Where a local authority/council (the 'Billing Authority') in England has reasonable grounds for believing that a person (or persons; whether individual(s) or company(ies)) is liable for council tax in respect to a chargeable dwelling (defined in section 4[1] of the Local Government Finance Act 1992 (the '1992 Act')), the Billing Authority is likely to serve a demand notice[2a] (a bill) on the person (or persons) identified as liable (on the Billing Authority's reading of section 6[2b] of the 1992 Act), demanding that the set council tax[3] for that valuation band[4] (subject to any reductions/reliefs etc.[5a]), for the relevant financial year(s) (liability period(s)), be paid by the person (or persons[5b]). Such a demand notice forms part of the wider council tax statutory scheme (described in a footnote [6])
One issue that can arise is, whether there is any limitation type period applicable to demand notices. In other words, can a Billing Authority serve demand notices for liability periods many years in the past? This article will consider this issue, with particular consideration of Regentford Ltd v Thanet DC [2004] EWHC 246 (Admin) [2004] 2 WLUK 477 ('Regentford').
Limitation after Demand Notice is served
While not the focus of this article, it may be convenient to mention the position on limitation after a demand notice is served. After a demand notice is duly served, Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613), reg.34(3) specifies that:
‘…no application may be instituted in respect of a sum after the period of six years beginning with the day on which it became due under Part V.’
In other words, once a Billing Authority has served demand notices on a person(s[7]) for council tax (which renders the council tax due[8]), the Billing Authority only has 6 years to issue an application in the Magistates Court, for a council tax liability order. Another way of putting this is, as Lloyd LJ said, in Bolsover District Council v Ashfield Nominees Ltd [2010] EWCA Civ 1129 [2011] Bus LR 492, at paragraph 1:
‘A liability order is limited to amounts of council tax which became due within the period of six years before the application to the magistrates' court.’
A separate article, by the same author, on this topic, is available here.
Limitation prior to Demand Notice being served
Strictly speaking, there is no limitation period (as traditionally understood) to this phase/time period. There is no definite time period, for instance 6 years or whatever, within which a demand notice must be served. What there is however, is a positive obligation upon the Billing Authority to serve the demand notices within a set time, with case law setting down when non-compliance with that time requirement, will result in the demand notices being invalid (and so, meaning the duty upon the recipient taxpayer to pay the council tax, does not arise). There is:
(1) The general obligation to serve a demand notice, contained in Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613) (the 'Admin and Enforcement Regs 1992'), reg.18. Reg.18(1) reads:
'Subject to paragraph (2), for each financial year a billing authority shall serve a notice in writing on every liable person in accordance with regulations 19 to 21.'[9]
(2) The obligation to serve a demand notice within a certain level of promptness, is contained in Admin and Enforcement Regs 1992, reg.19[10]. Reg.19 is entitled 'Service of demand notices' and reg.19(1) provides:
'The demand notice is to be served on or as soon as practicable after the day the billing authority first sets an amount of council tax for the relevant year for the category of dwellings which includes the chargeable dwelling to which the notice relates.'
So the obligation upon the Billing Authority, is to serve the demand notice, and to serve it '...on or as soon as practicable after...' a certain date, namely '...the day the billing authority first sets an amount of council tax for the relevant year...' for the category dwelling to which the chargeable dwelling relates[11]. It is notable that business rates demand notices are required to be served with the same level of promptness ('a demand notice shall be served on or as soon as practicable after'[12] - regulation 5(1) of Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations (SI 1989/1058)
As to the rationale behind reg.19(1), Lightman J in Regentford said, at paragraph 19:
'This statutory duty is imposed at least in substantial part for the protection of those from whom the billing authority may seek payment of the council tax. The notice is required to enable the recipient to know that a claim may be made for payment and accordingly to take immediate steps to prepare and assemble any necessary evidence to establish that there is no duty to pay (e.g. to prove that the property was or was not in multiple occupation or that someone else was in residence) and to arrange his finances to make payment.'
Feasible meaning to 'on or as soon as practicable after...'
Save for one small indication (which is noted below), this is the extent of the guidance provided by Lightman J in Regentford. But further guidance can be drawn from the analogous situation with business rates demand notices (which are subject to the same level of promptness test - as noted above) - in particular, from the case of North Somerset DC v Honda Motor Europe Ltd [2010] EWHC 1505 (QB) (‘Somerset v Honda’).
In Somerset v Honda, Burnett J (as he then was - now Lord Burnett, Lord Chief Justice):
(1) made reference to the Regentford decision, referring to the decision as '...in the context of the similar but not identical Council Tax recovery legislation...' (paragraph 33 (ii)); and
(2) gave guidance on what the level of promptness provision, required. Under the heading 'As Soon as Practicable', Burnett J in Somerset v Honda, said, at paragraphs 64:
‘In the context of an obligation to serve notices under Regulation 5 of the 1989 Regulations, Parliament can be taken to have been well aware of the constraints under which billing authorities operate in terms of manpower and resources. That is so whether a billing authority administers the system in-house, or has contracted others to perform the services. To that extent, the Webster definition: ‘possible to be accomplished within known means and resources’ can properly be applied to the obligation under Regulation 5. That, in my judgment, is for practical purposes synonymous with ‘feasible’. A billing authority will not be able to rely upon the suggestion that home-grown problems and inefficiencies rendered impracticable what would otherwise have been practicable.'
The test to be applied therefore, is whether the Billing Authority served the demand notice as soon as was practicable/feasible.
Feasible to do what? In Somerset v Honda, Burnett J said, at paragraph 65:
'[Counsel for the Billing Authority] submits that however the word ‘practicable’ is interpreted in this statutory environment, it can never be practicable to serve a notice in respect of a hereditament until the billing authority knows the identity of the person in rateable occupation. He submits that in each of these cases the Council was ignorant of the identity of the ratepayer and thus the question of practicability should be judged from the date when the identity became known or clear. It is wrong, he submits, to consider the question of practicability from the date on which the billing authority could have discovered the identity of the ratepayer.
