This is a very interesting case that we represented the landlord at the Valuation Tribunal hearing and the paperwork leading to it (pro bono if I may add!) The main question being – if a tenant vacates a furnished property without giving proper notice, who is liable for council tax? Is it the landlord or the tenant until the tenant gives proper notice ending the tenancy?

Background

The landlord Mr Oyston via his agent granted an assured shorthold tenancy to Mr Pattison which commenced on 23 January 2009. The tenancy was for a fixed term of six months ending on 22 July 2009 and thereafter became a statutory periodic tenancy. The rent was payable in advance on the 23rd of each month. The property was furnished.

On or about 20 August 2010, the tenant, Mr Pattison vacated the property as he had purchased another property and duly notified the local authority the he was no longer in occupation of the subject dwelling. However, although he had given notice to quit via email, the notice wasn’t accepted by the agent because it wasn’t for the correct length nor did it expire at the end (or at the start) of a period of the tenancy. The tenant was notified and he subsequently gave proper notice to quit by email expiring on 22 September 2010 and paid rent to that date.

On 5 November 2010, the property was re-let.

Because the property was furnished (so the unfurnished empty property six month exemption didn’t apply) the local authority billed the landlord for council tax for the period 20 August 2010 to 4 November 2010. The landlord argued that his liability was only from the period 23 September (when the tenancy ended)  to 4 November 2010 (when the property was relet).

The Law

The person who is liable for council tax is defined in the hierarchy of liability contained in section 6 Local Government Finance Act 1992. Basically, when deciding who is liable you start at the top of the list and work down until you find the matching situation. So, for example a freehold owner occupier is at the top of the list and at the very bottom is “the owner of the dwelling”

A person falls within this subsection in relation to any chargeable dwelling and any day if, on that day—

(a)he is a resident of the dwelling and has a freehold interest in the whole or any part of it;

(b)he is such a resident and has a leasehold interest in the whole or any part of the dwelling which is not inferior to another such interest held by another such resident;

(c)he is both such a resident and a statutory [F1, secure or introductory tenant]of the whole or any part of the dwelling;

(d)he is such a resident and has a contractual licence to occupy the whole or any part of the dwelling;

(e)he is such a resident; or

(f)he is the owner of the dwelling.

“(f) he is the owner of the dwelling” has no residency requirement so the immediate thought is that the landlord owner in this case is the liable person.

However, further needs to be looked before jumping to such a conclusion. Sub-section (5) defines “owner” as:-

…

“owner”, in relation to any dwelling, means the person as regards whom the following conditions are fulfilled—

(a) he has a material interest in the whole or any part of the dwelling; and

(b) at least part of the dwelling or, as the case may be, of the part concerned is not subject to a material interest inferior to his interest;

…

And, material interest means:-

a freehold interest or a leasehold interest which was granted for a term of six months or more [s.6(6)]

Therefore, a non resident person who is liable to pay council tax is the person who has the inferior material interest which includes a lease granted for a term of six months or more of the whole, or any part of, the dwelling.

The hearing

At the first stage of the appeal (which is basically a letter to the local authority) the local authority’s argument was that because the tenant had ceased to occupy as their only or principle home, the tenancy could no longer be an assured shorthold tenancy (which is true) and that the whole tenancy therefore came to an end from 20 August (which is untrue) and so there was no material interest. In fairness to the local authority, this argument was swiftly dropped!

For the main appeal at the tribunal, the authority’s primary case was that when the fixed term tenancy came to an end on 22 July 2009, a statutory periodic tenancy took effect on 23 July 2009 (see s.5 Housing Act 1988). As this statutory periodic tenancy was a new tenancy, it was NOT granted for a period of six months or more and therefore was not a “material interest” as defined by the regulations. Then, on 20 August 2010 when the tenant ceased to occupy, the tenancy became a contractual tenancy and again as this new tenancy was not granted for a term of six months or more, it was not a material interest as defined by the regulations.

To summarise the situation, the billing authority stated that, in its opinion, the tenant had had three different tenancies at the appeal property rather than the second and third being a continuation of the first and, as the third was not a material interest, then it was the owner, not the tenant who was liable for council tax purposes. [para 3 of the decision]

We argued that a statutory periodic tenancy is “an entitlement to remain” and therefore a continuation of the six month fixed term. In addition, material interest is defined as a leasehold interest which “was” granted for a term of six months or more (therefore granted at some point in the past) and therefore it must have been intended by the legislator to apply to a periodic tenancy that arises from a tenancy that “was” previously for a term of six months or more.

