Liability for Council Tax

Author: Simon Hill
In: Bulletin Published: Monday 21 February 2022

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Liability for Council Tax is imposed by the Local Government Finance Act 1992 ('1992 Act'). In the 1992 Act, the important sections for England and Wales[1] on the imposition of liability are, sections 6 to 9 inclusive, with the key section being section 6, entitled ‘Persons liable to pay council tax’. All 4 sections should be considered, before any conclusion is reached about who is liable for the council tax (as section 6 does not always apply).[2a] There is also [2b] Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613) to consider.

Subsections 6(1) and 6(2) contain what can be termed, a ‘hierarchy of liability’ for council tax. Section 6(1) provides:

‘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.’

Section 6(2) contains the hierarchy of liability itself:

'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) (set out below).

Parliament has therefore stipulated that the person/entity upon whom, for any given day[3], liability for council tax is imposed upon, is any person falling within subsection 6(2)(a). And if nobody falls within subsection 6(2)(a), then it is any person that falls within subsection 6(2)(b). And if nobody falls within subsection 6(2)(b), then it is any person that falls within subsection 6(2)(c). And so on down the list of categories, until, if nobody falls within subsections 6(2)(a), (b), (c), (d) and (e), then it will be the person/entity that falls within subsection 6(2)(f). To be clear, if a person falls within, for instance, subsection 6(2)(b), the analysis stops there. There is no need to go any further down the list - no need to go on to consider whether anyone else falls into a lower category.

Since there will always[4] be an 'owner of the dwelling', there will always be someone who falls within one of these categories. Another way of viewing this, is that, the 'owner of the dwelling' will be liable for the council tax, unless someone else (which may be more than 1 person/entity) falls into one of the categories further up the list. I can also be noted that anyone who falls into a category except section 6(2)(f) 'owner of the dwelling', will be a 'a resident of the dwelling' with some additional attribute (unless that person falls into section 6(2)(e)).

Summarising the above, in Khan v v Sandwell MBC [2017] EWHC 2481 (Admin), Michael Fordham QC sitting as a deputy High Court Judge said, at paragraph 6:

'Section of the 1992 Act sets out a hierarchy in order of priority of those who will be liable to pay council tax in relation to a chargeable dwelling. They apply in sequence. The default position, being the sixth and final category in the hierarchy (s.6(2)(f)) is the "owner" of the dwelling.'

Definitions in Subsections 6(5) and 6(6)

Subsection 6(5) and 6(6) provide as follows:

'In this Part, unless the context otherwise requires

“owner”, in relation to any dwelling, means the person as regards whom the following conditions are fulfilled—

(a) he has a material interest in the whole or any part of the dwelling; and

(b) at least part of the dwelling or, as the case may be, of the part concerned is not subject to a material interest inferior to his interest;

“resident”, in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling.

(6) In this section—

“introductory tenant” means a tenant under an introductory tenancy within the meaning of Chapter I of Part V of the Housing Act 1996;

“material interest” means a freehold interest or a leasehold interest which was granted for a term of six months or more;

“secure tenant” means a tenant under a secure tenancy within the meaning of Part IV of the Housing Act 1985;

“statutory tenant” means a statutory tenant within the meaning of the Rent Act 1977 or the Rent (Agriculture) Act 1976.

There is significant caselaw [5] on: (i) 'sole or main residence in the dwelling', one of the two components of 'resident' in section 6(5)(2); and (ii) 'owner' in section 6(5).

Two or More Persons In Same Subsection 6(2) Category - Jointly and Severally Liable

Where 2 or more persons/entities, fall into the same subsection 6(2) category (so, for instance, 3 people fall into category subsection 6(2)(c)), on any given day, then each of those persons/entities shall be jointly and severally liable for that council tax for that given day (subject to the exeptions in subsection 6(4)). In this regard, subsections 6(3) and (4) provide:

'(3) Where, in relation to any chargeable dwelling and any day, two or more persons fall within the first paragraph of subsection (2) above to apply, they shall each be jointly and severally liable to pay the council tax in respect of the dwelling and that day.

