to accept immediately as he was paying his council tax arrears to LBWF and was also in financial hardship. He was able to pay counsel’s fee by the last week of March 2018. Mr Sawtell emailed the paperwork to him on 4 April 2018 asking him to complete 11. Mr Sabesan “misunderstood this and overlooked this”.[18]The question arises as to what principles govern my exercise of the discretion referred to regulation 43(2) of the 2009 Regulations, which, as already noted, provides that the appeal “may be dismissed if it is not made within four weeks” (emphasis added). Mr Sawtell contrasted this language with the language of regulation 21(2) of the 2009 Regulations, which says that the VTE “shall dismiss an appeal ... unless the appeal is initiated within two months” (emphasis added). This is, as already noted, subject to regulation 21(6), which provides a specific mechanism for relief to be granted by the President of the VTE from the effect of regulation 21(2). There is no such specific mechanism in relation to regulation 43(2).[19]Mr Sawtell referred me to the case of Jagoo v Bristol City Council [2017] EWHC 926 (Admin), a decision of Mr Justice Holroyde (as he then was), which also concerned an appeal to the High Court under regulation 43 in respect of a decision of the VTE relating to Ms Jagoo’s council tax liability assessed by Bristol City Council (“BCC”). In that case, Ms Jagoo did not file her appeal until more than four weeks after the date of the VTE’s decision. She had made clear her desire to appeal, but she did so “by an inappropriate procedure”. Holroyde J found that there was no prejudice to BCC as a result of her delay in commencing the correct procedure. He continued as follows at [4] of his judgment:
“It is unnecessary to go into the details of the submissions which were made as to how the court should exercise the discretion granted by [regulation 43(2)]. Both parties submitted, and I accept, that the test set out in Denton v TH White (De Laval Ltd, Part 20 defendant) (Practice Note) [2014] 1 WLR 3926 was not directly applicable to the circumstances of this appeal. It suffices to say that [counsel for Ms Jagoo] advanced a number of reasons why the appeal should be heard, and [counsel for the BCC] very fairly indicated that the respondent adopted a neutral stance. It was in my view clear that this was an appropriate case in which to allow the appellant to proceed, and I therefore permitted her to do so.”
[20]It does not appear, however, that Holroyde J’s attention was drawn to the case of Paul Turner v South Cambridgeshire District Council [2016] EWHC 1017 (Admin) in which Mr Justice Warby was also considering an application for an extension of time to appeal under regulation 43 of the 2009 Regulations, and in which Warby J concluded at [7] that “[t]he Denton criteria are applicable [to such an application], either directly or by analogy”. Having applied the Denton criteria, namely, the three stage process set out at [24] in the Denton case, Warby J concluded that the extension of time should not be granted. The circumstances of this case are different, but I note in passing that the appeal in the Turner case was only just over two weeks late.[21]Warby J says the following at [24] on the question of the principles that apply to an application for an extension of time under regulation 43 and the question of relief from sanctions:
“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 from CPR 3.9; the court applies what have become known as the Mitchell/Denton principles. Sayers v Clarke Walker (A firm) [2002] EWCA Civ 645, [2002] 1 WLR 3095; R (Hysaj) v SSHD [2014] EWCA Civ 1633; [2015] 1 WLR 2472. It is common ground that in this case I should adopt that approach, and I agree that is appropriate.”