We also argued that when the contractual tenancy arose as a result of the tenant ceasing to occupy as his only or principle home, although accepting it ceased to be an assured shorthold tenancy at this time, it had simply drifted into being a contractual tenancy and was not a new granting of a new tenancy.

Decision

The panel was of the opinion that in the event of any dispute between the landlord and tenant following the commencement of the original tenancy on 23 January 2009, then the aggrieved party would have been able to take action based on the clauses within that tenancy agreement, even after the expiration of the initial six month period. Consequently, the panel concluded that the original tenancy agreement remained in force and was legally binding up to the date when then tenant ended the agreement on 22 September 2010. This suggested clearly to the panel that the three periods referred to by the billing authority were a continuation of the original agreement and not three separate and different agreements and it therefore followed that the tenant had a material interest in accordance with section 6 of the Local Government Finance Act up until 22 September 2010. In deciding this particular aspect of the appeal, the panel also considered the view of a “reasonable onlooker” and concluded that they would also arrive at the same conclusion.

 

Having decided that the tenant had a material interest in the property for the period in dispute, the panel considered the definition of owner in respect of section 6 and concluded that, as the tenant had a material interest which was inferior to that of the freehold owner’s, then the freehold owner could not be regarded as owner for the purposes of section 6. With regards to the tenant, there was no other material interest inferior to his and it was he, therefore, who met the definition of owner.

 

It was not disputed that the sole or main residence of the tenant changed when he occupied the property which he had purchased, but the sole or main residence of a person did not preclude that person from also being liable for council tax at another address. Consequently, it was possible for the tenant to be liable for council tax purposes at both addresses, even though he only resided in one of them.

 

[paras 10 - 12]

Comment

This is a very significant decision because this case will also cover the situation if a tenant abandons a property. Of course, if the property is unfurnished, then it doesn’t really matter because of the six months unoccupied exemption but if the property is furnished, then the tenant remains liable for council tax until either a valid notice to quit is served or the landlord unequivocally accepts a surrender of the tenancy.

There is no definition of furnished in the legislation but we prefer the explanation given in the Council Tax Handbook by Child Poverty Action Group which explains in their view furnished is relative to the property. For example a sofa, bed, table, chairs, wardrobe and chest of drawers in a one bedroomed flat is furnished but the same furniture in a four bedroomed house is not.

There is however a problem for members of the Guild who follow our advice of granting three month fixed term tenancies. Had the landlord in the above case granted a three month tenancy, the tenant would not have had a “material interest” because in order for there to be a material interest for council tax purposes, the tenancy must have been granted for six months or more. We therefore now change our advice to say that if the property is unfurnished, three months fixed term is still recommended but if the property is let furnished then a six month fixed term is recommended. We will amend our guidance pages in due course.

The full decision is available here which it is accepted is not binding but I’m confident that it was correctly decided as we don’t do pro bono cases like this unless we truly believe in the case.

• Valuations
• Liability
• Completion Notices
• Penalties

The most common type of appeal for landlords will be in relation to liability. An appeal can be made under liability on:

• That a dwelling is not exempt
• That someone is, or is not, a liable person
• That a disability reduction should not be granted
• That a discount should not be granted
• That the amount payable is correct

In the first instance, [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']a letter must be served by the aggrieved person on the local authority [s.16 Local Government Finance Act 1992]

The letter should must state the matter by which and the grounds on which the person is aggrieved.

The local authority has 2 months to consider the matters and may ask for additional information. If the local authority:

• Rejects the appeal
• Makes some changes but fails to satisfy you, or
• Fails to make a decision within the two month period

Then, a further appeal may be made to the Valuation Tribunal. An appeal to the tribunal must be made:

• Within two months of the date the local authority notified you of its decision, or
• Within four months of the date when the initial representation was made if the local authority has not responded.

There is a power in exceptional circumstances for the tribunal to allow extra time.

In the case of an appeal letter to a local authority in relation to a dispute over liability, a calculation or an exemption, the letter can include the following line: “In the event that you do not accept my submission, please treat this letter as notice to appeal to the Valuation Tribunal established under section 16 of the Local Government Act 1992.”[Source: Council Tax Handbook 6th Edition CPAG Chapter 12]

Useful Links

Valuation Tribunal Website

Council Tax Manual (produced by VT)

Useful Guidance Leaflets

Valuation Tribunal Practice Statements

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The liability to pay council tax is determined by the hierarchy of liability as contained in s.6 Local Government Finance Act 1992. Basically you start at the top of a list of liable persons starting with owner-occupiers and work downwards until the appropriate person is found and that becomes the liable person.

