Council Tax - Enforcement - Split Mags Ct. and Valuation Trib. Roles

Author: Simon Hill
In: Bulletin Published: Sunday 20 February 2022

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Liability for council tax is imposed by the Local Government Finance Act 1992 ('1992 Act'), in particular for England and Wales, sections 6 to 9 inclusive, with the key section (in most cases) being section 6, entitled ‘Persons liable to pay council tax’[1]. Where a local authority (billing authority) alleges that a person (the alleged taxpayer) has failed to pay due council tax in respect to a chargeable dwelling, that billing authority may issue an application by way of complaint to the Magistrates Court, seeking that the Magistrates Court issue a council tax liability order[2a] against that person/alleged taxpayer.

The alleged taxpayer may however dispute that he/she is liable for the council tax, as so decided by the billing authority and alleged in its complaint to the Magistrates Court, for one or more reasons (whether in respect to liability or quantum, or both).

In such a situation, it might be expected that the alleged taxpayer could simply attend the Magistrates Court when summoned, and be permitted before the Magistrates Court to set out his/her reasons for why he/she is not liable for the sum alleged - with the hope that the Magistrates Court will accept the alleged taxpayer's reasons/position, and refuse to make the council tax liability order. However, the relevant law on this first stage in 'enforcement' - is more complex than that. At its core, there is a separation of roles between 2 different forums/bodies; between: (1) the Magistrates Court; and (2) the Valuation Tribunal of England ('Valuation Tribunal or 'VTE'), which alleged taxpayers wishing to dispute their liability for council tax (at all, or in part), will need to familiarise themselves with; each forum/body has its own exclusive jurisdiction[2b] - without overlap. Each can only deal with certain issues. This article will consider this jurisdictional divide as between these two forums/bodies, and in particular, consider what arguments/defences cannot be run in the Magistrates Court in opposition to a council tax liability order being made against the alleged taxpayer.

Appeals to the Valuation Tribunal

A convenient starting point for our analysis[2c], is to consider what billing authority council tax decisions can be appealed to a Valuation Tribunal. The relevant provision is section 16(1)[3a] of the 1992 Act; section 16(1) provides:

'A person may appeal to a valuation tribunal if he is aggrieved by -

(a) any decision of a billing authority that a dwelling is a chargeable dwelling, or that he is liable to pay council tax in respect of such a dwelling; or

(b) any calculation made by such an authority of an amount which he is liable to pay to the authority in respect of council tax'[3b]

In summary therefore, a person who is 'aggrieved' by a billing authority's decision (which would include a 'designation') in respect to:

(1) whether a dwelling is a chargeable dwelling;

(2) whether he/she is the person upon whom council tax liability is imposed, by the 1992 Act, in respect to a chargeable dwelling; or

(3) the calculation/quantum[3c] of council tax said to be due from him/her, to the billing authority;

may issue an appeal in the Valuation Tribunal, for a determination by the Valuation Tribunal on that/those issue(s). I shall label these, the 'Three Section 16(1) Grievances'

By way of example, the billing authority in Wiltshire Council v Piggin [2016] PTSR 845 ('Piggin'), had decided that a certain person, the alleged taxpayer, was liable to pay council tax in relation to a certain chargeable dwelling. The alleged taxpayer disputed he was so liable, contending it was a trust that was liable instead. Consequently, the alleged taxpayer grievance was with the billing authority's decision that he was liable to pay council tax on a chargeable dwelling - a subsection 16(1)(a) (second part) defence - one of the Three Section 16(1) Grievances (category (2) above). See Piggin, paragraph 17.

Sequence of Events 

Though this might see rather obvious, it is worth stating that the sequence of events will be that the billing authority makes its decisions as to: (1) whether a dwelling is a chargeable dwelling; (2) who is liable for the council tax for the chargeable dwelling, and (3) the quantum of council tax due, before it commences proceedings in the Magistrates Court for a council tax liability order. So the ability of an alleged taxpayer, to challenge these billing authority decisions, in the Valuation Tribunal, arises (subject to the section 16(4) of the 1992 Act written notice procedure being completed - see below) before the billing authority can take non-payment of the council tax, to the Magistrates Court, for a council tax liability order. Indeed, these billing authority decisions occur even earlier, before the billing authority demands the council tax.

Three Section 16(1) Grievances - Correct Forum/Body for Deployment

As is apparent from section 16(1), where a person/alleged taxpayer is aggrieved by any of the 3 billing authority decisions identified in section 16(1) above, that person is able (subject to the section 16(4) of the 1992 Act written notice procedure being completed) to issue an appeal in the Valuation Tribunal. That is clear from the above. The linked question then is: if that same person does not appeal (has not appealed) to the Valuation Tribunal, can that person plead the same grievance/defence, in the Magistrates Court, in the event that the billing authority issues an application by way of a complaint in the Magistrates Court, seeking a council tax liability order against that person?

The answer is, the person cannot.

This is because, in the Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613)(the '1992 Regs'), regulation 57, entitled 'Miscellaneous provisions', contains reg.57(1) - a prohibition provision. Reg.57(1) states:

'Any matter which could be the subject of an appeal under section 16 of the Act or regulations under section 24 of the Act may not be raised in proceedings under this Part.'

This prohibition provision (the 'Prohibition') prohibits all/any of the Three Section 16(1) Grievances being raised in any 'proceedings under this Part'. As to what proceedings come within the phrase, 'proceedings under this Part':

(1) In R. (on the application of Salmon) v Feltham Magistrates' Court [2008] EWHC 3507 (Admin)('Salmon'), Stadlen J said, at paragraph 40 (after quoting paragraph 57(1) of the Council Tax (Administration and Enforcement) Regulations 1992):

“This Part” is a reference to Part 6 of the Regulations which deal with enforcement and include section (sic) 34, which empower the billing authority to apply to a Magistrates' Court for an order against the person by whom an amount is payable by virtue of a notice having not been complied with[4].' (note: section 34 should read reg.34)

(2) William Davis J said in Piggin in relation to reg.57, at paragraph 19, that 'The proceedings to which the regulation relates are enforcement proceedings before a magistrates' court.'

So, the combined effect of section 16(1) and reg.57(1) Prohibition is that, the Three Section 16(1) Grievances:

(1) cannot be argued/relied upon in the Magistrates Court, in opposition to a billing authority's application by way of a complaint, for a council tax liabilty order against the alleged taxpayer(defendant);

(2) can only be raised in, and determined by, the Valuation Tribunal.

Confirming this analysis:

(a) in Piggin, William Davis J said, at paragraphs 23-25:

'...regulation 57(1) of the 1992 Regulations establishes clearly and unequivocally that the substantive merits of the billing authority's decision in terms of the chargeability of the dwelling...or the liability of the individual...those matters are matters for the valuation tribunal. They "may not be raised" in the enforcement proceedings.

...a magistrates' court has jurisdiction in particular cases depending upon the extent of that jurisdiction as provided by statute. In this case, the statute is entirely plain. The substantive issues are to be raised before the tribunal. They may not be raised in the enforcement proceedings.'[5]

Earlier in Piggin, William Davis J said, in respect to the defendant's argument that he was not liable for the council tax (the 2nd of the Three Section 16(1) Grievances), at paragraph 20[8]:

'...his argument before the lower court fell clearly within the scope of section 16(1). Therefore, by virtue of regulation 57 this was a matter that could have been determined by way of an appeal to the valuation tribunal and was not in those circumstances a matter that could be raised by way of defence in proceedings in the magistrates' court.'