[22]Mr Sawtell noted that in each case the parties had agreed on the approach that should be taken to the exercise of the discretion under regulation 43 and that the judge in each case had adopted and applied that consensus approach. He urged me to follow Jagoo on the basis that the use of the words “may be dismissed” indicates that the time limit in regulation 43(2) is not an “absolute bar” and therefore there is no sanction in the 2009 Regulations for a late appeal to the High Court. It is not appropriate to take the Denton approach, which applies to an appeal brought under the CPR 52 in relation to an ordinary civil claim. Here is a separate statutory regime, in relation to which the wording of the regulation 43(2) indicates that a less stringent approach should be taken. According to Mr Sawtell, Holroyde J appears to have accepted this in the Jagoo case.[23]My difficulty with the Jagoo case is that Holroyde J did not indicate what factors led him to conclude that the approach set out in Denton was “not directly applicable to the circumstances of” that appeal or which reasons he found compelling as to why the appeal should be heard. I also note that the Hysaj case does not appear to have been considered or referred to in argument, although it may be that it was considered unnecessary to do so if the case was clearly outside the so-called Mitchell/Denton principles. I have already noted that Holroyde J’s attention does not appear to have been drawn by counsel to the earlier case of Turner.[24]While, with respect, not questioning the result in the Jagoo case, it seems to me, again, with respect, that the approach taken by Warby J in the Turner case is the correct one. I can see no reason why a less rigorous approach should be taken. I do not consider that there is anything in the argument that the words “may be dismissed” used in regulation 43 of the 2009 Regulations, in contrast to the words “shall dismiss” used in regulation 21(2) coupled with a specific relief from sanction provision in regulation 21(6), indicate that a less stringent approach should be taken in relation to an application for an extension of time under regulation 43. It is appropriate that the 2009 Regulations, which are concerned with the appellate jurisdiction of the VTE, should have more detailed rules in relation to such appeals, while a reference to appeal to the High Court should recognise that the High Court retains discretion in relation to the granting of an extension of time. Nonetheless, that discretion must be exercised by reference to principle.[25]I believe that the correctness of the approach taken by Warby J in Turner as set out at [24] of his judgment in that case is reinforced by the general approach taken by the Court of Appeal to the question of compliance with procedural rules applicable to tribunals in BPP Holdings Ltd v Revenue and Customs Commissioners (Practice Note) [2016] EWCA Civ 121; [2016] 1 WLR 1915. In relation to an application for extension of time in the context of tribunal proceedings, Lord Justice Ryder in BPP Holdings case referred at [44] to the judgment of Mr Justice Morgan, sitting in the Upper Tribunal Tax and Chancery Chamber in the case of Data Select Limited v HMRC [2012] STC 2195, where Morgan J applied CPR 3.9 by analogy to the application for extension of time made by HMRC in that case. The Data Select case, of course, pre-dates the Denton and Hysaj cases, but it indicates a consistent approach.[26]Applying, then, the three stage process summarised at [24] in the Denton case: i) First stage - seriousness and significance of the failure to comply with the deadline: Mr Sabesan filed his appeal five months late. That is a serious and significant delay, as Mr Sawtell rightly conceded. ii) Second stage - why the default occurred: none of the reasons advanced by Mr Sabesan in his witness statement handed up during the hearing comes close to providing an acceptable reason for a failure to file within the deadline, much less a delay of five months in doing so. Mr Sabesan’s financial difficulties are, of course, unfortunate and attract sympathy, but cannot of themselves excuse a delay of five months. This is particularly so given that the letter dated 6 September 2016 sent to him by LBWF and received by him on 12 September 2016 was quite clear as to the correct route of appeal, namely, to the VTE, and as to the deadline. iii) Third stage – the need to evaluate “all of the circumstances of the case, so as to enable [the Court] to deal justly with the application, including factors (a) and (b) of Rule 3.9”, which apply by analogy if not directly. Factors (a) and (b) of CPR 3.9 require me to have regard to the need for litigation to be conducted efficiently and at proportionate cost, and to consider the need to enforce compliance with rules, practice directions and orders. Mr Sawtell’s submissions in relation to this third stage were that Mr Sabesan was not someone who was sitting on his hands or who had gone to sleep on his rights. As his witness statement makes clear, he was trying to assert his rights, but he was confused as to how to do so, and he had “become lost in the forest”. Having regard to all the circumstances of the case, including the factors I have mentioned, I find that there is no basis on which I can justify granting an extension of time in this case.[27]Accordingly, I conclude that it is not appropriate to allow an extension of time to appeal in this case. The appeal is therefore dismissed.

The merits of the appeal against the VTE

[28]Having dismissed the appeal for the reasons I have given, it is not necessary for me to consider in detail the submissions made by Mr Sawtell on behalf of Mr Sabesan in respect of his appeal against the decision of the VTE dated 12 October 2017. It may, however, be helpful to indicate that, had I reached his appeal, I would have dismissed it on substantive grounds.[29]As I have already noted, in relation to the appeal under regulation 43(1) I am concerned only with a question of law. I am not concerned with a reconsideration of the merits of Mr Sabesan’s application to the VTE that he should be permitted to pursue his appeal against the LBWF despite his failure to file that appeal within the two-month period applicable under regulation 21(2).[30]As noted by His Honour Judge McKenna, sitting as a Deputy High Court Judge, in the case of Vaughan v Valuation Tribunal [2013] EWHC 1885 (Admin) at [12], which concerned an appeal to this Court under regulation 43:
“It must be established that the conclusion of the Tribunal was irrational in the sense that there was no evidence to support it, or that the Tribunal had taken into account irrelevant matters or left out of account matters which it should have taken into account.”