However, under the Council Tax (Liability for Owners) Regulations 1992, an owner will always be liable if the dwelling is an HMO. The definition of an HMO for council tax purposes is totally different to that contained in the Housing Act 2004. For council tax purposes an HMO is defined as:

a dwelling which

(a) was originally constructed or subsequently adapted for occupation by persons who do not constitute a single household; or

(b) is inhabited by a person who, or by two or more persons each of whom either—

(i) is a tenant of, or has a licence to occupy, part only of the dwelling; or

(ii) has a licence to occupy, but is not liable (whether alone or jointly with other persons) to pay rent or a licence fee in respect of, the dwelling as a whole.

[r.2]

The landlord owned a house which she let on a series of assured shorthold tenancies between 1999 and 2007. In 1999, the tenancy was granted to four tenants on a joint and several basis. When one tenant vacated, the dwelling was let to the remaining three tenants, again on a joint and several basis.

When the tenants originally moved in, in 1999, they agreed with the landlord that because they did not require the use of the furniture supplied, it would be stored in the conservatory at the rear. They also agreed that they did not require use of the conservatory.

Despite the tenancy(ies) having one rent shown for the whole house, the tenants paid the landlord their share of the rent individually, which continued until 2008 when the tenants vacated.

The local authority had billed the tenants for council tax from 1999 until they vacated but then subsequently decided the property was an HMO and therefore billed the landlord the sum of around £11,000. The landlord appealed to the valuation tribunal. [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']The tribunal agreed with the local authority that the property was an HMO because (a) the tenants each paid there share of the rent and (b) the tenants only rented part of the dwelling because of the lack of access to the conservatory.

The landlord successfully appealed to the High Court.

Although the tenants had each paid a “share” of the rent, this had been an arrangement of convenience commonly found in shared properties. Under the terms of the tenancy agreement, they were jointly and severable liable for the rent. The fact that they had paid separately did not change their legal liability. Nor was the tenancy only of part of the house. The tenants were clearly entitled to use both the furniture and the conservatory, even if they had chosen not to do so. Accordingly, they were not excluded from any part of the property but had merely voluntarily decided not to use one part of it.

The judgment is available here.

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If deposit has been taken, register the deposit with the chosen scheme (see this series)

Write to [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']local authority council tax department, electricity, gas and water authority with names of tenants,  commencement date and readings as appropriate.

In particular, although not law at the time of writing this post, soon it will be a legal requirement to notify the water authority. A failure to do so will result in the landlord being jointly liable to pay the tenants water charges. See this article for details.

If someone other than the tenant paid the deposit on their behalf and the custodial scheme is used, landlord must issue a deposit confirmation certificate to the person (known as a relevant person) [F033].

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Liability is determined by a ‘hierarchy of liability’ set out in section 6 Local Government Finance Act 1992.

The below table shows this hierarchy and [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']you must start at the top and work down the table. As soon as a description is reached which applies to the dwelling in question, that person is the liable person [s6(2)].

Hierarchy of liability in England and Wales

If a tenant has vacated, he is no longer “resident” and so the person liable will be the “owner of the dwelling”. In certain cases, the tenant is defined as the “owner”:

Definition of “owner”

A non resident owner is defined as the person who has the inferior (shortest) lease granted for a term of six months or more of the whole, or any part of, the dwelling. This would apply for example where a tenant was granted a six month tenancy or longer which ran on periodic. If the tenant then vacated without giving notice, the tenant would still remain liable until the tenancy was ended (by surrender or valid notice to quit for example) [Oyston v Leeds City Council – Valuation Tribunal for England – 4720M67692/244C 27 July 2011] because they were granted a tenancy for six months or more and they have an inferior interest in the property (until that interest is ended).

Note: For Guild members who follow our recommendation of three months fixed terms, this is the only draw back of that advice (which we personally follow though,) because a tenant who simply vacates without notice and “was” on a three month tenancy does not qualify as an “owner” and so the landlord will be liable. However, we have considered the pros and cons and this is the only disadvantage we can think of and we believe the advantages of speedier possession in certain circumstances outweighs this benefit of council tax liability should the tenant vacate without notice.

There is also a further potential exemption where a tenant has abandoned:

Exemption

Unoccupied and unfurnished dwellings are exempt from council tax for up to six months from the end of the last period of six weeks or more during which the dwelling was occupied or furnished. Any period of less than six weeks is disregarded to avoid abuse of the exemption.

Council Tax Bill

Note: no one has to pay the tax unless a bill has been sent out with her/his name on it unless (in Scotland) s/he is jointly liable with someone who has been billed. If the name of a liable person cannot be established after reasonable enquiries have been made, the bill may be addressed to ‘The Council Tax Payer’.