(4) Subsection (3) above shall not apply as respects any day on which one or more of the persons there mentioned fall to be disregarded for the purposes of discount by virtue of paragraph 2 (severely mentally impaired) or 4 (students etc.) of Schedule 1 to this Act and one or more of them do not; and liability to pay the council tax in respect of the dwelling and that day shall be determined as follows—

(a) if only one of those persons does not fall to be so disregarded, he shall be solely liable;

(b) if two or more of those persons do not fall to be so disregarded, they shall each be jointly and severally liable.'

Liability of Spouses

Where a person is liable for council tax on a given day (except under subsection 6(2)(f)), and that person is married/in a civil partnership or living together with a person as if they are married/in a civil partnership, that other person may also be liable for the council tax, jointly and severally. Section 9(1) provides:

(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.

Those who are not married or in a civil partnership with the person liable for the council tax, but who live with together with them as if so married/in a civil partnership, are rendered liable for council tax also, because of the effect of subsection 9(3), which provides:

'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.'

Subsection 9(1) is disapplied in certain circumstances[6]

Exceptional Circumstances - Section 6 and Section 7 Do Not Apply

Section 6 and section 7 do not apply in certain circumstances:

(1) Where the chargeable dwelling consists of a '...pitch occupied by a caravan, or a mooring occupied by a boat.'; reference should be made to section 7, entitled 'Liability in respect of caravans and boats.'[7]

(2) Where the chargeable dwelling falls within 'a chargeable dwelling of a class prescribed for the purposes of this subsection'. Reference should be made to section 8, entitled 'Liability in prescribed cases.'

It is beyond the scope of this bulletin to set out all the prescribed classes. However, a well-known class, prescribed for the purposes of this subsection, is houses in multiple occupation. This is by virtue of the Council Tax (Liability of Owners) Regulations 1992. For a case on HMOs being a 'class prescribed', see R. (on the application of Salmon) v Feltham Magistrates' Court [2008] EWHC 3507 (Admin), paragraph 32 (prescribed under Council Tax (Liability for Owners) Regulations 1992 reg.2 Class C(b))

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.

[1] This article only relates to England and Wales; it does not address the law in Scotland. Readers in Scotland might want to look at section 75 of the Local Government Finance Act 1992

[2a] In Leeds City Council v Broadley [2017] 1 WLR 738, McCombe LJ sought to summarise the law , at paragraph 5:

'The statutory imposition of liability to pay council tax is provided for by section 6 of the 1992 Act (as amended by paragraph 8 of the Schedule to the Housing Act 1996 (Consequential Amendments) Order 1997 (SI 1997/74)) which is in these terms:

"(1) 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.

"(2) 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."

"(5) In this Part, unless the context otherwise requires- 'owner', in relation to any dwelling, means the person as regards whom the following conditions are fulfilled- (a) he has a material interest in the whole or any part of the dwelling; and (b) at least part of the dwelling or, as the case may be, of the part concerned is not subject to a material interest inferior to his interest; 'resident', in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling.

"(6) In this section- . . . 'material interest' means a freehold interest or a leasehold interest which was granted for a term of six months or more; . . ."

In Khan v v Sandwell MBC [2017] EWHC 2481 (Admin), Michael Fordham QC sitting as a deputy High Court Judge, adopted the above summary of the law, at paragraph 5. The deputy High Court Judge then only needed to refer to additional specific provisions, from section 6(6), at paragraph 5: '...s.6(6) also defines the terms "secure tenant" and "statutory tenant", the latter being a statutory tenant within the meaning of the Rent Act 1977 or the Rent Agriculture Act 1976.'