In reaching his decision, Williams Davis J followed Salmon and did not follow Shah v Croydon London Borough Council [2015] RVR 41 (Andrews J)[6]

(b) In Salmon, a council tax case, Stadlen J said, at paragraph 44:

'...it is simply not part of the function of the Magistrates' Court in hearing a summons such as that in this case to go behind the making of the demand notice to inquire into the validity of such an underlying decision as whether the defendant to the summons is the person liable to pay council tax for the property in respect of that period for that amount. Those are matters in respect of which, if there is a sense of grievance, the defendant is entitled to exercise his right of appeal to the Tribunal.'[7]

(c) in Okon v London Borough Of Lewisham [2016] EWHC 864 (Ch); [2016] BPIR 958 ('Okon'), a bankruptcy case, Mr Robin Hollington QC (sitting as a Deputy Judge of the Chancery Division) quoted from HHJ Hodge QC's judgment in Yang v. The Official Receiver [2013] EWHC 3577 (Ch), in particular, paragraphs 21[9a]:

'...on an application for a liability order by the billing authority, the magistrates cannot look into the questions (1) whether the property is chargeable; or (2) whether the respondent to the summons is liable to pay the council tax; or (3) whether the calculation of the alleged liability is correct....'

before: (i) noting '...it is in my view entirely consistent with the subsequent Piggin case...' (paragraph 22) and (ii) stating his agreement with it (paragraph 22).

(d) In Lone v Hounslow LBC [2020] 1 WLR 952, Arnold LJ said, at paragraph 38, that reg.57(1) of the 1992 Regulations:

'...prevents an issue that could be the subject of an appeal to the Valuation Tribunal under section 16 from being relied upon by way of defence to an application by the billing authority in a magistrates' court for a liability order enforcing the payment of council tax: see [Okon], para 15.'[9b]

Where Application to Set Aside Council Tax Liability Order

Where a council tax liability order has already been made by the Magistrates Court against the (alleged) taxpayer, and the taxpayer has applied for an order from the Magistrates Court, setting aside the council tax liability order, the issue can arise as to quite what can amount to a genuine and arguable dispute (i.e. the 1st of the 3 Hamdan Conditions (from the decision of Stanley Burton J in R. (on the application of Brighton & Hove City Council) v. Hamdan [2004] EWHC 1800 (Admin) ('Hamdan')) before the Magistrates Court can accede to the set aside application?

Does the division of roles and Piggin affect what lines of defence can amount to a Hamdan 'genuine and arguable dispute'? The answer is yes. In the same way as at a hearing of an application by way of complaint for a council tax liability order initially, the Magistrates Court cannot consider/uphold any of the Three Section 16(1) Grievances, as generating/amounting to a 'genuine and arguable dispute'. If the council tax liability order were set aside, and the original billing authority complaint revived, the taxpayer would not be to run any of the Three Section 16(1) Grievances before the Magistrates Court, so they cannot generate/amount to a 'genuine and arguable dispute' as to liability before the Magistrates Court.

In Okon, the bankrupt/taxpayer's Hamdan set aside application, relying for the 'genuine and arguable dispute', on (only) a Three Section 16(1) Defence, was described by the deputy High Court Judge as 'hopeless'. The deputy High Court Judge said, at paragraph 20 of Okon 'The [bankrupt/taxpayer's] application to set aside the Liability Orders was hopeless, because she had identified no procedural defects in their making.' What she should have done, but had not yet done, was issue an application to the valuation tribunal, to determine[10] (she hoped) that she was not truly liable (2nd of the Three Section 16(1) Grievances). The deputy High Court Judge said, at paragraph 20 'What she intended to do was to appeal to the Valuation Tribunal in order to challenge the fact that she was truly liable, and the Valuation Tribunal was the only body which had jurisdiction to decide the issue of true liability...' Later, he said that '[bankrupt/taxpayer's] should have been advised that such an appeal was a prerequisite of any challenge by her to her underlying substantive liability for the council tax in question...' (paragraph 26(ii))

Appealing the Billing Authority's Decisions to the Valuation Tribunal after a Council Tax Liability Order has been made 

The existence of a council tax liability order in respect certain council tax, does not prevent:

(1) the alleged taxpayer from appealing the billing authority's decisions, which lead to the billing authority demanding the council tax from the alleged taxpayer (and then, seeking the council tax liability order against the alleged taxpayer);

(2) the valuation tribunal from hearing and determining such an appeal, on any or all of the Three Section 16(1) Grievances. In Okon, the deputy High Court Judge said, at paragraph 20 '...the Valuation Tribunal ...could do so notwithstanding the fact that Liability Orders had been made.' In Yang v Official Receiver [2017] EWCA Civ 1465; [2018] 2 W.L.R. 307, Gloster LJ said, at paragraph 27 '...by regulation 57(1) of the [1992 Regs], a debtor who wishes to challenge a liability order that has been made must appeal to the Valuation Tribunal.' (to avoid confusion here - strictly speaking, it is not an appeal against the liability order per se, that is taken to the Valuation Tribunal; what is taken to the Valuation Tribunal is an appeal against the billing authority's section 16(1) decisions)

Where the Alleged Taxpayer is Bankrupt

Where a taxpayer has been adjudged bankrupt: (i) the right to appeal to the valuation tribunal, a billing authority's decision; and (ii) the right to apply to the Magistrates Court, for a Hamdan set aside order, in respect to any tax due at the moment the bankruptcy order was made, will reside in the bankrupt estate, and so be subject to control of the official receiver, or held by the bankrupt's trustee in bankruptcy (from the moment the trustee in bankrupt was appointed - s.306 of the Insolvency Act 1986). In Heath v Tang [1993] 1 W.L.R. 1421, a ordinary civil judgment appeal case, Hoffman LJ said, at 1425 '...in principle a bankrupt cannot in his own name appeal from a judgment against him which is enforceable only against the estate vested in his trustee.' This would cover (ii). 

Procedure Prior to Appealing to the Valuation Tribunal

There is a phrase that must be gone through, before a taxpayer can appeal to the Valuation Tribunal. Subsections 16(4) to (7) of the 1992 Act read:

(4) No appeal may be made under subsection (1) above unless -  

(a) the aggrieved person serves a written notice under this subsection; and

(b) one of the conditions mentioned in subsection (7) below is fulfilled.

(5) A notice under subsection (4) above must be served on the billing authority concerned.

(6) A notice under subsection (4) above must state the matter by which and the grounds on which the person is aggrieved.

(7) The conditions are that-

(a) the aggrieved person is notified in writing, by the authority on which he served the notice, that the authority believes the grievance is not well founded, but the person is still aggrieved;

(b) the aggrieved person is notified in writing, by the authority on which he served the notice, that steps have been taken to deal with the grievance, but the person is still aggrieved;

(c) the period of two months, beginning with the date of service of the aggrieved person's notice, has ended without his being notified under paragraph (a) or (b) above.'

There is an obligation upon the billing authority, to consider and notify the alleged taxpayer of its response to the section 16(4) written notice. That obligation is contained in subsection 16(8), which reads:

'Where a notice under subsection (4) above is served on an authority, the authority shall-

(a) consider the matter to which the notice relates;

(b) include in any notification under subsection (7)(a) above the reasons for the belief concerned;

(c) include in any notification under subsection (7)(b) above a statement of the steps taken.'

Where the taxpayer has gone through this section 16(4) written notice process, the taxpayer can appeal to the Valuation Tribunal[11a], but such appeals are subject to time limits[11b].

