Branwell v Valuation Office Agency

A dwelling is not removed from the council tax valuation list merely because it is vacant, in poor repair, or uneconomic to repair. The relevant question is whether it can be made suitable for occupation as a dwelling by carrying out a reasonable amount of repair. If so, it remains a hereditament. Council tax liability follows the statutory hierarchy based on occupation and interests in the dwelling. A court cannot disapply primary legislation because a different allocation of liability might encourage repairs. That scheme was an intelligible and rational legislative choice, and any interference with the qualified rights protected by article 8 and article 1 of the First Protocol was justified.

Miss Branwell, the long leaseholder of a flat, appealed under regulation 43 of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 against a decision of a panel of the Valuation Tribunal for England. The panel had upheld the Listing Officer’s refusal to remove the flat from the council tax valuation list.

The flat had been vacant for many years and was affected by damp, flooding and disrepair. The appellant argued that the hearing had been unfair, that the flat was incapable of being a hereditament, and that the statutory scheme was incompatible with her Convention rights. The central issues were whether the panel applied the correct test and whether the appellant remained liable for council tax.

1. The appeal was dismissed. The appellant had been offered an adjournment when she received the Listing Officer’s presentation pack and had declined it. She had also exercised a full merits appeal to the VTE. Any possible unfairness in the Listing Officer’s earlier process was therefore cured on the facts of this case. The absence of the appellant’s surveyor did not cause material disadvantage, since his evidence did not address the correct legal test.
2. The panel applied the correct approach. The issue was whether the flat could be made suitable for occupation as a dwelling by a reasonable amount of repair, not whether carrying out the repairs would be economic. A distinction existed between repair and complete reconstruction or replacement. The panel was entitled to conclude, on the photographs and other evidence, that the flat was structurally sound, was not derelict, and could be made suitable for occupation by reasonable repairs.
3. The fact that the appellant was not living in the flat, or that substantial repair obligations might fall on the landlord, did not alter the statutory allocation of council tax liability. Under section 6 of the Local Government Finance Act 1992, liability was linked first to actual occupation and otherwise to the person with the relevant right to occupy. Parliament had made that choice, and the court had no power to disapply primary legislation.
4. Assuming that article 8 and article 1 of the First Protocol were engaged, the statutory scheme was intelligible and rational. Its connection between liability, residence and the right to occupy was within the margin of appreciation. Any interference with the appellant’s Convention rights was plainly justified. Section 6 required no corrective interpretation under section 3 of the Human Rights Act 1998, and there were no grounds for a declaration of incompatibility under section 4.

1. Valuation Tribunal for England: the panel rejected the appeal against the Listing Officer’s refusal to remove the flat from the council tax valuation list. A subsequent application for review was refused.
2. High Court (Administrative Court): the appeal under regulation 43 of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 was dismissed.