I am unable to accept that submission. It is inconsistent with the decision of David Pannick QC in [Encon Insulation (Nottingham) Ltd v Nottingham City Council [1999] R.A. 382] on a point which was argued before him and which, if I may respectfully say so, was obviously rightly decided. The problem encountered by the billing authority in Encon was that although the hereditament appeared in the list, they were unable to locate it. One of the errors identified in the reasoning of the Magistrates was that they focussed on whether the billing authority knew the location of the premises before a certain date rather than whether they took practicable steps to find it at the beginning of the relevant period. The learned Deputy Judge concluded:
“The issue is not whether the billing authority was unaware of the location of the premises before 7th November 1997 and therefore whether it was not feasible physically to serve the notices prior to that date … Rather the issue is whether it was practicable for the billing authority to have identified the location of the premises at an earlier date and therefore physically to have served the notices at an earlier date."
The reasoning applies with equal force to the question whether it was practicable for the billing authority to have identified the ratepayer at an earlier date.’
The result is that the following types of questions may be asked (depending on the circumstances). For instance, when did it become practicable/feasible for the Billing Authority to have:
(1) located a hereditament which appeared in the Valuation list?
(2) discovered the identity of the taxpayer(s) (the person(s) liable to pay the council tax)?
And then, ask, was this date earlier than the date the demand notice was actually served:
(1) if it was not, the demand notice was served 'in time' (i.e. in compliance with the Billing Authority's obligation under reg.19(1));
(2) If it was earlier, then the demand notice was served 'late', or 'out of time'; the Billing Authority failed to perform its obligation under reg.19(1).
Billing Authority Breach of Obligation - Consequence for Validity of Demand Notice
It does not follow that a demand notice served 'late' or 'out of time' is automatically invalid. Lightman J in Regentford made this clear, where he said, at paragraph 21:
'...a breach of this statutory duty by a billing authority does not operate in all cases as a windfall to the person liable, but precludes a claim to payment and a duty to pay only when the breach has occasioned some procedural or substantive prejudice.'
This was also the conclusion in Somerset v Honda in relation to late demand notices for business rates[13].
Egregious failures to comply with statutory obligations
Prejudice is not always required however, though in a typical case it will be. In Somerset v Honda, Burnett J said, at paragraph 58:
'Egregious failures to comply with statutory obligations may be sufficient in themselves to deny the body or person in default the lawful opportunity to rely upon the action in question.'
Quite what will amount to 'egregious failures', and then when this will be sufficient, to render the demand notice invalid (without any resulting prejudice to the taxpayer(s)) remains to be settled.
Reference can be made to what Burnett J in Somerset v Honda said about earlier authority (London & Clydesdale Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 ('London & Clydesdale Estates')) in this area. At paragraph 46, Burnett J said:
'Lord Hailsham in London & Clydesdale Estates had spoken of cases in which a fundamental obligation may have been so outrageously and flagrantly ignored that an individual could safely take no notice of the purported act. He added that in such a case, if the defaulting authority sought to rely on its action, the defect in procedure could be used as a defence without any positive action having earlier been taken by the person concerned. Lord Hailsham's language is firmly rooted in public law concepts of abuse of power or unconscionability. So too is the language of good faith.'
Some Procedural or Substantive Prejudice
Where there is no egregious Billing Authority failures, a key factor in determining whether the 'out of time' council tax demand notices are valid (or not), is the extent of any procedural or substantive prejudice suffered by the taxpayer, if upheld as valid.
This is the second key factor in determining whether 'out of time' council tax demand notices are valid (or not).
In Somerset v Honda, Burnett J said, at paragraphs 58 to 60 (transposing 'Regulation 5(1)' for reg.19(1)):
‘The starting point is that Parliament has required something to be done which has not been done. Egregious failures to comply with statutory obligations may be sufficient in themselves to deny the body or person in default the lawful opportunity to rely upon the action in question.
However, prejudice is a factor relevant to the question whether a billing authority can rely upon a late notice under Regulation 5(1), just as it was in the cases already discussed. A person who has suffered substantial prejudice as a result of a failure to comply with this statutory provision in circumstances where that prejudice is not decisively outweighed by a competing public interest, will be able to defeat recovery. Parliament cannot have intended that a billing authority could rely upon a notice in those circumstances.
In summary, therefore, a failure to serve a Regulation 5 notice as soon as practicable does not result in automatic invalidity. Rather, the court determining any issue resulting from such a failure will have regard to the length of delay and the impact of that delay upon the ratepayer, in the context of the public interest in collecting outstanding rates. The greater the prejudice to the ratepayer flowing from the delay, the more likely will be the conclusion that Parliament intended invalidity to follow.'
As to sources of prejudice, Burnett J said in Somerset v Honda, at paragraph 61: 'Prejudice may flow to business ratepayers in any number of ways as a result of a late notice to pay rates.'
But, importantly, Burnett J said, at paragraph 61:
'Prejudice is different from inconvenience. In using the language of ‘real prejudice’ in [Wang v Inland Revenue Commissioner [1994] 1 WLR 1286], ‘material prejudice’ in [Charles v Judicial and Legal Service Commission [2002] UKPC 34] and ‘significant’ in [R. v Soneji (Kamlesh Kumar) [2005] UKHL 49; [2006] 1 A.C. 340] the various judges were conveying the same notion: that the prejudice relied upon must be substantial and certainly not technical or contrived.
Any substantial (non technical or contrived) prejudice established, must be weighed against 'The countervailing public interest is in the collection of taxes, the interests of other tax payers and the revenues of the local authority concerned.’ (paragraph 61), to determine whether the council tax demand notices were or were not invalid.
What is the public interest? what are the interests of other taxpayers? It might be that invalidity '...would increase the burden on other ratepayers and tax payers... More generally it would deprive the local authority concerned of revenue because of the way in which the centralised pooling of business rates operates.' (paragraph 49). Delay might also have brought benefits to the ratepayer: 'Many ratepayers, far from being prejudiced by a late notice, may benefit. Most businesses, whether large or small, are likely to make some provision for business rates....the facts in these cases are unusual in that each of the defendants was unaware of a potential liability. A late demand may well improve cash flow and either enable interest to be earned on money put aside for the purpose of paying business rates or at least delay the payment of interest on borrowed money. There is no provision for a billing authority to apply interest to rates demanded late.' (paragraph 49)
Regentford - One small indication
Unfortunately, the lack of engagement with the Court process by the appellant/(alleged) taxpayer in Regentford, means that Regentford itself provides only a very limited indication of:
(1) what might, in particular, amount to relevant prejudice resulting from Billing Authority's non-compliance with reg.19(1); and
(2) how that prejudice might be weighed against the public interest in collecting taxes,
such as to indicate what will (and will not) render council tax demand notices invalid.