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I am aware that if I let a large house to individual tenants on individual tenancy agreements on a per room basis, I will have the council tax to pay. I have been told by a friend though that even if I let the same property to 5 people on one tenancy agreement I could still be held liable to pay council tax as landlord. Is this correct?

A:[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']

As a rule of thumb, if you let a property on a room by room basis, the landlord will always be liable to pay council tax. There is of course the usual exemption if all the occupants are students.

When letting on one tenancy, the situation can become less clear.

Regulation 2 of the The Council Tax (Liability for Owners) Regulations 1992 states:

Houses in multiple occupation, etc

Class C a dwelling which

(a)was originally constructed or subsequently adapted for occupation by persons who do not constitute a single household; or

(b)is inhabited by a person who, or by two or more persons each of whom either—

(i)is a tenant of, or has a licence to occupy, part only of the dwelling; or

(ii)has a licence to occupy, but is not liable (whether alone or jointly with other persons) to pay rent or a licence fee in respect of, the dwelling as a whole.

These regulations provide that the owner is always liable if the circumstances set out above are met.

Note that r.2 (a) states that the owner is liable where the dwelling was originally constructed or subsequently adapted for occupation by persons who do not constitute a single household.

In Hayes v Humberside Valuation Tribunal [1998] R.A. 37, H owned a property which he let to six students. One of them ceased to be a student. Each of the students’ rooms had its own door with a separate security lock. The valuation tribunal found that the installation of the security locks amounted to adaptation of the premises within the meaning of the Council Tax (Liability for Owners) Regulations 1992 Reg.2 (as amended) and that accordingly the owner was liable for council tax on the property notwithstanding that he was not living there and that others were. The High Court dismissed H’s appeal and he appealed to the Court of Appeal.

Held, dismissing the appeal, that the tribunal had applied its mind to the question whether the installation of locks could be an adaptation of the premises and had reached a finding of fact which could not be described as perverse. Barnes v Sheffield City Council (1995) 27 H.L.R. 719 CA (Civ Div), Maddox v Storer [1963] 1 Q.B. 451 DC, R. v Formosa (John) [1991] 2 Q.B. 1 CA (Crim Div), Taylor v Mead [1961] 1 W.L.R. 435 DC considered[/amember_protect]

For this article, it is assumed that your tenancy agreement contains a provision that the tenant is liable to pay for the council tax.

Owner always liable

An owner is always liable for the following properties regardless of what it might say in the tenancy agreement (because statute overrules contract)

• Care homes and hostels
• Religious communities
• Houses in multiple occupation
• Second homes with domestic servants
• Ministers of religion
• School boarding accommodation
• Accommodation occupied by asylum seekers

Houses in multiple occupation

For this article we only need concentrate on Houses in Multiple Occupation

You must never confuse the definition of a house in multiple occupation contained in the Housing Act 2004 with the council tax provisions. The two are completely different.

For council tax purposes, the definition of an HMO is as follows:

[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']A dwelling is classed as a house in multiple occupation if:

• It was originally constructed or subsequently adapted, for occupation by more than one household; or
• each person who lives in it is either:

• a tenant or licensee able to occupy only part of the dwelling; or
• a licensee liable to pay rent or a licence fee on only part of the dwelling

[The Council Tax (Liability of Owners) Regulations 1992]

This class clearly includes typical bedsit type accommodation in particular where each room is let individually as opposed to one joint tenancy for the entire house. In England and Wales this class can include a dwelling occupied by only one person if the above conditions are met, so long as the dwelling was originally constructed, or subsequently adapted, for occupation by multiple households.

A property subsequently converted into self contained flats does not apply because they are classed as separate dwellings. (In theory though a flat could be an HMO if the rooms are individually let)

Because a house can be an HMO if it has been “adapted” for occupation by multiple households, there could be borderline cases where for example a landlord adds a bedroom and a bathroom. Is this adaptation  for an additional household, or is it for the better convenience of a single family?

Examples of HMO and liability

The hierarchy of liability

Where the owner is not always liable as detailed above, liability is determined by a ‘hierarchy of liability’ set out in section 6 Local Government Finance Act 1992.

The below table shows this hierarchy and you must start at the top and work down the table. As soon as a description is reached which applies to the dwelling in question, that person is the liable person [s6(2)].

Hierarchy of liability in England and Wales

Because of this hierarchy an owner who is not resident is at the bottom of the table and is therefore last to be liable (except when an owner is always liable as detailed above). Because a normal tenant is number two from the top, then they will always be liable before the landlord can be.