Valuation Tribunal Powers

On the Valuation Tribunal's (VTE's) powers on an appeal, in Lone v Hounslow LBC [2020] 1 WLR 952, Arnold LJ said, at paragraphs 33-34:

33 The powers of the Valuation Tribunal upon such an appeal are set out in regulation 38 of the 2009 Regulations. This provides, so far as relevant:

"(1) After dealing with a section 16 appeal the VTE may by order require- (a) an estimate to be quashed or altered; (b) ...(c) the decision of a billing authority to be reversed; or (d) a calculation (other than an estimate) of an amount to be quashed and the amount to be recalculated."

"(10) An order under this regulation may require any matter ancillary to its subject matter to be attended to."

34 Where an order of one of the kinds specified in regulation 38 is made by the Valuation Tribunal, paragraph 10A of Part 3 to Schedule 11 to the Local Government Finance Act 1988 provides, so far as relevant:

"(1)This paragraph applies where a tribunal orders a billing authority-

(a) to reverse a decision that a particular dwelling is a chargeable dwelling for the purposes of Chapter I of Part I of the 1992 Act, or that a particular person is liable to pay council tax in respect of such a dwelling,

(b) to quash or alter an estimate of an amount which a person is liable to pay to the authority in respect of council tax,

(c) to quash a calculation (other than an estimate) of such an amount, or to recalculate the amount, or

(d) ...

"(2) If the order is recorded in accordance with any provision included in Regulations under paragraph A19 or paragraph 1 above, the authority ordered shall- (a) reverse the decision, quash or alter the estimate, quash the calculation, recalculate the amount ...accordingly; and (b) attend to any ancillary matter provided for in the order (such as the repayment of an amount, or the allowance of an amount by way of deduction against a sum due)."'[12]

Regulation 35 of the 2009 Regulations governs the Valuation Tribunal's powers if the parties seek an order by consent.

The Valuation Tribunal has no power to make an order for costs (i.e. it has no power to order a party to pay to the other party, a sum of money, to reimburse that other party, for sums paid to its lawyers - see regulation 12 of the 2009 Regulations)

SIMON HILL © 2022

BARRISTER 

33 BEDFORD ROW  

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole. No attempt has been made to provide an exhaustive review/account of the law in this area.

[1] The Local Government Finance Act 1992, sections 6 to 9 inclusive, provide the relevant provision on who is made liable for council tax. Reference to should be made to all 4 sections.

For brevity, reference here will be made just to parts of section 6. subsections 6(1), which reads:

‘The person who is liable to pay council tax in respect of any chargeable dwelling and any day is the person who falls within the first paragraph of subsection (2) below to apply, taking paragraph (a) of that subsection first, paragraph (b) next, and so on.’

And subsection 6(2), which reads:

'A person falls within this subsection in relation to any chargeable dwelling and any day if, on that day-

(a) he is a resident of the dwelling and has a freehold interest in the whole or any part of it;

(b) he is such a resident and has a leasehold interest in the whole or any part of the dwelling which is not inferior to another such interest held by another such resident;

(c) he is both such a resident and a statutory, secure or introductory tenant of the whole or any part of the dwelling;

(d) he is such a resident and has a contractual licence to occupy the whole or any part of the dwelling;

(e) he is such a resident; or

(f) he is the owner of the dwelling.'

Some of the above terms, in particular 'resident' and 'owner', are defined in subsection 6(5) and 6(6).

For a more detailed article on, upon whom, does the 1992 Act impose liability for council tax, upon, see 'Liability for Council Tax' by the same author, available on this website.

[2a] The Magistrates Court is empowered, and required, to make a council tax liability order, by reg.34(6) of the Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613)('1992 Regs'). Reg.34(6) reads:

'The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.'

The other provisions of reg.34 to the 1992 Regs, deal with the application for the liability order. For completeness, the whole of reg.34, which is entitled 'Application for liability order', provides:

'(1) If an amount which has fallen due under paragraph (3) or (4) of regulation 23 (including those paragraphs as applied as mentioned in regulation 28A(2)) is wholly or partly unpaid, or (in a case where a final notice is required under regulation 33) the amount stated in the final notice is wholly or partly unpaid at the expiry of the period of 7 days beginning with the day on which the notice was issued, the billing authority may, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable.

(2) The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding.

(3) Section 127(1) of the Magistrates' Courts Act 1980 does not apply to such an application; but 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.

(4) A warrant shall not be issued under section 55(2) of the Magistrates' Courts Act 1980 in any proceedings under this regulation.

(5) If, after a summons has been issued in accordance with paragraph (2) but before the application is heard, there is paid or tendered to the authority an amount equal to the aggregate of-

(a) the sum specified in the summons as the sum outstanding or so much of it as remains outstanding (as the case may be); and

(b) a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application up to the time of the payment or tender, the authority shall accept the amount and the application shall not be proceeded with.

(6) The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.

(7) An order made pursuant to paragraph (6) shall be made in respect of an amount equal to the aggregate of-

(a) the sum payable, and

(b) a sum of an amount equal to the costs reasonably incurred by the applicant in obtaining the order.

(8) Where the sum payable is paid after a liability order has been applied for under paragraph (2) but before it is made, the court shall nonetheless (if so requested by the billing authority) make the order in respect of a sum of an amount equal to the costs reasonably incurred by the authority in making the application.'

[2b] 3 points here:

(1) speaking broadly, normally the route to challenging a local authority decision is by issuing judicial review proceedings. It is unusual for Parliament to have created a dedicated appeal procedure for challenging a local authority decision. However, here there is a dedicated appeal procedure - to the Valuation Tribunal. 

(2) A forum/body's jurisdiction circumscribes what it cannot and cannot do.

(a) The Valuation Tribunal is governed by section 15 of the Local Government Finance Act 1988, entitled 'Valuation tribunals'. That section reads:

(1) Valuation and community charge tribunals established under Schedule 11 to the 1988 Act shall be known as valuation tribunals.

(2) Such tribunals shall exercise, in addition to the jurisdiction conferred on them by or under the 1988 Act, the jurisdiction conferred on them by-

(a) section 16 below;

(b) regulations made under section 24 below; and

(c) paragraph 3 of Schedule 3 to this Act.'

Section 16 is, of course, the relevant section for the purpose of this article. For completeness though:

(i) Section 24 of the 1992 Act is entitled 'Alteration of lists' and subsection (1) reads:

'The Secretary of State may make regulations about the alteration by listing officers of valuation lists which have been compiled under this Chapter; and subsections (2) to (10) below shall apply for the purposes of this subsection.'

(ii) paragraph 3 of Schedule 3 of the 1992 Act reads:

'(1) A person may appeal to a valuation tribunal if he is aggrieved by the imposition on him of a penalty under paragraph 1 above.

(1A) A person (“P”) may appeal to a valuation tribunal if aggrieved by the imposition on P of a penalty under regulations under section 14C, unless P agreed to the imposition of the penalty as an alternative to criminal proceedings being taken against P in respect of the act or omission to which the penalty relates.

(2) A person may appeal to a valuation appeal committee if he is aggrieved by the imposition on him of a penalty under paragraph 2 above.

(3) Where a penalty is imposed on a person under paragraph 1 or 2 above, and he alleges that there is no power in the case concerned to impose a penalty of the amount imposed, he may appeal under sub-paragraph (1) or (2) above against the imposition.

(4) Where a penalty is imposed on a person (“P”) under regulations under section 14C, and P alleges that there is no power in the case concerned to impose a penalty of the amount imposed, P may appeal to a valuation tribunal under this sub-paragraph against the imposition.'