To give more details, in Regentford, the appellant/(alleged) taxpayer did not attend the Magistrates Court (the first instance court), to present its arguments (paragraph 22). The appellant/(alleged) taxpayer at first instance, allowed the proceedings to go by default. In other words, 'They had the opportunity to have their day in court but did not avail themselves of it.' (paragraph 22). The result of this, was that Lightman J only said this:
'[the appellant/(alleged) taxpayer claims] that the Council failed to serve the demand notice as soon as practicable, and that the delay in this case has occasioned prejudice in the sense that the records and information to establish that the Properties were not in multiple occupation and that others were resident at the relevant time are no longer available. There might well have been force in those submissions if Regentford had attended the hearing before the Justices and presented them. But it allowed the proceedings to go by default. They had the opportunity to have their day in court but did not avail themselves of it.'
So, where the appellant/(alleged) taxpayer alleges he has a defence to the Billing Authority's decision to identify him as liable for the council tax, and the argument is that the delay has meant records and information - evidence in other words, is no longer available, this 'might well' have 'force' (i.e. be a meritorious argument to run).
Where the Council Tax Demand Notices are Invalid
Where the council tax demand notices served as invalid, the demand notices will not have had the effect of triggering the taxpayer obligation to pay the council tax. Without the service of valid demand notices, no actual 'duty to pay' arises in the taxpayer, to pay the council tax. As Lightman J in Regentford said, in paragraph 16 of his judgment:
'The liability to pay council tax requires for its transformation into a duty to pay a demand by the billing authority.'
and
'The service of the demand notices make the amount of the liability demanded a sum which is due and payable'
So until a valid notice is served, the council tax is not 'due and payable' (Regentford, paragraph 16). Should the Billing Authority seek a council tax liabilty order in the Magistates Court, the Magistrates Court shall, under reg.34(6) of Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613), on the hearing of the complaint, 'make the order if it is satisfied that the sum has become due and payable by the defendant and has not been paid.’ But not otherwise. Logically, if no valid demand notice has been served, the Magistrates Court should find that they are not satisfied that the sum has become due and payable by the defendant, and so refuse to make the council tax liability order.
Which forum decides whether Council Tax Demand Notices are Invalid?
The Valuation Tribunal has no jurisdiction to investigate the question of whether the Billing Authority has breached its obligation to serve the council tax demand notice on or after the date it became practicable/feasible to do so. This issue is a matter for the Magistrates Court to determine.
In Hakeem v Valuation Tribunal Service (also known as The Queen on the Application of Abdul Hakeem v Valuation Tribunal Service v London Borough of Enfield) [2010] EWHC 152 (Admin) ('Hakeem') Cox J:
(1) referred to the fact that the VTE in Hakeem had found that '...they had no jurisdiction to determine this issue, it being a matter for the Magistrates' Court to determine.' (paragraph 26), and said 'As a matter of law, this is correct...' (paragraph 26); and
(2) agreed with an earlier decision of Walker J in Hardy v Sefton [2006] EWHC 1928; [2007] RA 140 ('Hardy')[14], and said '...the Valuation Tribunal has no jurisdiction to investigate the question whether the billing authority was in breach of regulations 18 and 19.' (paragraph 26)[15]
The procedural path in Regentford are consistent with this. Regentford was an appeal (by way of case stated), from a decision, importantly, of the Magistrates Court, not the VTE, as to whether or not late served Demand Notices were valid (or not), and so whether the taxpayer had been under a duty to pay council tax and had failed to comply with that duty to pay. No point was raised in Regentford that it should have been VTE that decided the issue.
SIMON HILL © 2023*
BARRISTER
33 BEDFORD ROW
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[1] To identify what is a 'chargeable dwelling' (which can be labelled 'domestic hereditaments'), it is necessary to read sections 3 and 4 of Local Government Finance Act 1992 together. Section 3 is entitled 'Meaning of “dwelling” and section 4 is entitled 'Dwellings chargeable to council tax'. Taking these in reverse order:
Section 4 reads:
'(1) Council tax shall be payable in respect of any dwelling which is not an exempt dwelling.
(2) In this Chapter-
“chargeable dwelling” means any dwelling in respect of which council tax is payable...'
Pausing there, the 'Chapter' is Chapter 1 entitled 'Main Provisions', contained in Part I 'Council Tax in England' contained in Local Government Finance Act 1992.
The rest of section 4 then sets out the powers of the Secretary of State to prescribe, by statutory instrument, what will be an 'exempt dwelling'. For completeness, it reads:
'“exempt dwelling” means any dwelling of a class prescribed by an order made by the Secretary of State.
(3) For the purposes of subsection (2) above, a class of dwellings may be prescribed by reference to such factors as the Secretary of State sees fit.
(4) Without prejudice to the generality of subsection (3) above, a class of dwellings may be prescribed by reference to one or more of the following factors-
(a) the physical characteristics of dwellings;
(b) the fact that dwellings are unoccupied or are occupied for prescribed purposes or are occupied or owned by persons of prescribed descriptions'
Section 3 reads:
'(1) This section has effect for determining what is a dwelling for the purposes of this Part.
(2) Subject to the following provisions of this section, a dwelling is any property which-
(a) by virtue of the definition of hereditament in section 115(1) of the General Rate Act 1967, would have been a hereditament for the purposes of that Act if that Act remained in force; and
(b) is not for the time being shown or required to be shown in a local or a central non-domestic rating list in force at that time; and
(c) is not for the time being exempt from local non-domestic rating for the purposes of Part III of the Local Government Finance Act 1988 (“the 1988 Act”); and in applying paragraphs (b) and (c) above no account shall be taken of any rules as to Crown exemption.
(3) A hereditament which-
(a) is a composite hereditament for the purposes of Part III of the 1988 Act; and
(b) would still be such a hereditament if paragraphs (b) to (d) of section 66(1) of that Act (domestic property) were omitted, is also, subject to subsection (6) below, a dwelling for the purposes of this Part.