Note: no one has to pay the tax unless a bill has been sent out with her/his name on it unless (in Scotland) s/he is jointly liable with someone who has been billed. If the name of a liable person cannot be established after reasonable enquiries have been made, the bill may be addressed to ‘The Council Tax Payer’.[/amember_protect]

Vacant and unoccupied dwellings

The term ‘vacant’ refers to a dwelling which is both:

• unoccupied; and
• substantially unfurnished

[The Council Tax (Exempt Dwellings) Order 1992]

The legislation contains no definition of ‘substantially unfurnished’. In practice many local authorities regard a dwelling as ‘substantially unfurnished’ if there are [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']insufficient furnishings to enable someone to live in the dwelling. However, the quantity of furniture present in the dwelling, in relation to its size, should be the determining factor, ignoring anything other than ‘furniture’ -ie, appliances, fitted wardrobes, TV, DVD and carpets. Thus, a studio flat with a table, two chairs, a sofa and a bed (plus a cooker, washer/drier TV and HiFi) would be substantially furnished, but the same goods in a four bedroom house would not. [pg 46/47 Council Tax Handbook CPAG 6th edition].

The legislation defines an ‘unoccupied dwelling’ as one in which no one lives and an ‘occupied dwelling’ as one in which at least one person lives. [The Council Tax (Exempt Dwellings) Order 1992].

Vacant dwellings requiring or undergoing major repairs or alterations

A dwelling may be exempt for a maximum of 12 months if it:

• is vacant (ie, unoccupied and substantially unfurnished) and requires, or is undergoing, major repair works to make it habitable; or
• is undergoing structural alteration which has not been substantially completed; or
• has undergone major repair work to render it habitable, but has remained continuously vacant since completion for less than six months; or
• has undergone structural alteration, but has remained continuously vacant for less than six months since the alteration was completed.

The vacant dwelling remains exempt for as long as it requires the major repair work or for as long as the works or alteration takes, subject to the 12 month limit. Major repair works are not defined in the legislation apart from the fact that they include structural repair works; nor is the phrase ‘substantially completed’ defined.

From personal experience though, the test is strict. The word major is probably the best word to emphasise. Even a property having new kitchen, new bathroom and gas central heating is not covered by the exemption because a person is still able to occupy the dwelling whilst these works are being carried out and these are not ‘structural repairs’ which must be included. (For example in your own home you could install a new kitchen or central heating whilst living there. Rented property is no different as far as council tax rules matter).

If general improvements are being carried out, you would probably be better relying on the general six month exemption (see later).

Vacant Dwelling

A vacant dwelling (one that is unoccupied and substantially unfurnished) is exempt for up to six months. This exemption applies both to new and previously occupied dwellings. Any one period of not more than six weeks during which the dwelling is occupied is disregarded when deciding if the dwelling has been vacant.

Dwelling wholly occupied by students or ‘relevant persons’

To be exempt under this heading the dwelling must be either:

• occupied by one or more residents, all of whom are ‘relevant persons’ (see below)
• occupied only by one or more ‘relevant persons’ as term-time accommodation.

A relevant person is:

• a student disregarded for discount purposes; or
• a student’s spouse or dependant who is not a British citizen and who is prevented by the terms of her/his leave to enter or remain in the UK form working or claiming benefits; or
• a school or college leaver who is disregarded for discount purposes.
• If the dwelling has more than one resident, they all need to meet the qualifying conditions for the exemption to apply.

Example

Three students rent a house as joint tenants. It is exempt from council tax. The exemption ends when one of the students is dismissed from his course and, therefore, no longer qualifies for a status discount. The three joint tenants are now jointly liable for the council tax on the dwelling. There are three residents, but two of them are disregarded for the purpose of a discount. The bill should be reduced by 25 per cent because there is only one adult resident who is not disregarded.[/amember_protect]

It is also clear that where a house has been split into fully self contained flats where they have their own kitchen, bathroom and WC for exclusive use, these self contained flats have their own banding.

However, what is the position where you have a bedstitting room with it’s own little kitchen within the room and the bathroom and wc is shared? Is this a bedsit or a self contained unit?

Answer: [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']It’s a self contained unit for council tax purposes. [Clement ( LO) v Bryant and others 2003 RA 133]

The transcript of this case is shown below. Additional assistance can be found in the Council Tax Manual – Practice Note 5 : Disaggregation of Dwellings

Another useful reference is the Council Tax Manual produced by the Valuation Tribunal.

