Fayad, R (on the application of) v London South East Valuation Tribunal

For council tax student-disregard purposes, a full-time course of education requires both attendance for the prescribed periods and study, tuition or work experience averaging at least 21 hours a week during those periods. Attendance means attendance at an identified place, whether at the educational establishment or elsewhere. Time spent writing up a thesis without any requirement to attend at a particular place does not satisfy the statutory definition. Student status under the Immigration Rules does not determine student status under the council tax legislation, because the schemes address different questions. Judicial review should ordinarily not be used to avoid a statutory appeal and its shorter time limit, although the court may consider the merits where the parties and evidence are substantially the same and jurisdiction is conceded.

The claimant, a postgraduate student, challenged the Valuation Tribunal’s dismissal of his appeal against Lewisham Council’s refusal to continue his council tax student disregard after September 2003. The Tribunal had concluded that his course, during the period when he was writing up his doctoral thesis, did not satisfy the statutory criteria for a full-time course of education.

The claimant sought judicial review rather than appealing to the High Court under regulation 51 of the Valuation and Council Tax Community Charge Tribunals (Amendment) Regulations 1993. Permission was granted by Underhill J. The issues were whether judicial review should be entertained, whether the claimant’s favourable immigration decision was relevant, and whether his course satisfied paragraph 4 of Schedule 1 to the Local Government Finance Act 1992.

1. The application failed on its merits. The court therefore did not need to decide whether to refuse relief because the claimant had failed to use the statutory appeal route, or whether to treat the hearing as a statutory appeal.

2. Judicial review is a remedy of last resort. Where a statutory appeal is available, it should ordinarily be used, and judicial review should not ordinarily be used to avoid a shorter statutory time limit. Nevertheless, the court considered the merits because the claimant was acting in person, permission had been granted, the parties were effectively the same, the evidence would be identical, and the interested party conceded jurisdiction.

3. The claimant’s success before the Asylum and Immigration Tribunal did not assist him. That tribunal had applied rules 57 and 60 of the Immigration Rules, whereas the council tax question arose under a different statutory scheme. Recognition as a student for immigration purposes did not establish entitlement to a council tax disregard.

4. Paragraph 4 of Schedule 1 to the Local Government Finance Act 1992 requires, among other things, that the educational establishment normally require students to attend for at least 24 weeks in each academic or calendar year, and that they undertake study, tuition or work experience averaging at least 21 hours a week during those periods.

5. The word “attend” in paragraph 4(1)(b) means physically attend at an identified place. The words “whether at premises of the establishment or otherwise” do not make mere application of attention sufficient. The separate requirement in paragraph 4(1)(c) supports that construction, since it refers to activities undertaken during the periods of attendance.

6. Because the claimant was not required to attend at a particular place while writing up his thesis, he was not undertaking a full-time course of education for the purposes of the council tax provisions. Lewisham Council and the Valuation Tribunal were therefore correct to treat him as liable for council tax.

7. The claimant’s submission that registration was required was accepted only to the limited extent that the legislation referred to enrolment, not registration. The judge confirmed that this point was not part of the essential reasoning.

8. Permission to appeal was refused because there were no realistic prospects of success. Costs were ordered against the claimant in the assessed sum of £2,500.

• Valuation Tribunal: On 30 August 2006, dismissed the claimant’s appeal against Lewisham Council’s refusal to continue the council tax student disregard.
• High Court (Administrative Court): Judicial review permission was granted by Underhill J on 28 September 2007. The claim was subsequently dismissed on the merits under [2008] EWHC 2531 (Admin).