(4) Subject to subsection (6) below, none of the following property, namely-
(a) a yard, garden, outhouse or other appurtenance belonging to or enjoyed with property used wholly for the purposes of living accommodation; or
(b) a private garage which either has a floor area of not more than 25 square metres or is used wholly or mainly for the accommodation of a private motor vehicle; or
(c) private storage premises used wholly or mainly for the storage of articles of domestic use,
is a dwelling except in so far as it forms part of a larger property which is itself a dwelling by virtue of subsection (2) above.
(4A) Subject to subsection (6) below, domestic property falling within section 66(1A) of the 1988 Act is not a dwelling except in so far as it forms part of a larger property which is itself a dwelling by virtue of subsection (2) above.
(5) The Secretary of State may by order provide that in such cases as may be prescribed by or determined under the order-
(a) anything which would (apart from the order) be one dwelling shall be treated as two or more dwellings; and
(b) anything which would (apart from the order) be two or more dwellings shall be treated as one dwelling.
(6) The Secretary of State may by order amend any definition of “dwelling” which is for the time being effective for the purposes of this Part.'
The Secretary of State has exercised his/her powers under section 3(5)(a) and (b) above (and under section 113(2)) of the Local Government Finance Act 1992, and laid before Parliament the Council Tax (Chargeable Dwellings) Order 1992/549.
[2a] As to the demand notices:
(1) Council Tax (Administration and Enforcement) Regulations 1992/613, reg. 17 entitled 'Interpretation and application of Part V' reads
'In this part -
"demand notice" means the notice required to be served by regulation 18(1);'
Part V of Council Tax (Administration and Enforcement) Regulations 1992/613 is entitled 'Billing' and contains regulations 17 to 31 inclusive.
[2b] For an article on who Local Government Finance Act 1992 imposes liability for council tax upon, see this article by the same author.
[3] Council tax is set in accordance with Chapter III of Local Government Finance Act 1992. Chapter III, entitled 'Setting of Council Tax' and Chapter III contains sections 30 to 38.
[4] Local Government Finance Act 1992, section 5 is entitled 'Different amounts for dwellings in different valuation bands' and reads:
'(1) The amounts of council tax payable in respect of dwellings situated in the same billing authority's area (or the same part of such an area) and listed in different valuation bands shall be in the proportion-
6: 7: 8: 9: 11: 13: 15: 18
where
6 is for dwellings listed in valuation band A, 7 is for dwellings listed in valuation band B, and so on.
| Range of values |
Valuation Band |
| Values not exceeding £40,000 |
A |
| Values exceeding £40,000 but not exceeding £52,000 |
B |
| Values exceeding £52,000 but not exceeding £68,000 |
C |
| Values exceeding £68,000 but not exceeding £88,000 |
D |
| Values exceeding £88,000 but not exceeding £120,000 |
E |
| Values exceeding £120,000 but not exceeding £160,000 |
F |
| Values exceeding £160,000 but not exceeding £320,000 |
G |
| Values exceeding £320,000 |
H |
(4) The Secretary of State may by order, as regards financial years beginning on or after such date as is specified in the order-
(a) substitute another proportion for that which is for the time being effective for the purposes of subsection (1) above;
(b) substitute other valuation bands for those which are for the time being effective for the purposes of subsection (2) or (3) above.
(4A) The power under subsection (4)(b) above includes power to make provision for a different number of valuation bands from those which are for the time being effective for the purposes of subsection (2) or (3) above.
(5) No order under subsection (4) above shall be made unless a draft of the order has been laid before and approved by resolution of the House of Commons.
(6) Any reference in this Part to dwellings listed in a particular valuation band shall be construed as a reference to dwellings to which that valuation band is shown as applicable in the billing authority's valuation list.'
[5a] For instance, Local Government Finance Act 1992, section 13A gives the Billing Authority a power to decide to reduce the amount of council tax due. Section 13A is entitled 'Reductions by billing authority' and reads:
'(1) The amount of council tax which a person is liable to pay in respect of any chargeable dwelling and any day (as determined in accordance with sections 10 to 13)-
(a) in the case of a dwelling situated in the area of a billing authority in England, is to be reduced to the extent, if any, required by the authority's council tax reduction scheme (see subsection (2));
(b) in the case of a dwelling situated in the area of a billing authority in Wales, is to be reduced to the extent, if any, required by any council tax reduction scheme made under regulations under subsection (4) that applies to that dwelling;
(c) in any case, may be reduced to such extent (or, if the amount has been reduced under paragraph (a) or (b), such further extent) as the billing authority for the area in which the dwelling is situated thinks fit.
(2) Each billing authority in England must make a scheme specifying the reductions which are to apply to amounts of council tax payable, in respect of dwellings situated in its area, by-
(a) persons whom the authority considers to be in financial need, or
(b) persons in classes consisting of persons whom the authority considers to be, in general, in financial need.
(3) Schedule 1A (which contains provisions about schemes under subsection (2)) has effect.
(4) The Welsh Ministers may by regulations-
(a) require a person or body specified in the regulations to make a scheme specifying the reductions which are to apply to amounts of council tax payable, in respect of dwellings to which the scheme applies, by persons to whom the scheme applies,
(b) impose requirements on that person or body regarding the matters which must be included in that scheme, and
(c) make other provision for and in connection with such schemes.
(5) Schedule 1B (which contains further provisions about regulations under subsection (4) and about schemes under those regulations) has effect.
(6) The power under subsection (1)(c) includes power to reduce an amount to nil.
(7) The power under subsection (1)(c) may be exercised in relation to particular cases or by determining a class of case in which liability is to be reduced to an extent provided by the determination.
(8) No regulations under subsection (4) are to be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, the National Assembly for Wales.
(9) In this Part “council tax reduction scheme” means a scheme under subsection (2) or regulations under subsection (4).'
So an application can be made by the taxpayer, to the Billing Authority, for a reduction to the amount of council tax otherwise due.
See further:
(1) SC v East Riding of Yorkshire Council [2014] RA 279;
(2) Morgan v Warwick DC [2015] RVR 224; [2015] CLY 1681; and
(3) Fenwick v Northumberland County Council VT00001008 (25.3.21)
[5b] As to multiple persons liable, see:
(1) section 6 - explained in this article by the same author;
(2) section 8 - entitled 'Liability of spouses', which reads:
'(1) Where-
(a) a person who is liable to pay council tax in respect of any chargeable dwelling of which he is a resident and any day is married to, or is the civil partner of, another person; and
(b) that other person is also a resident of the dwelling on that day but would not, apart from this section, be so liable,
those persons shall each be jointly and severally liable to pay the council tax in respect of the dwelling and that day.