Peter Clement (Listing Officer) v C B Bryant and Others [2003] EWHC 422

CO/3694/02 [2003]
High Court of Justice Queen’s Bench Division Administrative Court
17 February 2003
2003 WL 933237
Before: Mr Justice Sullivan
Monday 17th February, 2003
Representation
• Mr D. Forsdick (instructed by Solicitor of the Inland Revenue, Strand, London, WC2) appeared on behalf of the Appellant.
• The Respondent did not appear and was not represented.
JUDGMENT
MR JUSTICE SULLIVAN:

1. This is a statutory appeal brought under regulation 32 of the Council Tax (Alteration of Lists and Appeals) Regulations 1993 (” the 1993 Regulations” ) against a decision by the West Wales Valuation Tribunal (” the Tribunal” ), relating to 11 bedsits at Ty Gnoll, Dyfed Road, Neath. The premises are occupied by elderly persons. The Tribunal decided that 11 of the bedsits within the property comprised a single property and that the disaggregation provisions in the Council Tax (Chargeable Dwellings) Order 1992 (” the 1992 Order” ) did not apply. The Order deals with the approach that is to be followed when within one building there are a number of residential units. Examples might be a block of student accommodation or a block of flats. How does one treat such a property for Council Tax purposes? The answer is to be found in article 3 of the 1992 Order, which provides that:
” Where a single property contains more than one self-contained unit, for the purposes of part 1 of [the Local Government Finance Act 1992] the property shall be treated as comprising as many dwellings as there are such units included in it and each such unit shall be treated as a dwelling.”

A self-contained unit is defined in article 2 as:

” a building or part of a building which has been constructed or adapted for use as separate living accommodation.”

The effect of the Order is that where, within a single building, there are a number of self-contained units, each of those self-contained units is separately assessed for council tax purposes. The valuation officer had so assessed the 11 units, but Age Concern on behalf of the residents argued that they were not self-contained.
2. The property is a mixed development. It contains 26 large and small bedsit flats, three one-bedroomed flats and a warden’s flat. It is owned by the local authority and let to council tenants, all of whom are elderly. It was accepted that so far as the larger flats were concerned, they were self-contained. But an issue arose as to the 11 bedsits. I have been provided with a plan of the small units that was before the Valuation Tribunal. Each unit has its own front door through which one enters a hall. To one side there is a store cupboard and to the other side a linen cupboard, and a lavatory and a washhand basin in a separate cloakroom. Off the hall there is a bed sitting area, and on the other side, in a separate room, there is a fully equipped kitchen. It will be noted that, while there is a wash basin and WC, there is neither a shower nor a bath. Bathing facilities are available within the property but they are shared by a number of the bedsits.
3. The initial decision of the Valuation Tribunal to the effect that the bedsits were not self-contained was given as long ago as 17th October 2001. But the direction given by the Tribunal as to what should be entered into the valuation list was not satisfactory. So the Tribunal was asked to review its decision, and in due course issued an amended notice. A further hearing was held to determine the correct banding. It was conceded at that stage that the larger flats did not fall within the scope of the earlier decision, and so separate decision notices were given in respect of those flats. So far as the 11 bedsits were concerned, the Tribunal confirmed its earlier decision that they should not be separately shown in the valuation list, and determined that valuation band F was the correct band for the cumulative entry to be made in the list.
4. The final notice of decision and statement of reasons was issued on 11th July 2002. In its decision the Tribunal reiterated the reasoning in its earlier decision. So it is necessary to go back to that to understand the basis on which the Tribunal concluded that these 11 bedsits were not self-contained. The Tribunal’s reasons were as follows:

” the individual bedsit units under appeal … were not self-contained in nature because the handwash basin facility within each toilet was basic and too insufficient to constitute adequate washing requirements. This was especially true when considering the elderly nature of the residents who might require additional assistance in such circumstances.
Further, the Tribunal took into account other factors, such as there being one TV licence for the premises, shared bathrooms, lounge and laundry facilities, which pointed to a high degree of communality and dependency.

Additionally, there was only one access point, which in the Tribunal’s opinion would pose a difficulty if the units were to be sold separately on the open market.

Taking the above points into account, the Tribunal concluded that the units failed to qualify the definition of ‘ self contained unit’ under Article 2 of the Council Tax (Chargeable Dwellings) Order 1992 and could not therefore be considered to be dwellings for the purposes of Article 3 of the same Order.”

