Bennett, R (on the application of) v Copeland Borough Council

For council tax purposes, residence means actual residence in the dwelling. A person who owns a property but has never lived there cannot be its sole or main residence, even if it is the only property in which the person has a financial interest, the only property to which the person can return, or the intended retirement home. The statutory distinction between a resident and a mere owner reinforces that construction. The question whether one of two properties is a person’s main residence remains fact-sensitive, but that assessment arises only where the property is in fact a residence.

Mr Bennett appealed from the decision of Mr Michael Supperstone QC, sitting as a deputy High Court judge, who upheld a Valuation Tribunal decision dated 2 July 2002. The Tribunal had held that a property in Cumbria was Mr Bennett’s sole or main residence for the purposes of section 6(2)(a) of the Local Government Finance Act 1992, although he lived a nomadic life connected with his work and had never lived at the property.

The central issue was whether ownership, a right to return, occasional visits and an intention to retire to the property could make it a sole or main residence where the taxpayer had never actually resided there.

1. Appeal allowed. The Tribunal’s decision and the deputy judge’s order were based on an error of law.
2. Lord Justice Rix held that the statutory reference to a “resident” having his “sole or main residence” in a dwelling requires actual residence. The qualification “sole or main” addresses the possibility that a person may reside in more than one place. It does not remove the prior requirement that the dwelling must be a place in which the taxpayer actually resides.
3. The assessment of which property is a person’s main residence remains a matter of fact and degree where there are competing properties in which the person resides. The factors identified in the authorities, including security of tenure, intention to return, family arrangements and work-related accommodation, cannot automatically be treated as decisive in a different factual setting.
4. Mr Bennett’s ownership, freehold interest, occasional visits, right to return and intention to retire there could not establish residence. The Tribunal’s conclusion that the property must be his sole or main residence merely because no other property qualified was a non sequitur. The statutory distinction between a resident under section 6(2)(a) and a mere owner under section 6(2)(f) reinforced that conclusion.
5. Lord Justice Longmore agreed that a person of no fixed abode who owns a house does not necessarily have his sole or main residence there if he has never lived in it. Lord Justice Peter Gibson likewise held that a dwelling never actually occupied cannot be the taxpayer’s sole or main residence.
6. The appeal was allowed with costs. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): Appeal allowed with costs. Permission to appeal to the House of Lords was refused: [2004] EWCA Civ 672.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: Mr Michael Supperstone QC, sitting as a deputy High Court judge, upheld the Valuation Tribunal’s decision and held that Mr Bennett had not shown an error of law.
3. Valuation Tribunal: On 2 July 2002, the Tribunal held that the Cumbria property was Mr Bennett’s sole or main residence for the purposes of section 6(2)(a) of the Local Government Finance Act 1992.