[2b] In Lone v Hounslow London Borough Council [2019] EWCA Civ 2206; [2020] 1 WLR 952, Arnold LJ gave an introduction to council tax liability, with a particular focus on the single person discount ('SPD') of 25% where the property is occupied by only one person. At paragraphs 18 to 21, under the heading 'The legislative framework with respect to council tax', subheading 'Council tax and SPD', Arnold LJ said:

'18 Council tax was introduced with effect from 1 April 1993 by the Local Government Finance Act 1992. It is payable on all domestic dwellings, with certain exceptions. By virtue of section 1 of the 1992 Act, the relevant billing authority...has a statutory duty to levy and collect the tax. The 1992 Act sets out who is liable to pay the tax and some of the machinery for its calculation, but a lot of the detail is fleshed out in regulations made pursuant to powers conferred by the 1992 Act. Section 2 provides that liability to council tax accrues on a daily basis. By virtue of section 11, a chargeable dwelling which is only occupied by a single person on any day attracts SPD of 25%....the taxpayer is entitled to SPD if the criteria specified in section 11 are satisfied: the billing authority has no discretion in the matter.

19 Regulations 14 to 16 in Part IV of the 1992 Regulations provide, so far as relevant:

"14 Ascertainment of entitlement to discount or liability to premium

"Before making any calculation for the purposes of Part V of these Regulations of the chargeable amount in respect of any dwelling in its area, a billing authority shall take reasonable steps to ascertain whether that amount is subject to a discount or premium, and if so, the amount of that discount or premium.

"15 Assumptions as to discount or premium

"(1) Where, having taken such steps as are referred to in regulation 14, a billing authority has no reason to believe that the chargeable amount for the financial year concerned is subject to a discount or premium, it shall assume, in making any calculation of the chargeable amount for the purposes of Part V of these Regulations, that the chargeable amount is not subject to any discount or premium.

"(2) Subject to paragraph (3), where, having taken such steps as are referred to in regulation 14, a billing authority has reason to believe that the chargeable amount for the Þnancial year concerned is subject to a discount or premium of a particular amount, it shall assume, in making any such calculation as is mentioned in paragraph (1) above, that the chargeable amount is subject to a discount or premium of that amount."

"16 Correction of discount or premium assumptions

"(1) Subject to paragraphs (1A) and (2), where a person - (a) has been informed in accordance with any provision of demand notice Regulations of an assumption as to discount or premium made in his case; and (b) at any time before the end of the financial year following the financial year in respect of which the assumption is made has reason to believe that the chargeable amount is not in fact subject to any discount or premium, or is subject to a discount or premium of a smaller or larger amount, he shall, within the period of 21 days beginning on the day on which he first has reason so to believe, notify the authority in writing of his belief."

(3) For the purposes of paragraphs (1) and (2), the fact that any person concerned has wholly or partly discharged his liability to pay the amount shall be ignored."

20 It can be seen that regulation 14 places a duty on the billing authority to take reasonable steps to ascertain whether, among other things, the chargeable amount is subject to SPD. Depending on whether or not it has reason to believe that the amount is subject to SPD, regulation 15 requires the billing authority to make the appropriate assumption when calculating the chargeable amount. Regulation 16 places a duty on the taxpayer to notify the billing authority that it has made an erroneous assumption in certain circumstances.

21 I note in passing that the interpretation of regulation 16(1)(b) is not free from diffculty. In particular, what is the effect of the temporal limitation at the beginning of the sub-paragraph, and does "any discount . . . of a . . . larger amount" include the case where the billing authority has not applied any discount at all? Fortunately, it is not necessary for present purposes to attempt to resolve these diffculties.'

Under subheading 'Demand Notices and adjustments', Arnold LJ said, from paragraph 22:

'22 Regulations 18 to 31 in Part V of the 1992 Regulations make very detailed provision for the service by the billing authority on taxpayers of "demand notices" requiring the payment of council tax and for consequential matters. The key provisions for present purposes are as follows:

"20 Demand notices: payments required

"(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 amount referred to in paragraph (2).

"(2) The amount is- (a) the billing authority's estimate of the chargeable amount, made as respects the relevant year or part, as the case may be, on the assumptions referred to in paragraph (3); . . .

"(3) The assumptions are- (a) that the person will be liable to pay the council tax to which the notice relates on every day after the issue of the notice; . . . (e) if, by virtue of regulation 15(1), the chargeable amount is assumed not to be subject to a discount on the day the notice is issued, that it will not be subject to a discount as regards any day after the issue of the notice; . . ."