Paragraph 1 of Schedule 3 relates to the imposition of penalties on person, when:

(I) a billing authority has requested a person supply information, or

'(a) he fails to supply the information in accordance with the provision; or

(b) in purported compliance with the provision he knowingly supplies information which is inaccurate in a material particular.' (paragraph 1(1) + (3) of Schedule 3 to the 1992 Act)

Or

(II) the person was required to notify, and the person fails '...he fails without reasonable excuse to notify the authority in accordance with the provision...' (paragraph 1(2) of Schedule 3 to the 1992 Act)

(b) The Magistrates Court is governed by the Magistrates Court Act 1980. As to the Magistrates Court jurisdiction: a '...magistrates' court can only act, it being a creature of statute, within the jurisdiction given to it by Parliament.' Piggin, paragraph 5. Consequently, should the Magistrates' Court justices act outside the Magistrates' Court's jurisdiction, then it must follow '...that their decision will have to be overturned, whatever the more fundamental merits of the underlying position' (paragraph 5).

(3) the County Court has no jurisdiction over such billing authority decisions, under section 16 of the 1984 Act. This was confirmed in Lone v Hounslow LBC [2020] 1 WLR 952 ('Lone'), by Arnold LJ, at paragraph 45. Enforcement of a decision that a taxpayer is entitled to a repayment for an earlier overpaymeny, is a different matter.

Note a taxpayer who has over paid on council tax, cannot bring a common law claim for unjust enrichment against the billing authority, in the county court. In Lone, Arnold LJ said, at paragraph 56 'The only remedy available to a taxpayer who wishes to complain about allegedly overpaid council tax is to appeal to the Valuation Tribunal.' Arnold LJ agreed with the the billing authority's submission on the issue ('In my judgment the Council is correct on this question' - paragraph 56); at paragraph 51, Arnold LJ in Lone agreed that '...the existence of the statutory remedy under section 16(1)(b) of the 1992 Act impliedly excludes any common law claim for unjust enrichment.'

Rationalising this, Arnold LJ said, at paragraph 57:

'...the Valuation Tribunal is a specialist tribunal. Unlike the County Court, it does not charge fees in this kind of case. Its procedures are informal, and well adapted to litigants in person. And the fact that it has no power to make an order for costs protects taxpayers from the risk of an adverse order if they are unsuccessful. The price which taxpayers must pay for these advantages is the much shorter time limits than those which normally apply to claims at common law.'

[2c] A different starting point, would be to start with a summary of the statutory scheme, from Lone v Hounslow LBC [2020] 1 WLR 952 ('Lone'). In Lone, Arnold LJ heard submissions by counsel for the Billing Authority/Council. After setting out those submissions, Arnold LJ said, at paragraph 45:

'In my judgment the [Billing Authority's] analysis of the statutory scheme is correct, and it is implicit that the jurisdiction of the Valuation Tribunal to determine the correct amount of council tax payable under section 16(1)(b) of the 1992 Act is exclusive.'

The submissions Arnold LJ agreed with, in Lone, were recited by Arnold LJ, from paragraphs 42 to 44:

'42 Counsel for the Council submitted that, upon analysis of the statutory scheme, the determination as to whether the taxpayer is entitled to SPD is to be made in the first instance by the billing authority. Initially, the billing authority is required to make reasonable enquiries and then to make an assumption: regulations 14 and 15 of the 1992 Regulations. The taxpayer is under a duty to correct an erroneous assumption: regulation 16 of the 1992 Regulations. Even if the taxpayer is not under a duty by virtue of regulation 16, the taxpayer is plainly at liberty to draw an error to the billing authority's attention. As discussed above, it is then for the billing authority to determine whether any adjustment is required: regulations 24 and 31 of the 1992 Regulations. If the billing authority refuses or neglects to make an adjustment which the taxpayer believes they are entitled to, the taxpayer can appeal to the Valuation Tribunal under section 16(1)(b) of the 1992 Act, subject to compliance with section 16(4), which in essence requires the taxpayer to notify the billing authority of their complaint and give it two months to reconsider the matter, and the time limits in regulation 21 of the 2009 Regulations. If the taxpayer is successful on appeal, the Valuation Tribunal will make an order requiring the billing authority to recalculate the amount of council tax which is due. The Valuation Tribunal may also make an ancillary order for repayment of any sum which has been overpaid. It is only once there has been a determination, either by the billing authority itself under regulations 14 or 31 of the 1992 Regulations or by the Valuation Tribunal on appeal, that a sum should be repaid to the taxpayer, and the billing authority has not paid that sum, that regulation 55 confers jurisdiction on the courts to entertain a claim to recover it.

43 Counsel for the Council acknowledged that there is no provision which expressly states that the jurisdiction of the Valuation Tribunal to determine issues as to the correct amount of council tax payable is exclusive. He submitted, however, that this is implicit in the nature of the Valuation TribunalÕs jurisdiction. The Valuation Tribunal is a specialist tribunal. Appeals to it are subject to certain conditions, such as that imposed by section 16(4) and the time limits contained in regulation 21 of the 2009 Regulations. It has its own procedures, and it has no power to make an order for costs (see regulation 12 of the 2009 Regulations). Furthermore, he submitted, this was reinforced by regulation 57 of the 1992 Regulations, which as noted above prevents issues as to the correct amount of council tax payable being raised by way of defence to applications for liability orders. He submitted that it was implicit in this scheme that the County Court had no jurisdiction to determine such issues, as opposed to enforcing an obligation to make repayment which had already arisen either by virtue of the billing authorityÕs own determination or as a result of a decision of the Valuation Tribunal on appeal. If it were otherwise, the conditions and restrictions attendant upon an appeal to the Valuation Tribunal could be circumvented by Þling a claim with the County Court. Moreover, if there were concurrent jurisdiction, it would give rise to the risk of inconsistent decisions.

In support of this analysis, counsel for the Council relied on the reasoning of Mummery LJ giving the judgment of the Court of Appeal in the admittedly somewhat different context of claims for the payment of housing beneÞt in Haringey London Borough Council v Cotter (1996) 29 HLR 682, 688-689.

"The important point about the procedure for determination and for internal and external review is that, pursuant to the authority of primary legislation, the Regulations provide a detailed, self-contained and exhaustive procedure for enforcing the duties of the appropriate local authority in relation to the determination and payment of housing benefits. Until a determination is made under that procedure, there is no duty on the appropriate authority to make a payment of housing benefit either to the claimant entitled to it or to any other person. If there is any dissatisfaction with a determination which has been made, the appropriate procedure for challenging that determination is that laid down in the 1987 Regulations. It is not possible to discern either in the primary legislation or in the detailed Regulations a legislative intention to confer on a claimant or, a fortiori, any other person, a right to enforce by an ordinary private law action a claim for breach of statutory duty in the determination of entitlement to payment of housing benefit."'

[3a] For completeness, the rest of section 16 of the Local Government Finance Act 1992 is:

'(2) In subsection (1) above the reference to any calculation of an amount includes a reference to any estimate of the amount.

(3) Subsection (1) above shall not apply where the grounds on which the person concerned is aggrieved fall within such category or categories as may be prescribed.

(4) No appeal may be made under subsection (1) above unless-

(a) the aggrieved person serves a written notice under this subsection; and

(b) one of the conditions mentioned in subsection (7) below is fulfilled.

(5) A notice under subsection (4) above must be served on the billing authority concerned.

(6) A notice under subsection (4) above must state the matter by which and the grounds on which the person is aggrieved.