[31]In relation to Mr Sabesan’s application to the VTE for an extension of time to appeal, Mr Young needed to decide whether Mr Sabesan’s failure to initiate his appeal to the VTE within the relevant two-month period had arisen “by reason of circumstances beyond [his] control”, as required by regulation 21(6) of the 2009 Regulations. Mr Young concluded that Mr Sabesan had failed to show that his failure was due to circumstances beyond his control. He also concluded that, having been informed of the right of appeal and the time limit by LBWF in its letter of 6 September 2016, Mr Sabesan failed to act “with all reasonable speed in the circumstances of this case” in filing his appeal.[32]The grounds of appeal were as follows: i) Mr Young failed to give adequate weight to Mr Sabesan’s continuing confusion as to the correct avenue for an appeal. ii) Mr Young gave undue weight to the letter of 6 September 2016 in setting out the correct method in which to bring an appeal. iii) Mr Young imported a test, namely one of “acting with all reasonable speed” that is not part of the test under regulation 21(6) of the 2009 Regulations.[33]The broad thrust of Mr Sawtell’s submissions in relation to (i) and (ii) was that: i) The law as to how an appeal against a local authority’s imposition of liability for council tax is seriously unclear. In this regard, Mr Sawtell relied on the judgment of Robin Hollington QC in the case of Okon v London Borough of Lewisham [2015] EWHC 864 (Ch), where at [28] he said the following: “By way of postscript, I would add that this case has demonstrated to my mind the substantial degree of uncertainty that exists so far as concerns how the courts, both magistrates and the bankruptcy county court, should deal with the enforcement of domestic council tax liability orders in the context of the availability of the remedy by way of appeal to the Valuation Tribunal.” ii) The judge went on in his judgment to refer to a couple of High Court cases that provide some assistance in relation to these issues, but do not appear to be sufficiently well-known. It is not necessary for present purposes to go further into that. Mr Sawtell relied on this judicial observation to support his submission that the law in this area is so unclear that Mr Sabesan’s confusion in relation to the approach he should pursue amounted to circumstances beyond his control. As to the letter of 6 September 2016 from the LBWF to Mr Sabesan, it arrived after he had commenced his renewed challenge in the Magistrates’ Court and therefore too late to cut through his confusion.[34]As noted by Ryder LJ in BPP Holdings at [40]:
“Matters of weight are for the first instance tribunal, subject to an overall test of Wednesbury unreasonableness: see Associated Provincial Picture Houses v Wednesbury Corpn [1948] 1 KB 223.”
[35]In my view, the matters complained of in the first two grounds of appeal do not give rise to a question of law. These were matters for Mr Young, and I cannot substitute my judgment for his in that regard. Wednesbury unreasonableness does not arrive.[36]As for the third ground of appeal, Mr Young in referring to Mr Sabesan’s failure to act “with all reasonable speed in the circumstances of this case” was mentioning a factor listed in paragraph 7 of Part 2 section PS1 of the VTE Practice Direction as one of the factors that the President or a Senior Member (such as a Vice-President) acting on behalf of the President will have regard to in determining the application. Mr Sawtell considers that this imports a test that exceeds the requirements of the statutory test, which is concerned only with “circumstances beyond the control” of the applicant.[37]Another interpretation of that factor, which is consistent with the statutory test, is that where an appellant has acted “with all reasonable speed” and is nonetheless late in filing the appeal, that will be a factor in favour of the appellant that may tip the decision in his or her favour in a close case. It is indicative that the delay was due to circumstances beyond the control of the applicant, because, despite acting with all reasonable speed, the application was nonetheless late. Under that interpretation, whether the applicant has acted with all reasonable speed is not an independent hurdle with which the appellant must comply, but merely a factor to be considered by the President of the VTE or his delegate in determining the application.[38]It seems to me, in any event, that Mr Young’s finding that Mr Sabesan did not act “with all reasonable speed” stands independently of his finding that Mr Sabesan’s failure to make the appeal in time did not arise because of circumstances beyond Mr Sabesan’s control. Ultimately, I find that there is no public law basis on which I would be justified in setting aside Mr Young’s decision of 12 October 2017.[39]Accordingly, had I not already dismissed Mr Sabesan’s appeal on other grounds, I would have dismissed it on substantive grounds and affirmed Mr Young’s decision.