5. Whether or not a particular unit of accommodation is or is not self-contained is a question of fact for the Tribunal. Normally the court would not interfere with the Tribunal’s judgment provided – and it is an important proviso – it is clear from the Tribunal’s reasoning that it has correctly directed itself as a matter of law.
6. On behalf of the valuation officer, Mr Forsdick submits that four errors are evident from the Tribunal’s reasoning. Firstly, the Tribunal relied in particular upon the fact that the handwash basin facility within each toilet was basic and insufficient to constitute adequate washing arrangements. It noted that there were shared bathing facilities available. As to this, the mere fact that there is no bath or shower in a property does not mean that it cannot be a self-contained unit; that is to say, a part of a building which has been constructed or adapted for use as separate living accommodation.
7. In R v London South East Valuation Tribunal and Neale, ex parte Moore [2001] RVR 92, the Court of Appeal had to consider an application for permission to appeal against an order of Lightman J refusing the applicant permission to apply for judicial review of a decision of the London South East Valuation Tribunal confirming a listing officer’s revised entry of the applicant’s living accommodation for council tax purposes as a separate dwelling in band A. The applicant argued that his accommodation, which comprised a bedsitting room and kitchen, together with the shared use of a bathroom and toilet on the first floor, could not be regarded as a separate dwelling because he had to resort to common bathroom and toilet facilities. In his case he had to share those facilities with up to as many as 13 other occupiers. The court was concerned with whether or not the bedsitting accommodation could properly be described as a dwelling for the purposes of the Local Government Finance Act 1992. In refusing permission to appeal, Simon Brown LJ said that the applicant’s argument flew in the face of long established authority in the rating field. He referred to the Land Tribunal’s decision in James v Williams Valuation Officer [1973] RA 305, which he said laid down an approach: ” which has stood the test of time and has been followed by the rating authorities and tribunals up and down this country ever since. This is the case upon which the listing officer relied and which satisfied the tribunal that this applicant’s flat should be separately rated rather than aggregated with the rest of the property.”

Simon Brown LJ noted that the occupiers of the various units in the house also had to share a bathroom and WC. Thus, it is plain that the mere fact that a property which is otherwise self-contained does not contain a bath or a shower does not of itself take it out of the definition of self-contained unit for the purposes of the 1992 Order.
8. The second error made by the Tribunal was that, in deciding the effect of the absence of washing facilities over and above the hand basin, the Tribunal paid particular regard to the elderly nature of the residents who might require additional assistance in such circumstances. Taking account of this factor is erroneous, because it is plain from the definition of ” self-contained unit” in article 2 of the 1992 Order that the definition is concerned with how the building has been constructed or adapted. It is not concerned with who occupies the building or the manner in which it is used by particular occupiers.
9. In Beasley Listing Officer v National Council of YMCAs [2000] RA 429, I had to consider a similar problem. In that case the property in question was a YMCA hostel. It had been purpose built in 1995, and each of the flats comprised a bedsitting room with a kitchenette area and an en suite shower room. Each flat had its own door lock which was operated by a swipe card. The kitchenette area was equipped with a sink, a cooker and a fridge. The shower room was equipped with a shower, a wash basin and a lavatory. There were also facilities for common use, a meeting room, laundry, disabled lavatory, bicycle store, a refuse store and a further meeting room and a kitchen on the first floor. It can be seen that the sole distinction between the units in the present case and the units in the Beasley case is that in the latter case the units had a shower in addition to a wash hand basin. In deciding that case, the Tribunal had relied in part upon the extent of communal living in the hostel and the extent of communal facilities. The Tribunal’s reasons for concluding that the units in the Beasley case were not self-contained were as follows:

” In coming to this conclusion, the tribunal has borne in mind the limited facilities enjoyed by each unit, the communal areas within Pinder House and the fact that Pinder House is controlled by one body with strict rules, including the criteria applied for residency.”

Dealing with the Tribunal’s reliance upon that last factor, the fact that Pinder House was controlled by one body, I said this:

” Whether Pinder House was controlled by one body and whether that body had criteria for residency, had nothing to do with whether the flats had been constructed for use as separate living accommodation.”

A little earlier I had sought to identify the underlying principle:

” that when looking at articles 2 and 3 of the 1992 Order, one focuses not upon the use that is actually made of the building, but upon whether it has been constructed for use as separate living accommodation.”

I said that:

” I would be prepared to accept that in deciding whether a particular flat has or has not been constructed for use as separate living accommodation within a larger building, it will often be relevant to consider the extent of the facilities which have been provided in the flat and the extent of the communal facilities which have been provided in the remainder of the building. An obvious example, perhaps, at one end of the spectrum, would be traditional student accommodation in a student hostel, where all that may be available in a student’s room is simply the bedroom, and all other facilities – cooking, washing and toilet facilities – are provided communally. Plainly, such factors are, in principle, relevant to the question of whether a particular room has been constructed for use as separate living accommodation. But on the facts here, can it be said that any reasonable tribunal could have reached the conclusion that, given the extent of the facilities provided in the flats, which I have set out above, and given the extent of the communal facilities, these flats have not been constructed for use as separate living accommodation?”