(2) Subsection (1) above shall not apply as respects any day on which the other person there mentioned falls to be disregarded for the purposes of discount by virtue of paragraph 2 (the severely mentally impaired) or 4 (students etc.) of Schedule 1 to this Act.
(2A) Subsection (1) also does not apply in relation to a chargeable dwelling in Wales as respects any day on which the other person mentioned falls to be disregarded for the purposes of discount by virtue of falling within, and meeting the conditions prescribed in, Class G (care leavers) as prescribed in regulation 5(7) of the Council Tax (Additional Provisions for Discount Disregards) Regulations 1992 (S.I. 1992/552).
(3) For the purposes of this section, two persons are to be treated as married to, or civil partners of, each other if they are living together as if they were a married couple or civil partners.'
(3) Council Tax (Administration and Enforcement) Regulations 1992/613:
(a) reg. 17 entitled 'Interpretation and application of Part V' reads:
'In this Part-
...
“joint taxpayers” means two or more persons who are, or in the opinion of the billing authority will be, jointly and severally liable to pay to the authority an amount in respect of council tax in respect of a particular dwelling and a day (whether such liability arises by virtue of section 6(3) or (4)(b), 7(4) or (5), 8(4) or (5) or 9(1) of the Act);
“joint taxpayers' notice” means a notice served in accordance with regulation 28;'
(b) reg. 27 is entitled 'Joint taxpayers', and reads:
'(1) This regulation applies in the case of joint taxpayers; but its application to joint taxpayers on whom a joint taxpayers' notice is served is subject to regulation 28A.
(2) In a case to which this regulation applies-
(a) regulation 18 (the requirement for demand notices) has effect as if in paragraph (1) for the words “every liable person” there were substituted the words “at least one of the joint taxpayers”;
(b) regulation 20 (demand notices; payments required) has effect as if-
(i) the assumption referred to in sub-paragraph (c) of paragraph (3) is made as regards such of the joint taxpayers as on the day of issue of the demand notice satisfy the conditions referred to in that sub-paragraph;
(ii) the assumption referred to in sub-paragraph (g) of paragraph (3) is made as regards such of the joint taxpayers in respect of whom on the day of issue of the demand notice a determination has effect as mentioned in that sub-paragraph;
(c) regulation 21 (council tax: payments) has effect as if-
(i) in paragraphs (1) and (4), for the words “the liable person” there were substituted the words “one or more of the joint taxpayers”;
(ii) in paragraph (3), for the words after “that Part” there were substituted the following-
“subject-
(a) in the case of payments in accordance with a Part II scheme, to provision included in the scheme pursuant to paragraph 8(6) of Part II of that Schedule; and
(b) in the case of joint taxpayers, to regulations 28 and 28A.”;
(iii) in paragraph (5), for the words “a liable person” there were substituted the words “one or more of the joint taxpayers”; and
(iv) in paragraph (5), there were inserted at the end the words “: but, subject to regulation 28A(1), a billing authority may not enter into an agreement after the issue of the demand notice concerned with a joint taxpayer on whom that notice was not served”;
(d) regulation 23 (failure to pay instalments) has effect as if references to the liable person and to an amount becoming payable by the liable person were references to such of the joint taxpayers as have been served with a demand notice and to an amount becoming payable by them, respectively;
(e) regulation 29 (collection of penalties) has effect as if-
(i) for paragraph (1), there were substituted the following-
“(1) Subject to paragraphs (2) and (3), where a penalty is payable to a billing authority under any of sub-paragraphs (1) to (3) of paragraph 1 of Schedule 3 to the Act [ or under any of regulations 11 to 13 of the Detection of Fraud Regulations] 2 by a person who is one of joint taxpayers, it may be collected by the service by the authority on the person of a notice requiring payment of the penalty on the expiry of such period (being not ss than 14 days) after the issue of the notice as is specified in it.”; and
(ii) paragraph (4) were omitted; and
(f) paragraph 9 (cessation of instalments) of Schedule 1 does not apply unless-
(i) every person on whom the demand notice was served has ceased to be a joint taxpayer;
(ii) none of those persons is, as regards any part of the period to which the demand notice relates, solely liable to pay an amount in respect of council tax as regards the dwelling concerned; and
(iii) no other person who, as regards any part of that period, was jointly and severally liable with any of those persons as regards the dwelling concerned, is a liable person (whether his liability is sole or joint and several) as regards the dwelling concerned'
(c) reg. 28 is entitled 'Joint taxpayers' notice', and reads:
'(1) An amount shall not be payable by a person who is one of joint taxpayers and on whom a demand notice has not been served unless a notice (“joint taxpayers' notice”) is served on him in accordance with the following provisions of this regulation.
(2) A joint taxpayers' notice may not be served on a person after the expiry of the period of six years beginning with the first day of the financial year to which the notice relates.
(3) Where-
(a) a joint taxpayers' notice is served during the relevant year; and
(b) the person on whom (as one of the joint taxpayers) a demand notice for that year was served (or, if more than one person was so served, each of them) is not on the day of issue of the notice one of the joint taxpayers; and
(c) the unpaid balance of the estimated amount has not become due as mentioned in paragraph (3) or (4) of regulation 23, the notice shall require the payment of the adjusted amount.
(4) For the purposes of paragraph (3)-
“the adjusted amount” means an amount equal to the lesser of
(a) the billing authority's estimate of the chargeable amount made as respects the period to which the joint taxpayers' notice relates; and regulation 20(3) shall have effect for these purposes as it has effect in a case to which regulation 27 applies and as if references in regulation 27(2)(b) to the demand notice were references to the joint taxpayers' notice; and
(b) the relevant sum; and
“the relevant sum” means an amount equal to the difference between-
(a) the amount estimated or last estimated as regards the dwelling concerned-
(i) for the purposes of an agreement under regulation 21(5); or
(ii) under regulation 20(2) for the purposes of the demand notice or any subsequent notice given under paragraph 10 of Schedule 1; and
(b) the aggregate of the amounts paid to the authority under any such agreement or notice before the issue of the joint taxpayers' notice.