(7) The conditions are that-

(a) the aggrieved person is notified in writing, by the authority on which he served the notice, that the authority believes the grievance is not well founded, but the person is still aggrieved;

(b) the aggrieved person is notified in writing, by the authority on which he served the notice, that steps have been taken to deal with the grievance, but the person is still aggrieved;

(c) the period of two months, beginning with the date of service of the aggrieved person's notice, has ended without his being notified under paragraph (a) or (b) above.

(8) Where a notice under subsection (4) above is served on an authority, the authority shall-

(a) consider the matter to which the notice relates;

(b) include in any notification under subsection (7)(a) above the reasons for the belief concerned;

Subsection 16(3) contains a dis-applying provision - i.e. that subsection (1) shall not apply where the grounds on which the person concerned is aggrieved fall within such category or categories as may be prescribed. As at 7 April 2022, Westlaw does not list any statutory instruments linked to subsection 16(3), and so potentially prescribing any such category or categories. 

However, there is reg.30 in Council Tax (Administration and Enforcement) Regulations 1992/613. Reg.30 is entitled 'Appeals in relation to estimates' and reads:

'Section 16(1) of the Act shall not apply where the ground on which the person concerned is aggrieved is that any assumption as to the future that is required by this Part to be made in the calculation of an amount may prove to be inaccurate.'

[3b] In Lone v Hounslow LBC [2020] 1 WLR 952, Arnold LJ said, at paragraph 31:

'It is clear that section 16(1)(b) confers jurisdiction on the Valuation Tribunal to entertain an appeal by a council taxpayer against the amount of council tax which is assessed by a billing authority.... It is common ground that that includes an appeal on the ground that [single person discount] has wrongly not been allowed: see R (Morris) v Cheshire West and Chester Council [2013] RVR 297, para 8 (Judge Raynor QC sitting as a judge of the Queen's Bench Division).'

[3c] Section 16(2) of the Local Government Finance Act 1992, says:

'In subsection (1) above the reference to any calculation of an amount includes a reference to any estimate of the amount.'

[4] To give a little more detail. Reg.57 of the 1992 Regs is within Part 6 of the 1992 Regs, and so Part 6 of the 1992 Regs is the relevant Part being referred to in the key phrase 'proceedings under this Part'. Part 6 in the 1992 Regs is entitled 'Enforcement' and includes regulations 32 to 57 inclusive. In particular, reg. 34 empowers the billing authority to apply to a Magistrates' Court for an order against the person by whom an amount is payable by virtue of a notice having not been complied with.

[5] The full quote from William Davis J in Wiltshire Council v Piggin [2016] PTSR 845 ('Piggin'), paragraphs 23-25:

'23 I conclude that regulation 57(1) of the 1992 Regulations establishes clearly and unequivocally that the substantive merits of the billing authority's decision in terms of the chargeability of the dwelling, which is not this case, or the liability of the individual, which is this case, those matters are matters for the valuation tribunal. They "may not be raised" in the enforcement proceedings.

24 The defendant is in general terms entirely correct. A magistrates' court is there to dispense justice, but a magistrates' court has jurisdiction in particular cases depending upon the extent of that jurisdiction as provided by statute. In this case, the statute is entirely plain. The substantive issues are to be raised before the tribunal. They may not be raised in the enforcement proceedings.

25 It follows that the justices in this case made an error in law in permitting the defendant to raise the issue to argue it and then to find in his favour. They simply did not have the jurisdiction to do so. That disposes of the substantive part of the appeal.'

It is correct to observe that, strictly speaking, William Davis J in Piggin was dealing with just with the 2nd of the Three Section 16(1) Grievances. His views in respect to the 1st and 3rd of the Three Section 16(1) Grievances, was therefore obiter, though it is hard to see how a difference of approach could be adopted as between the  Three Section 16(1) Grievances.

[6] While:

(1) not followed by Williams Davis J in Wiltshire Council v Piggin [2016] PTSR 845 (which was approved in Okon v London Borough Of Lewisham [2016] EWHC 864 (Ch), Mr Robin Hollington QC sitting as a deputy High Court Judge - who said, at paragraph 28 that Piggin deserves '...to be more widely known...'), and

(2) contrary to the law as found by Stadlen J in R. (on the application of Salmon) v Feltham Magistrates' Court [2008] EWHC 3507 (Admin) and, seemingly, the Court of Appeal in Yang v Official Receiver [2017] EWCA Civ 1465 [2018] 2 W.L.R. 307 (particularly, paragraph 27),

it is sometimes interesting (as a matter of legal history) to see what argument and train of logic, has been disregarded. Accordingly, it is noted here that Andrews J in Shah v Croydon LBC [2013] EWHC 3657 (Admin) approached the matter in the following way (paragraphs 45 to 55):

45. It was ... submitted by [counsel for the billing authority] that by virtue of paragraph 57(1) of the Council Tax (Administration and Enforcement) Regulations 1992, (“the Enforcement Regulations”) the magistrates were not entitled to even go into the question of whether this property was a House in Multiple Occupation, because this was a matter exclusively for the Valuation Tribunal. In addressing the question, the magistrates had exceeded their jurisdiction, and thus he had to concede the third ground of the Appeal (which I have not thus far addressed in this judgment. On that basis [counsel for the billing authority] submitted that the Court need not make any findings on the other grounds of appeal.

46. Paragraph 57, which is under the heading “Miscellaneous Provisions” provides as follows:

i.“1. Any matter which could be the subject of an appeal under section 16 of the Act may not be raised in proceedings under this part.”

47. I therefore have to consider what may be the subject of an appeal under section 16 of the Act. Section 16 provides that:

“(a): An appeal lies to the Valuation Tribunal against a decision of the billing authority that a dwelling is chargeable or that a person is liable to pay council tax in respect of it, or, (b), against any calculation of an amount that is payable by way of council tax.”

48. If the argument of the Respondent were right in terms of the interpretation of that provision of the Enforcement Regulation, it would mean that the scope of enquiry of the magistrates on any occasion when they were asked to make an enforcement order would be exceedingly narrow. They could not embark on any consideration of whether the dwelling was in fact chargeable to council tax, whether the person from whom the tax was demanded was liable, or whether the sum demanded had been properly calculated. If they made a liability order on an entirely false premise, the defendant would have to go to the Valuation Tribunal for redress.

49. The ability of a local authority to apply for a liability order is set out in the Enforcement Regulations at paragraph 34, and that provides:

“If an amount which is fallen due under regulation 23(3) or 23(4) is wholly or partly unpaid, or in a case where a final notice is required under regulation 33 , the amount stated in the final notice is wholly or partly unpaid at the expiry of 7 days beginning with the day on which the notice was issued, the billing authority may, in accordance with paragraph 2, apply to a Magistrates' Court for an order against the person by whom it is payable.”

50. Pausing there, the word “may” means that it is in the discretion of the billing authority to decide whether to make such an application to the Magistrates' Court. The remainder of the paragraph deals with how the application then proceeds before the magistrates.

51. Sub-paragraph 6 provides:

i. “The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.”

52. It follows therefore, as a matter of plain English, that in order to be able to make such an order, the magistrates must be satisfied: (a) that the specific sum which is being claimed has become payable, (b) that it has not been paid, and (c) that the person who is liable to pay it is the defendant. It cannot possibly reach that conclusion without considering the calculation of the amount, or any other matter or factor which goes to the question of whether or not the right person is being asked to pay.