Thus, the fact that the bedsits in the present case happen to be occupied by elderly people is simply an incident of the use to which they are actually put and is not a matter which should have been taken into consideration by the Tribunal in deciding the question under articles 2 and 3 of the 1992 Order.
10. I should note that on behalf of the listing officer Mr Forsdick submitted that the proper approach was simply, as he put it, to look behind the front door. Thus, one went into the unit of accommodation, saw what facilities there were behind its front door, and reached a conclusion whether it had been constructed or adapted for use as separate living accommodation. It was only necessary to look beyond the front door at whether there were other communal facilities in the property as a whole if any doubt about the answer to the statutory question remained, after one had looked inside the unit in question.
11. I find it unnecessary to decide whether one should approach the issue sequentially, by first looking through the front door of the unit in question, and only then, if necessary, at whether there are facilities in the remainder of the building as a whole. If one considers the continuum stretching from the simple bedsit with no facilities through to the luxury flat with all facilities, it is plain that these premises are on the Beasley side of the line.
12. Thirdly, the Tribunal had regard to the high degree of communality and dependency. It is plain that the extent to which there is or is not communal living is not a relevant consideration for this purpose: see per Ognall J in Batty v Burfoot [1995] 2 RA 299. Ognall J pointed out that, while the purpose behind the great majority of properties of this kind is to provide accommodation for an older generation in such a way as to allow mutual privacy whilst allowing for a degree of community which gives peace of mind, that cannot assist in answering the question whether the property in question was constructed or adapted for use as a separate dwelling. One is concerned with bricks and mortar, not with the characteristics of the occupiers.
13. The fourth and final error that is apparent from the Tribunal’s reasoning is that it relied upon the proposition that there was only one access point which, in the Tribunal’s opinion, would have posed a difficulty if the units were to be sold separately on the open market. Practicability of sale in the open market is not a relevant criterion: see per Ognall J in Batty v Burfoot. Subject to the availability of a fire escape, there will be only one access point to many prestigious blocks of flats which are undoubtedly self-contained units of accommodation.
14. Thus, the fact that there is only one access point to a property which contains a number of units of accommodation cannot assist in deciding whether those units are or are not self-contained units for the purposes of the 1992 Order. Thus, I am satisfied that the Tribunal erred in law in those four respects.
15. I have dealt with the matter fairly shortly and not thought it sensible to resolve the point raised by Mr Forsdick since there has been no opposition to this appeal. The Tribunal has indicated that it does not intend to resist the proceedings, and the court has received a copy of a letter signed by the residents of the 11 units saying that they do not wish to proceed with the matter either. Effectively there has been no opposition to this appeal. The only question is what relief should be given. The court’s powers are set out in regulation 32 (4) of the 1993 regulations:

” The High Court may confirm, vary, set aside, revoke or remit the decision or order of the tribunal, and may make any order the tribunal could have made.”

The practical question is whether any purpose would be served in remitting this matter for a further decision by the Tribunal or whether the court should step into the Tribunal’s shoes and make the necessary order. I am satisfied that the latter is the proper course. For the reasons set out above the only reasonable conclusion open to the Tribunal on the facts here was that, despite the lack of a shower, these units were undoubtedly constructed or adapted for use as separate living accommodation. The fact that there has been no opposition by either the Tribunal or the residents to this appeal reinforces my view that it would be pointless to remit the matter to the Tribunal. The proper course is for me to order that there be an appropriate entry made in the list.
16. MR JUSTICE SULLIVAN: Mr Forsdick, I am happy to take submissions as to what the formal order should have been. Is that set out anywhere?
17. MR FORSDICK: The appeal notice. The way in which this arose was that there were proposals to alter the valuation list by the residents. The result is that those proposals should have been rejected. There should be a recertification back to the list as it previously stood. Paragraph 9 of the appeal notice, page 4 of the bundle.
18. MR JUSTICE SULLIVAN: That is what the listing officer had put in. The residents said: ” We object to that.” The Tribunal said: ” Alter.” That has been done in obedience. It is a question of altering it back again.
19. MR FORSDICK: For all of the properties in respect of which proposals were made. There will be an entry in the list altogether as band F.
20. MR JUSTICE SULLIVAN: Since we are dealing with a statutory list, it is important to get the wording right. I can make my own order but I would rather you prepare for me a detailed order setting out what you say should be done to the list. I will approve it on the basis that it reflects the tenor of this judgment. Is that a sensible course?
21. MR FORSDICK: Yes.
22. MR JUSTICE SULLIVAN: There is no need to come back. You can get it through to me through my clerk. I will initial it.[/amember_protect]