(5) Subject to regulation 28A(1), the amount required to be paid under paragraph (3) shall be payable by instalments of such amounts, and at such intervals and on such days in each interval, as are specified in the notice;
provided that the number of instalments shall not be less than the number of instalments payable under the agreement, the demand notice or any subsequent notice given under paragraph 10 of Schedule 1, as the case may be, as regards the period beginning on the day on which the joint taxpayers' notice is served and ending on the last day of the relevant year.
(6) A joint taxpayers' notice which is issued after the end of the relevant year, or after the unpaid balance of the estimated amount has become due as mentioned in paragraph (3) or (4) of regulation 23, shall (as the billing authority determines) require payment of the amount concerned-
(a) on the expiry of such period (being not less than 14 days) after the issue of the notice as is specified in it; or
(b) by instalments of such amounts as are specified in the notice, payable at such intervals and on such day in each interval as is so specified.'
[6] In Regentford Ltd v Thanet DC [2004] EWHC 246 (Admin) [2004] 2 WLUK 477, Lightman J gave a description of the council tax system, under the heading 'Statutory Scheme', from paragraphs 4 to 13 (Note: (1) the 'Act' is the Local Government Finance Act 1992; and (2) the Regulations are the Council Tax (Administration and Enforcement) Regulations 1992)):
'4. Chapter I is headed “Main Provisions”. Section 1 of the Act provides that each billing authority (and the Council is such a billing authority) shall each financial year levy and collect council tax payable in respect of dwellings (defined in section 4 as domestic hereditaments) situated within its area. Section 2 provides that liability to pay council tax shall be determined on a daily basis. Section 4 provides that council tax is payable in respect of any dwelling which is not exempt. Section 5 provides that different amounts of council tax are payable in respect of dwellings in different valuation bands. Section 6 provides in a descending order of priority a list of persons liable to pay council tax in respect of a dwelling. At the top of the list is the resident freehold owner, followed by the resident leasehold owner holding a term of 6 months or more, followed by certain specified other residents, followed at the bottom of the list by non-resident freehold or leasehold owners. Section 8 and the Council Tax (Liability for Owners) Regulations 1992 together provide that the owner of property in multiple occupation may have primary liability for council tax, displacing the order in section 6. Section 16 provides for an appeal to a valuation tribunal by any person aggrieved by a decision that he is liable to pay council tax in respect of a dwelling (e.g. as owner of a property in multiple occupation).
5. Chapter 3 is headed “Setting of Council Tax”. Section 30 provides for the setting each financial year of the amounts of council tax for each different category of dwelling. The amount set for each category does not set the amount for each person liable, for any person liable may be entitled to varying degrees of exemption and discount. Section 33 provides how the billing authority shall calculate the amount of its council tax. Section 36 provides for the calculation of council tax for the different valuation bands.
6. Schedule 2 provides for the collection of council tax. It empowers the Secretary of State to make regulations which may make provision: (a) that the authority must serve a notice or notices on the person liable to pay council tax stating the chargeable or estimated amount and what payment he is required to make; and (b) that no payment on account of the chargeable amount need be made unless a notice requires it (see paragraph 4(a) and (b)).
7. Schedule 4 provides for enforcement. Paragraph 1 provides that the Secretary of State may make regulations for the recovery of any sum which has become payable to the billing authority and unpaid. Paragraph 3 provides that the regulations may provide that the authority may apply to a magistrates court for a liability order against the person by whom the sum is payable, and the court shall make the order if it is satisfied that the sum has become payable by the person concerned and has not been paid. Paragraph 4 provides that the regulations may include provision prescribing steps to be taken before an application may be made and that no application may be made after a prescribed period has expired.
8. The Regulations were made pursuant to the provisions of the Act to which I have referred. Part V of the Regulations is headed “Billing”. It commences with an interpretation regulation, namely regulation 17. Regulation 17(3) defines “chargeable amount” as meaning the amount the liable person is or will be liable to pay.
9. Regulation 18 requires a billing authority each financial year to serve a demand notice on every liable person in accordance with regulations 19 to 21. Regulation 19 provides that the demand notice is to be served on or as soon as practicable after the date the billing authority first sets an amount of council tax for the relevant year for the category of dwellings which include the chargeable dwelling to which the notice relates. Regulation 20(1) reads as follows:
“(1) If the demand notice is issued before or during the relevant year, the notice shall require the making of payments on account of [the billing authority's estimate of the chargeable amount.]”
10. Regulations 20(1)–(4), 21(7) and 22 make provision for demands for payment on account of council tax before and during the relevant year on the basis of estimates of the chargeable amount. Regulation 22 provides that no payment on account of the chargeable amount need be made unless a notice is served under Part V demanding it. Regulation 24 provides for adjustment where the chargeable amount proves to be greater or lesser than the estimate. Regulation 20(5) provides that, if the demand is issued after the end of the relevant year, it shall require payment of the chargeable amount.
11. Regulation 21 makes provision for payment by instalments and Regulation 23 lays down a regime applicable specifically and only to cases of default in payments of instalments.
12. Regulation 31 provides for final adjustments of the amounts stated in demands.
13. Regulation 32 provides that Regulations 33–53 shall apply for the recovery of a sum which has become payable to a billing authority under Part V of the Regulations. Regulation 33 requires as a preliminary to obtaining a liability order (save in case of default in payment of instalments in respect of which a separate regime is laid down in Regulation 23) that a final notice should be served and that a final notice may be served in respect of an amount “after it has become due”.Regulation 34(3) provides that no application may be made for a liability order in respect of a sum after the period of six years beginning with the day on which it became due under Part V of the Regulations. Regulation 34(6) provides that the court shall make the liability order if it is satisfied that the sum has become payable by the defendant and has not been paid.'
[7] Council Tax (Administration and Enforcement) Regulations 1992/613, reg. 28 is entitled 'Joint taxpayers' notice', and reads:
'A joint taxpayers' notice may not be served on a person after the expiry of the period of six years beginning with the first day of the financial year to which the notice relates.'
So the same 6 year period applies both for the demand notices and joint taxpayers' notices.