53. The construction that is being placed on paragraph 57 by the Respondent would preclude the magistrates from doing that, so it cannot be the correct construction. One has to construe regulations in a way that make sense. The obvious intention of Parliament in paragraph 57 is to stop the dissatisfied owner, tenant, or other person who is being charged with council tax from initiating a complaint that he should not pay in front of the magistrates, instead of going to the Valuation Tribunal. That is why it says that any matter which could be the subject of an appeal under section 16 may not be raised in proceedings under this part. The person who would raise the matter by way of any such appeal is the person who is dissatisfied, and he would be raising it by way of complaint that he should not pay it: but it is one thing to stop somebody from initiating a complaint before the magistrates, and quite another to stop him from defending himself in circumstances where he says that the local authority has not been able to provide satisfactory evidence that he is the person who is liable.

54. For that reason I do not accept [counsel for the billing authority]'s submission on instructions that the magistrates had no jurisdiction to entertain these matters. On the contrary, they were matters which they were obliged to take into account in determining whether or not [the defendant/(alleged) taxpayer] was in fact liable to pay the money that was being sought by way of a liability order. It was quite proper for them to do that. It was not a case of [the defendant/(alleged) taxpayer] going to the magistrates and saying: “I am not liable.”

55. Therefore, for that reason, I conclude that the magistrates were acting within their jurisdiction when they looked at these matters, and that they were entitled to take these matters into account...' [word in bold was, in the original, in italics]

[7] In R. (on the application of Salmon) v Feltham Magistrates' Court [2008] EWHC 3507 (Admin) ('Salmon'), Mr Salmon, the taxpayer contended before the Magistrates Court, on the billing authority's complaint for a council tax liability order, that he did not owe council tax on a property. On the deployability of this defence, in the Magistrates' Court, Stadlen J said, at paragraphs 42 and 43:

42. ...the decision by the local authority that [the taxpayer] was liable to pay council tax in respect of the [the property], and the decision that that was because it was a house in multiple occupation, was a decision which he had a right under section 16 to appeal against to a valuation tribunal if aggrieved. Indeed, he was notified of the existence of that right in this very case but told me that he did not avail himself of that right in respect of this period, that is to say 2007/2008, prior to the summons or the date of the hearing in front of the Magistrates. If it were indeed the case that it was not for the purposes of 2007/2008 a house in multiple occupation for the purposes of the Act, then he would have had a right to appeal to a valuation tribunal on that ground and on that ground, had it been accepted by the Tribunal, the decision of the defendant that he is liable to pay council tax for 2007/2008 would have been overturned.

43. In those circumstances, I do not have the slightest doubt that that is a matter which could be the subject of an appeal under section 16 and therefore that by virtue of paragraph 57 of the Regulations it is a matter that could not be raised in the proceedings in front of the Magistrates' Court for non-payment of the sums contained in the demand and the arrears notice.

On this as a ground for judicially reviewing the Magistrates' Court decision, Stadlen J in Salmon, he said, at paragraph 43:

'In those circumstances, it seems to me that this ground of appeal is hopelessly misconceived.'

Later, at paragraph 47, Stadlen J in Salmon, after mentioning the Magistrates, said:

'...the question of multiple occupancy was not a matter relevant to what they had to determine because of the section 57 provision. S

[8] The full quote from William Davis J in Wiltshire Council v Piggin [2016] PTSR 845, at paragraph 20, is:

'In the hearing in the magistrates' court, the defendant argued that he was not liable for the outstanding council tax because the property was owned by a trust. Thus, the argument is his argument before the lower court fell clearly within the scope of section 16(1). Therefore, by virtue of regulation 57 this was a matter that could have been determined by way of an appeal to the valuation tribunal and was not in those circumstances a matter that could be raised by way of defence in proceedings in the magistrates' court.'

[9a] In Yang v. The Official Receiver. Manchester City Council [2013] EWHC 3577 (Ch), HHJ Hodge QC said, at paragraphs 21 and 22:

'Regulation 34 of the Council Tax (Administration and Enforcement) Regulations 1992 provides that if an amount which has fallen due by way of council tax is wholly or partly unpaid, the billing authority may apply to a magistrates court for an order against the person by whom it is payable. By regulation 34(6), the court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.

By regulation 57(1) any matter which can be the subject of an appeal under Section 16 of the primary legislation (the Local Government Finance Act 1992) may not be raised in proceedings in the magistrates court for a liability order. Section 16 of the 1992 Act provides that a person may appeal to a valuation tribunal if he is aggrieved by (a) any decision of a billing authority that a dwelling is a chargeable dwelling or that he is liable to pay council tax in respect of such a dwelling; or (b) any calculation made by such an authority of an amount which he is liable to pay to the authority in respect of council tax. I therefore accept Mr Clark's submission that on an application for a liability order by the billing authority, the magistrates cannot look into the questions (1) whether the property is chargeable; or (2) whether the respondent to the summons is liable to pay the council tax; or (3) whether the calculation of the alleged liability is correct. But I would not accept Mr Clark's further submission that that means that a liability order is the equivalent of a default judgment. The primary and secondary legislation governing the liability for, and assessment to, council tax provides for challenges to a decision of a billing authority to be made through the valuation tribunal appeal mechanism. The making of a liability order by the magistrate's court has the effect of converting that liability into a judgment; but it does not mean that it is the equivalent of a default judgment. By regulation 49(1) it is expressly provided that where a liability order has been made, and the debtor against whom it is made is an individual, the amount due shall be deemed to be a debt for the purposes of Section 267 of the Insolvency Act, grounding a creditor's petition.'

In Okon v London Borough Of Lewisham [2016] EWHC 864 (Ch) (18 April 2016), Mr Robin Hollington QC (sitting as a Deputy Judge of the Chancery Division), quoted the above passages (along with others), at paragraph 21, before stating, at paragraph 22:

'I entirely agree with the above summary, and it is in my view entirely consistent with the subsequent Piggin case.'

After Okon was decided in 2016, Yang v. The Official Receiver came before the Court of Appeal, in Yang v Official Receiver [2017] EWCA Civ 1465; [2018] 2 WLR 307, wherein the decision of HHJ Hodge QC at first instance, was affirmed.

[9b] For completeness, paragraph 15 of Okon v London Borough Of Lewisham [2016] EWHC 864 (Ch) reads:

'As a result of this hearing, [counsel for the Applicant] realised that her client, the Applicant, may well be barking up the wrong tree in trying to set aside the Liability Orders, and that she should perhaps instead be making an application to the Valuation Tribunal by way of an appeal against them. The Applicant's appropriate remedy turns upon the true construction of certain important provisions in the 1992 Regulations, namely section 16 of the 1992 Act and reg. 57(1) of the 1992 Regulations. Section 16 provides that a person aggrieved by "any decision of a billing authority that a dwelling is a chargeable dwelling, or that he is liable to pay council tax in respect of such a dwelling" may appeal to the valuation tribunal. And reg. 57(1) provides that any "matter which could be the subject of an appeal under section 16 of the Act may not be raised in proceedings under this part [i.e. Part VI: Enforcement which includes reg. 34 (Application for liability order)]". The courts have reached divergent views as to whether reg. 57(1) is effective to bar the council tax payer from raising the substantive merits before the Magistrates Court in proceedings for the making of liability orders, but it seems to me to be clear (and it is indeed now common ground between the parties, as appears from paragraph 16 of the Respondent's supplemental Skeleton Argument) that it does have this effect, and I propose to follow the recent but relatively unknown decision on this point of Mr Justice William Davis, in Wiltshire Council v. Piggin [2014] EWHC 4386 (Admin). I say this decision is relatively unknown because neither counsel appearing before me had any knowledge of it until [counsel for the Applicant] found it and cited it to me on the second day of submissions before me. The Respondent's original Skeleton Argument had referred me to the Hamdan case and the decision of Mr Justice Henderson in Dias v. Havering [2011] EWHC 172 (Ch), but that was a non-domestic rates case where the Court found at para. 33:

