Kinsley, R (on the application of) v Barnet Magistrates Court & Anor

An appellate tribunal must decide the case presented by the parties. It should not determine liability on a materially different basis without giving the parties a fair opportunity to address the relevant issue in evidence and submissions. This is particularly important where statutory concepts, such as occupation and residence, have different meanings. A party who deliberately advances its case on a narrow basis may legitimately expect the appeal to be decided on that basis. An exceptionally late appeal may justify an extension of time where the appeal is well founded, injustice would otherwise result, and the circumstances include the appellant’s status as a litigant in person. Where remittal would require proof of facts many years after the event, and the original party chose how to present its case, quashing the decision without remittal may be the proper course.

The claimant appealed against a decision of the London North West Valuation Tribunal dated 14 February 2008. The Tribunal had found him liable for council tax on a property for the period from April 2000 to February or March 2005.

Before the Tribunal, the local authority relied only on Local Government Finance Act 1992, section 6(2)(a), alleging that the claimant was the resident owner. The Tribunal rejected that case but proceeded to consider whether other persons were resident and concluded that the claimant was liable as owner under section 6(2)(f). The claimant’s appeal to the High Court was lodged outside the four-week period. The issues were whether time should be extended and whether the Tribunal had acted lawfully in determining liability on a basis not advanced at the hearing.

1. Extension of time. Regulation 51(2) of the Valuation and Community Charge Tribunals Regulations 1989 confers a discretion to dismiss a late appeal. The principles in Regalbourne v East Lindsey District Council, as preserved by paragraph 17.3 of the practice direction to Part 52 of the Civil Procedure Rules, remained applicable. The court considered the strength of the appeal, prejudice to good administration, and the prejudice to the appellant. The appeal was well founded and injustice had occurred. In the circumstances, including the claimant’s status as a litigant in person, time was extended.
2. The statutory scheme in section 6 required liability to be determined by applying the statutory hierarchy. Residence was a defined concept involving sole or main residence. Occupation and residence were not interchangeable, and the distinction could affect both liability and exemption.
3. The Tribunal acted wrongly by extending its enquiry after the local authority had deliberately presented its case only under section 6(2)(a). The claimant had a legitimate expectation that he would succeed if that case failed. The Tribunal should not have determined liability under section 6(2)(f) when the distinction between occupation and residence had not been raised in the evidence or submissions.
4. Remittal was inappropriate. The relevant facts were many years old, the local authority had chosen the basis on which it advanced its case, and the amount involved did not justify further disproportionate litigation. The appeal was allowed and the Tribunal’s decision was quashed.
5. The judicial review application was refused as academic. The claimant was awarded the costs of the appeal, to be assessed if not agreed, and the transcript was ordered to be provided at public expense.

• London North West Valuation Tribunal: by decision dated 14 February 2008, found the claimant liable for council tax.
• High Court (Administrative Court): allowed the appeal, extended time, and quashed the Tribunal’s decision. The judicial review application was refused as academic.