[8] A key date to identify, is the date the council tax become 'due', under Part V of Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613). Part V is the Part that contains reg.17 to 31 inclusive. In Regentford Ltd v Thanet DC [2004] EWHC 246 (Admin); [2004] 2 WLUK 477 ('Regentford'), Lightman J determined that:
(1) council tax liability, became a duty to pay, when a demand notice was served; and
(2) the service of the demand notice made the council tax due. Lightman J put it this way, at paragraph 24:
'...the council tax became due when demanded ... (and not before)...'
In reaching this conclusion, Lightman J said in Regentford, at paragraphs 15 to 17:
'[Counsel for the Billing Authority] has submitted the whole scheme of the legislation is to draw a distinction between liability to council tax in the sense of exposure to a possible duty to pay council tax and an actual duty to pay council tax, and that the potential liability can only be triggered into an actual duty to pay by service of a demand for payment.
In my judgment Mr Mould is correct. The liability to pay council tax requires for its transformation into a duty to pay a demand by the billing authority. This is reflected in Regulation 18(1) (made pursuant to Schedule 2 paragraph 2(4)(a) of the Act) which requires a billing authority in each financial year to serve demand notices on every liable person in accordance with Regulations 19 to 21. Regulation 22 in no way detracts from this general proposition. It merely spells out that no payment on account of the chargeable amount need be made unless a demand notice is served under Regulation 20(1) requiring such a payment on account. The service of the demand notices make the amount of the liability demanded a sum which is due and payable, the necessary preclude to a final notice under Regulation 33(2) and the commencement of the 6 year limitation period under Regulation 34(3).
There is an analogy between liability for council tax and the liability (in the ordinary case) of a guarantor who is at all times exposed to a potential duty to discharge the guaranteed obligation, but a duty which is only triggered when a demand is made of him and the limitation period commences at that date.'
Lightman J then concluded, at paragraph 18:
'I therefore hold that duty to pay council tax only arose ....when the demand was served...'
Given paragraph 18 is being considered, it is probably a convenient place to point out that there may have been a slip Lightman J's judgment, at paragraph 18. To explain, paragraph 18 of Regentford reads:
'I therefore hold that duty to pay council tax only arose on the 2nd October 2002 when the demand was served and accordingly the full six years' council tax was due when the liability orders were made.'
What is problematic with this sentence, is the words 'when the liability orders were made'. This should be, in the author's view, 'when the Billing Authority's application for council tax liability orders was made', since there can be a greater period of time than 6 years, between: (1) date liability for council tax first arose; and (2) the date the council tax liability order (for that council tax liability) was made. There just needs to be less than 6 years between: (1) the date liability for council tax first arose; and (2) the date of the Billing Authority's application to the Magistrates Court for council tax liability orders (for that council tax liability).
[9] As stated in reg.18(1), the general obligation is subject to reg.18(2). Reg.18(2) provide specifics about serving demand notices in relation to: (1) different financial years; and (2) different dwellings. So, for completeness, reg.18, entitled 'The requirement for demand notices' reads:
'(1) Subject to paragraph (2), for each financial year a billing authority shall serve a notice in writing on every liable person in accordance with regulations 19 to 21.
(2) Where, but for this paragraph, notices would fall to be served in accordance with this Part-
(a) at the same time; and
(b) in respect of the same dwelling,
in relation to a financial year not then ended and any preceding financial year, nothing in paragraph (1) shall require a billing authority to serve more than one notice.
(3) If a person is liable in any financial year to pay to the same billing authority different chargeable amounts in respect of different dwellings, a demand notice shall be served in respect of each chargeable amount.'
[10] For completeness, Council Tax (Administration and Enforcement) Regulations 1992/613, reg. 19, entitled 'Service of demand notices', reads (in full):
'(1) The demand notice is to be served on or as soon as practicable after the day the billing authority first sets an amount of council tax for the relevant year for the category of dwellings which includes the chargeable dwelling to which the notice relates.
(2) For the purposes of paragraph (1), “category” shall be construed in accordance with section 30(4) of the Act; and where a demand notice is served before 1st April 1993, a dwelling shall be treated as included in the category in which, in the opinion of the billing authority, it will be included on 1st April 1993.'
[11] In Regentford Ltd v Thanet DC [2004] EWHC 246 (Admin) [2004] 2 WLUK 477, Lightman J explained it this way, at paragraph 19:
'Regulations 18 and 19 lay down on billing authorities each financial year an obligation to serve a demand notice on every person liable “on or as soon as practicable after the day the billing authority first sets an amount of council tax for the relevant year for the category of dwellings which includes the chargeable dwelling to which the notice relates".'
[12] The relevant date though is drafted differently. It is, typically, '…1st April in the relevant year...' see regulation 5(1) of Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations (SI 1989/1058).
[13]In Hardy v Sefton MBC [2006] EWHC 1928; [2007] RA 140, Walker J rather weakly said on this proposition of law: 'For the purposes of the present appeal, I am prepared to assume that where such prejudice is established the Magistrates' Court has jurisdiction to refuse a liability order.' (paragraph 50).
On the non-binding nature of of a proposition of law 'assumed', see Independent Schools Council v Charity Commission [2012] Ch 214, wherein it was stated, at paragraph 92:
'...As matter of general law, a decision of a court does not give rise to a legally binding precedent where a point of law has been assumed or not debated even where that point of law is a necessary component of the decision: see per Sir Nicolas Browne-Wilkinson V-C in In re Hetherington, decd [1990] Ch 1, 10g, subsequently approved by the Court of Appeal in R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955.'
In R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 ('Kadhim'), the Court of Appeal (Buxton LJ giving the judgment of the Court of Appeal), under the heading 'The rule as to issues assumed without argument', the Court of Appeal said, at paragraphs 33 to 37:
'We ... conclude, not without some hesitation, that there is a principle stated in general terms that a subsequent court is not bound by a proposition of law assumed by an earlier court that was not the subject of argument before or consideration by that court. Since there is no direct Court of Appeal authority to that general effect we should indicate why we think the principle to be justified.
First, even though it is assumed, on the basis of some observations in the House of Lords in Davis v Johnson [1979] AC 264, that the categories of exemption stated in Young v Bristol Aeroplane Co Ltd [1944] KB 718 are closed, National Enterprises Ltd v Racal Communications Ltd [1975] Ch 397 establishes that that is not so in respect of the present line of authority: see paragraph 31 above. That consideration is reinforced by the fact that Lord Diplock, in expressing his view in Baker v The Queen[1975] AC 774, 788... did not think that it involved any departure from the orthodox rules of precedent.