"24 Payments: adjustments

"(1) If the chargeable amount proves to be greater than the estimated amount an additional sum equal to the difference between the two shall, on the service by the billing authority on the liable person of a notice stating the chargeable amount, be due from him to the authority on the expiry of such period (being not less than 14 days) after the day of issue of the notice as is specified in it.

"(2) If the chargeable amount proves to be less than the estimated amount the billing authority shall notify the liable person in writing of the chargeable amount; and any overpayment of the chargeable amount-

(a) subject to paragraph (6), shall be repaid if the liable person so requires, or (b) in any other case shall (as the billing authority determines) either be repaid or be credited against any subsequent liability of the liable person to make a payment in respect of any council tax of the authority

"(3) If any assumption by reference to which the estimated amount was calculated is shown to be false before the chargeable amount is capable of Þnal determination for the purposes of paragraphs (1) and (2), the billing authority may, and if so required by the liable person shall, make a calculation of the appropriate amount with a view to adjusting the liable person's liability in respect of the estimated amount and (as appropriate) to- (a) requiring an interim payment from the liable person if the appropriate amount is greater than the estimated amount, or (b) subject to paragraph (6), making an interim repayment to the liable person if the appropriate amount is less than the amount of the estimated amount paid."

"(7) In this regulation- . . . 'the estimated amount' means the amount last estimated under regulation 20(2) for the purposes of a demand notice . . ."

"31 Demand notices: final adjustment

"(1) This regulation applies where- (a) a notice has been issued by a billing authority under this Part requiring a payment or payments to be made by a person in respect of his liability to pay council tax for a financial year or part of a financial year, (b) the payment or payments required to be made are found to be in excess of or less than his liability for the year or the part, and (c) provision for adjusting the amounts required under the notice and (as appropriate) for the making of additional payments or the repaying or crediting of any amount overpaid is not made by any other provision of this Part, of the Act or of any agreement entered into under regulation 21(5).

"(2) The billing authority shall as soon as practicable after the expiry of the year or the part of a year serve a further notice on the person stating the amount of his liability for the year or the part, and adjusting (by reference to that amount) the amounts required to be paid under the notice referred to in paragraph (1)(a).

"(3) If the amount stated in the further notice is greater than the amount required to be paid under the notice referred to in paragraph (1)(a), the amount of the difference for which such other provision as is mentioned in paragraph (1)(c) is not made shall be due from the person to the billing authority on the expiry of such period (being not less than 14 days) after the day of issue of the notice as is specified in it.

"(4) If there has been an overpayment, the amount overpaid for which such other provision as is mentioned in paragraph (1)(c) is not made- (a) shall be repaid if the person so requires, or (b) in any other case shall (as the billing authority determines) either be repaid or be credited against any subsequent liability of the person to make a payment in respect of any council tax of the authority."'

Later, Arnold LJ said, at paragraph 28:

'28 Returning to the 1992 Regulations, regulation 55, which is headed "Repayments", provides as follows: "A sum which has become payable (by way of repayment) under Part V to a person other than a billing authority but which has not been paid shall be recoverable in a court of competent jurisdiction."

[3] Council tax is calculated:

(i) on a day by day basis. Local Government Finance Act 1992, section 2(1) provides:

'Liability to pay council tax shall be determined on a daily basis.'

(ii) For part of a day, Local Government Finance Act 1992, section 2 provides, insofar as material:

'(2) For the purposes of determining for any day…

(c) the person liable to pay council tax in respect of any such dwelling…

It shall be assumed that any state of affairs subsisting at the end of the day had subsisted throughout the day.'

[4] Leaving aside any complex issues that might arise around a freehold title to property being disclaimed by a liquidator or trustee in bankruptcy.