"It is apparent from the provisions cited above that liability orders can be made only after a fairly elaborate procedure has been followed, and the defendant has been given an opportunity to explain why he has not paid. The court may make the order only if it is satisfied that the sum has become payable, and that it has not been paid. If the defendant thinks that the order has been wrongly made, he is in principle entitled to challenge it either by judicial review or by an appeal by case stated. "

On that basis, the position in non-domestic council tax cases on this issue is the precise opposite of what it is in domestic council tax cases such as the present.' [Bold added]

[10] In Yang v Official Receiver [2017] EWCA Civ 1465 [2018] 2 W.L.R. 307, Gloster LJ noted what happened in Yang, when the Valuation Tribunal determined in the defendant/taxpayer's favour on a Three Section 16(1) Defence (in Yang, it was whether or not the property was a HMO, and so, whether or not consequently liability was placed on the defendant). At paragraph 13, Gloster LJ said:

'...on 6 August 2012 the Valuation Tribunal found that the local authority should never have designated the applicant's rental property as a house in multiple occupation. Thus it was ordered that the local authority should remove the applicant from liability from 16 March 2006 to 16 May 2007. Since the applicant had by this time paid the liability orders, the local authority gave her credit for that sum.'

[11a] To appeal, the taxpayer will need to comply with regulation 20A of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (SI 2009/2269), entitled 'Notices of appeal - section 16 appeals'. That reads:

'(1) A section 16 appeal shall be initiated by giving written notice of appeal to the VTE.

(2) A notice of appeal in the case of a section 16 appeal shall include the following particulars-

(a) full name and address of the appellant;

(b) the address of the relevant chargeable dwelling 2 , if different from the address referred to in sub-paragraph (a);

(c) the date on which the written notice under section 16(4)(a) of the 1992 Act was served and the name of the authority on which it was served;

(d) the date, if applicable, on which the appellant was notified by the authority in accordance with section 16(7)(a) or (b) of the 1992 Act;

(e) the grounds on which the appellant is aggrieved;

(f) brief reasons why the appellant considers that the decision or calculation made by the authority was incorrect; and

(g) where the appellant has also made an appeal to the First-tier Tribunal in accordance with the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 3 and the appeal raises common issues of fact with the appeal made under section 16 of the 1992 Act, a statement to that effect.'

Note, if a taxpayer attempts to appeal to the VTE before undertaking section 16(7) pre-issue process, the VTE will refuse to register the VTE 'appeal'. If a taxpayer attempts to appeal to the VTE but does not include in the paperwork, a copy of the billing authority's final decision/final reconsideration notice (with 'right to appeal the decision' notice text - see below), the VTE will ask for a copy and indicate that unless the VTE hear from the taxpayer within 14 days, the VTE will assume that the appeal to the VTE is no longer pursued.  

The VTE will likely say:

'If you have not received a final decision notice yet, you will not be able to make an appeal to us at this time and may I suggest you contact the council to submit your appeal. You can appeal a council tax decision with your council firstly by writing to them and appealing as an aggrieved person under Section 16 of the Local Government Finance Act 1992. You must confirm the decision you are appealing against, the outcome you are looking for and give evidence to support your request. The council will respond to appeals within two months with a final decision or final reconsideration notice. This notice will outline the decision they have reached and specifically give you a right of appeal to come to the Valuation Tribunal Service if you remain unhappy.
 
If you have received the final decision notice, please may I take this opportunity to remind you that you have two months from the date you received it in which you can appeal to us and can you please send me a copy of the decision.'

Separately, the 'right to appeal the decision' notice text, which may be contained in the billing authority final decision / final reconsideration notice, might read something like the following:

'You have the right to Appeal this decision. To do so you must make an application to the Valuation Tribunal Service within 2 months of the date of this letter. If made later than 2 months the Valuation Tribunal Service may ask for the reasons for the late appeal and refuse your application if they deem the reasons unsatisfactory.

The Valuation Tribunal Service is an independent body set up in order to resolve disputes of this kind. They will set a date for a hearing whereby both parties will provide evidence to substantiate their claims. A decision will then be made based on that hearing.'

The letter might also: (1) provided contact details for the VTE and (2) reminded the taxpayer of his/her obligation to pay the amounts of council tax demanded by the billing authority, notwithstanding his appeal, and that (3) he/she will be refunded any overpayment to the extent the appeal was successful.

[11b] In Lone v Hounslow LBC [2020] 1 WLR 952 ('Lone'), Arnold LJ said, at paragraph 32:

'Appeals to the Valuation Tribunal under section 16 are subject to the time limits set out in regulation 21 of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (SI 2009/2269) ("the 2009 Regulations"):

"(1) Paragraphs (2) to (5) are subject to paragraph (6).

"(2) The VTE shall dismiss an appeal by a person in relation to whom the condition mentioned in section 16(7)(a) or (b) of the 1992 Act is fulfilled unless the appeal is initiated within two months of the date of service of the billing authority's notice under that section.

"(3) Where the condition mentioned in section 16(7)(c) of the 1992 Act is fulfilled, the VTE shall dismiss an appeal by an aggrieved person unless the appeal is initiated within four months of the date of service of the person's notice under section 16(4).

"(4) ...

"(5) ...

"(6) The VTE President may authorise an appeal to be entertained where the VTE President is satisfied that the failure of the person aggrieved to initiate the appeal as provided by this regulation has arisen by reason of circumstances beyond that person's control."'

Note, appeals against decisions of the VTE are governed by regulation 43 of the 2009 Regulations. Arnold LJ in Lone said, at paragraph 36:

'An appeal lies to the High Court on a question of law arising out of a decision or order of the Valuation Tribunal on an appeal under section 16 of the 1992 Act: see regulation 43 of the 2009 Regulations.'

In the case of Sabesan v London Borough of Waltham Forest [2018] EWHC 2373 (Admin)('Sabesan'), Edward Murray sitting as a Deputy Judge of the High Court, considered:

(1) the VTE President refusing to authorise an appeal brought under regulation 21(6) of the 2009 Regulations i.e. a (first) appeal to the VTE (lodged 3 months after the 2 month deadline (paragraph 7)) - and a request to the VTE for that decision to be reviewed, being rejected (paragraph 9); and

(2) the taxpayer's (second) appeal, against the VTE President refusal to authorise an out of time (first) appeal to the VTE (the second appeal lodged 5 months after the 4 week deadline expired (paragraph 14))

Under the subheading 'Statutory Background', the Deputy High Court Judge said, at paragraphs 11 and 12:

'[the taxpayer's] appeal to the VTE was made under section 16 of the 1992 Act, but was not initiated within the two-month period specified in regulation 21(2) of the 2009 Regulations, which is applicable to his case. Regulation 21(2) provides that the time limit for an appeal to the VTE under section 16 of the 1992 Act is two months where the condition in section 16(7) (a) of the 1992 Act is satisfied, namely, where the appellant has been notified in writing by the relevant authority ... that his grievance (in this case, his objection to liability for council tax in respect of the Property having been imposed upon him) is not well-founded, but the person remains aggrieved. The notification satisfying this condition was the letter dated 6 September 2016 from [the billing authority' to [the taxpayer], which I have already described.