Second, in each of the authorities cited the rule is in fact stated in general terms, even though the facts addressed may be in a narrower compass. Those statements were, in our respectful view, properly synthesised by Sir Nicolas Browne-Wilkinson V-C in In re Hetherington, decd [1990] Ch 1.
Third, we have to remember that it is the reasons that bind, and not the decision. Any formulation of a rule of precedent must be flexible enough to respect that basic truth. That is what led Lord Diplock to say in Baker v The Queen[1975] AC 774, 788c... that whilst an assumed proposition may be part of the ratio, it does not have precedential value. To hold otherwise would be to come close to permitting the outcome of the case, rather than its reasoning, to dictate its status.
Fourth, it is very well recognised that a court can identify a part of the ratio that has not been the subject of argument, and deny it precedential value... But if it were the case that all parts of the ratio, as defined for instance in paragraph 16 above, bind, then it would seem that the judge would not be free to indicate that one of the assumptions necessary to his decision did not have precedential value. It was recognition of the need to leave judges that freedom, and in an appropriate case to enable a subsequent court equally to conclude that a proposition that was part of the ratio none the less had not been the subject of decision, that led Russell LJ to speak as he did in the last sentence of the extract from his judgment in National Enterprises Ltd v Racal Communications Ltd [1975] Ch 397, 406 cited in paragraph 29 above.'
Under a heading that included 'The ambit of the rule', the Court of Appeal said, at paragraph 38:
'Like all exceptions to, and modifications of, the strict rule of precedent, this rule must only be applied in the most obvious of cases, and limited with great care. The basis of it is that the proposition in question must have been assumed, and not have been the subject of decision. That condition will almost always only be fulfilled when the point has not been expressly raised before the court and there has been no argument upon it: as Russell LJ went to some lengths in National Enterprises Ltd v Racal Communications Ltd to demonstrate had occurred in the previous case Davies Middleton & Davies Ltd v Cardiff Corpn 62 LGR 134. And there may of course be cases, perhaps many cases, where a point has not been the subject of argument, but scrutiny of the judgment indicates that the court's acceptance of the point went beyond mere assumption. Very little is likely to be required to draw that latter conclusion: because a later court will start from the position, encouraged by judicial comity, that its predecessor did indeed address all the matters essential for its decision.'
[14] In Hardy v Sefton MBC [2006] EWHC 1928; [2007] RA 140 ('Hardy'), Walker J said, under the heading 'Jurisdiction Issue', at paragraph 41:
'...I am concerned with occasions when a Tribunal is called on, under s 16 of the 1992 Act, to examine a decision of a billing authority that a dwelling is a chargeable dwelling, or that the person in question is liable to pay council tax in respect of that dwelling, or to examine any calculation made by such an authority of an amount which the person is liable to pay to the authority in respect of council tax. Is the Tribunal limited to a jurisdiction (“the narrow jurisdiction”) of deciding whether, on the true construction of the 1992 Act and relevant regulations, the facts of the case before it show that the dwelling is a chargeable dwelling, that the person in question is liable to pay council tax in respect of such a dwelling, or that the calculation made by the authority of an amount which that person is liable to pay to the authority in respect of council tax is or is not accurate? Or does it have a wider jurisdiction (“the wide jurisdiction”) entitling it to investigate whether the billing authority has acted in breach of a duty owed by it to the other party to the appeal and if so to depart from the decision which would otherwise be appropriate?'
Later, Walker J said in Hardy, at paragraphs 50 to 53:
'The Magistrates' Court is required by reg.34(6) of the [Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613)] to make a liability order “if it is satisfied that the sum has become payable by the defendant and has not been paid.” This means that the Magistrates' Court must enquire into questions as to whether the tax payer is entitled to set off monies owed by the billing authority, or is entitled to say in law that the billing authority is precluded from asserting any liability to pay.
In relation to valuation tribunals no similar words are used by the statutes or by relevant regulations. Nor, given the analysis in Regentford, is there any need to read such words in. As it seems to me, a wide range of questions could possibly arise when considering whether there is some obstacle in law to an assertion by the billing authority that liability to pay has arisen. The Magistrates' Court is better suited to examining the broad range of questions which might arise, and which if examined in a Valuation Tribunal might take it outside that tribunal's particular specialisms. Moreover, reading in a wide jurisdiction for the tribunal would have the consequence that the reasoning in Regentford could not stand. This is because Administration and Enforcement Regulations regulation 57 has the effect that the Magistrates' Court may not consider a matter which could be the subject of an appeal to the tribunal. This point was not taken in Regentford, but if it is right then the result would be that the analysis in Regentford would be wrong. That seems to me to be an undesirable conclusion.
Accordingly, I conclude that the Tribunal has no jurisdiction to investigate the question whether the respondent was in breach of Administration and Enforcement Regulations regs 18 and 19....
[The taxpayer's] argument as to the breach of Administration and Enforcement Regulations reg 19 fails because the Tribunal has no jurisdiction to consider that question. In these circumstances the appeal must be dismissed.'
[15] In Hakeem v Valuation Tribunal Service (also known as The Queen on the Application of Abdul Hakeem v Valuation Tribunal Service v London Borough of Enfield) [2010] EWHC 152 (Admin), Cox J:
(1) fortified her conclusions:
'Having been referred to his analysis at paragraphs 41, 46, 51 and 52 of the judgment, I agree, and for the reasons which he there set out, that the Valuation Tribunal has no jurisdiction to investigate the question whether the billing authority was in breach of regulations 18 and 19.' (paragraph 26)
(2) decided a link point. It was argued before her that the VTE would have jurisdiction to decide the issue, if it had not been considered by the Magistates Court. But Cox J rejected this argument. Jurisdiciton of the VTE does not work like that. Cox J said, at paragraph 26:
'This jurisdictional issue, as it seems to me, is not dependent on the question whether the Magistrates' Court has or has not considered it, as this [taxpayer] contends, the court in this case apparently not having considered the matter. [Counsel for the billing authority] submission, that the fact that the point may not have been raised in the Magistrates' Court cannot bestow upon the Valuation Tribunal a jurisdiction which it simply does not have, is entirely correct.'