Under regulation 21(6) of the 2009 Regulations, the President of the VTE may authorise an appeal to be entertained where the President is satisfied that the failure to initiate the appeal within the two-month period "has arisen by reason of circumstances beyond that person's control". Part 2 section PS1 (Extensions of time for making appeals) of the Consolidated Practice Statement for the Valuation Tribunal for England 2017 (as amended), effective 1 July 2017 ("the VTE Practice Direction"), deals with extensions of time for making appeals. Under paragraph 4 of section PS1, an application under regulation 21 will be considered by or on behalf of the President by a "Senior Member" of the VTE, which term includes a Vice-President. In this case, [the taxpayer's] application under regulation 21 was considered by Mr Young, who, as I have already mentioned, is a Vice-President of the VTE. [the taxpayer] requested a review by the President of the VTE of Mr Young's decision under regulation 40 of the 2009 Regulations. His request was rejected...'

The Deputy High Court Judge in Sabesan went on to consider whether the Denton principles (from Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 W.L.R. 3926, [2014] 7 WLUK 202) apply to applications for an extension of time to bring a second appeal. He considered: (1) Jagoo v Bristol City Council [2017] EWHC 926 (Admin), a decision of Holroyde J; and (2) Paul Turner v South Cambridgeshire District Council [2016] EWHC 1017 (Admin), a decision of Warby J, and decided that '...the approach taken by Warby J in the Turner case is the correct one.' (paragraph 24). The Deputy High Court Judge said:

(1) 'Mr Justice Warby was ... considering an application for an extension of time to appeal under regulation 43 of the 2009 Regulations' (paragraph 20) and '...Warby J concluded at [7] that "[t]he Denton criteria are applicable [to such an application], either directly or by analogy"'. (paragraph 20);

(2) at paragraph 21:

'Warby J says the following at [24] on the question of the principles that apply to an application for an extension of time under regulation 43 and the question of relief from sanctions:

"It is clear that Regulation 43 gives the Court a discretion to dismiss an appeal made out of time. The Regulation can be analysed as imposing a time limit which may be extended only if the court in its discretion agrees; or an automatic sanction from which relief must be sought; or as a ground on which the court may in its discretion dismiss an appeal. I do not believe it matters. The general rule is that appeal courts treat an application to extend time for appealing, when brought after the time limit has expired, as equivalent to an application for relief from sanctions from CPR 3.9 ; the court applies what have become known as the Mitchell / Denton principles. Sayers v Clarke Walker (A firm) [2002] EWCA Civ 645, [2002] 1 WLR 3095 ; R (Hysaj) v SSHD [2014] EWCA Civ 1633; [2015] 1 WLR 2472 . It is common ground that in this case I should adopt that approach, and I agree that is appropriate."' [bold added]

(3) at paragraph 25:

'I believe that the correctness of the approach taken by Warby J in Turner as set out at [24] of his judgment in that case is reinforced by the general approach taken by the Court of Appeal to the question of compliance with procedural rules applicable to tribunals in BPP Holdings Ltd v Revenue and Customs Commissioners (Practice Note) [2016] EWCA Civ 121; [2016] 1 WLR 1915 . In relation to an application for extension of time in the context of tribunal proceedings, Lord Justice Ryder in BPP Holdings case referred at [44] to the judgment of Mr Justice Morgan, sitting in the Upper Tribunal Tax and Chancery Chamber in the case of Data Select Limited v HMRC [2012] STC 2195 , where Morgan J applied CPR 3.9 by analogy to the application for extension of time made by HMRC in that case. The Data Select case, of course, pre-dates the Denton and Hysaj cases, but it indicates a consistent approach.' [bold added]

[12] Two points here

[1] The '2009 Regulations' is a reference to 'Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (SI 2009/2269)'. Those 2009 Regulations apply only to England and came into force on 1 October 2009.

For completeness, the full regulation 38 of the 2009 Regulations, entitled 'Orders other than consent orders', reads:

'(1) After dealing with a section 16 appeal the VTE may by order require-

(a) an estimate to be quashed or altered;

(b) a penalty to be quashed;

(c) the decision of a billing authority to be reversed; or

(d) a calculation (other than an estimate) of an amount to be quashed and the amount to be re-calculated.

(2) After dealing with an appeal under regulation 10 of the CT Regulations (disagreement as to proposed alteration) the VTE may, subject to paragraph (3), by order require a LO to alter a list in accordance with any provision made by or under the 1992 Act.

(3) Where it is decided that the valuation band applicable to the dwelling should be higher than-

(a) the valuation band shown in the list at the date of the proposal; and

(b) the valuation band contended for in the proposal,

the VTE must order the LO to alter the list with effect from the day on which the VTE panel made the decision; and the LO must so alter the list, notwithstanding any provision to the contrary in regulation 11 of the CT Regulations (day from which alteration has effect).

(4) After dealing with a NDR appeal, the VTE may, subject to paragraph (6), by order require a VO to alter a list in accordance with any provision made by or under the 1988 Act.

(5) Subject to paragraph (7), where it is decided that a disputed rateable value should be an amount greater than-

(a) the amount shown in the list at the date of the proposal; and

(b) the amount proposed by the appellant,

the VTE must order the VO to alter the list with effect from the day on which the VTE Panel made the decision.

(6) Paragraph (5) does not apply where the order requires the VO to alter the list to show-

(a) property previously rated as a single hereditament becoming liable to be rated in parts, or

(b) property previously liable to be rated in parts becoming liable to be rated as a single hereditament, or

(c) any part of a hereditament becoming part of a different hereditament.

(7) Where it appears that circumstances giving rise to an alteration ordered by the VTE have ceased to exist, the order may require the alteration to be made in respect of such period as appears to the VTE to reflect the duration of those circumstances.

(7A) After dealing with an appeal against imposition of a CT penalty, the VTE may by order require a penalty to be quashed.

(8) After dealing with an appeal against the imposition of a CT penalty or a Schedule 9 penalty, the VTE may order the LO or, as the case may be, the VO whose notice is the subject of the appeal to reduce or remit the penalty.

(8A) After dealing with an appeal under regulation 9C of the NDR Regulations against the imposition of a Part 2 penalty, the VTE may order the VO to remit the penalty in full.

(8B) After dealing with an appeal by a person under regulation 9C of the NDR Regulations against the amount of a Part 2 penalty, the VTE may order the VO to reduce the amount of penalty payable to £200 if the VTE determines that the person was a smaller proposer.

(8C) In this regulation, "Part 2 penalty" has the meaning given in the NDR Regulations.

(9) The billing authority, the LO or the VO (as the case may be) must comply with an order under this regulation within two weeks of the day of its making.

(10) An order under this regulation may require any matter ancillary to its subject matter to be attended to.'

[2] is the Valuation Tribunal's power to order the repayment of an amount that has been overpaid. In Lone v Hounslow LBC [2020] 1 WLR 952, Arnold LJ said, at paragraph 35:

'Although it is slightly curious that regulation 38 of the 2009 Regulations does not explicitly provide that the Valuation Tribunal may make an order for repayment of an amount that has been overpaid, it is clear from paragraph 10A of Part 3 to Schedule 11 to the 1988 Act that it can do so as an "ancillary" matter. The important point for present purposes is that the legislation proceeds upon the basis that the primary remedy which the Valuation Tribunal will make in favour of a taxpayer who successfully contends that they have been overcharged is an order requiring the billing authority to recalculate the amount due. Repayment is only an ancillary remedy. Consistently with this, it appears from a number of decisions which we were shown that the tribunal's usual practice is simply to order recalculation and not to order repayment.'