[5] On:

(i) 'sole or main residence in the dwelling', one of the two components of 'resident' in section 6(5)(2); see R (Williams) v Horsham DC [2004] 1 WLR 1137; [2004] EWCA Civ 39

(ii) 'owner' - i.e. who was the 'owner' of the property within the meaning of sub-section 6(2)(f) - see Leeds City Council v Broadley [2016] EWCACiv 1213 ('Broadley'). In Boardley, a landlord contended that he was not liable for council tax for 5 dwellings (which had no 'resident' in them during the period under dispute), because he was not the 'owner' within section 6(2)(f). The landlord contended that the respective tenants were the 'owner' within section 6(2)(f). This turned on whether the landlord or the tenants, fulfilled section 6(5). Before quoting section 6(5), it should be noted that: (1) the tenants had all moved out/gone out of occupation, and so there were no residents in any of them; and (2) crucially, each tenant left the premises without giving notice to the landlord, as required in order to exercise a break clause in the tenancy agreements. 

Section 6(5) defines 'owner' as follows:

'“owner”, in relation to any dwelling, means the person as regards whom the following conditions are fulfilled—

(a) he has a material interest in the whole or any part of the dwelling; and

(b) at least part of the dwelling or, as the case may be, of the part concerned is not subject to a material interest inferior to his interest;'

'Material interest' is, in turn, defined in section 6(6):

'“material interest” means a freehold interest or a leasehold interest which was granted for a term of six months or more;'

In Broadley, the billing authority ran various arguments, designed to establish that each of the tenant's respective lease was for less than 6 months, such that it did not come within the definition of 'material interest'. On all points, the landlord was successful. The Court of Appeal agreed that the 'owner' under section 6(2)(f) had been the tenants. Though the tenants had moved out/gone out of occupation, the leases (referred to as 'agreements') had continued over the disputed period, and were material interests for more than 6 months. While the landlord had a 'material interest' in the dwelling, there was an inferior 'material interest', as defined, held by the tenants, such that each tenant was the 'owner' of each respective dwelling.

To just look at one argument run by the billing authority, the billing authority ran the (unsuccessful) argument that the fixed part of the tenancy, was separate from the periodic part, such that the latter periodic part, was not a material interest because it was (allegedly) a lease for less than 6 months.

McCombe LJ said, at paragraph 19:

'...The terms granted by the agreements here were in terms a single grant for 6 or 12 months certain (as the case may be) and then continuing from month to month. Clearly, they grant "a term of six months or more", constituting a "material interest" within the meaning of section 6(6) of the 1992 Act. It is pursuant to that grant that the tenant holds throughout the tenancy, whether during the fixed term or thereafter, Accordingly, in my judgment, the tribunal and the judge were correct in finding that the tenant's liability continued while those tenancies subsisted as periodic tenancies and even if the tenant had gone out of occupation.'

Another case is Khan v Sandwell MBC [2017] EWHC 2481 (Admin), a decision of Michael Fordham QC sitting as a deputy High Court Judge. 

[6] Subsection 9(2) disapplies subsection 9(1) of the Local Government Finance Act 1992 in certain prescribed circumstances. Subsection 9(2) reads:

'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 ] 2(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.'

[7] Section 7 of the Local Government Finance Act 1992 reads:

'(1) Subsections (2) to (4) below shall have effect in substitution for section 6 above in relation to any chargeable dwelling which consists of a pitch occupied by a caravan, or a mooring occupied by a boat.

(2) Where on any day the owner of the caravan or boat is not, but some other person is, a resident of the dwelling, that other person shall be liable to pay the council tax in respect of the dwelling and that day.

(3) Where on any day subsection (2) above does not apply, the owner of the caravan or boat shall be liable to pay the council tax in respect of the dwelling and that day.

(4) Where on any day two or more persons fall within subsection (2) or (3) above, they shall each be jointly and severally liable to pay the council tax in respect of the dwelling and that day.

(5) Subsection (4) of section 6 above shall apply for the purposes of subsection (4) above as it applies for the purposes of subsection (3) of that section.

(6) In this section “caravan” shall be construed in accordance with Part I of the Caravan Sites and Control of Development Act 1960.

(7) Any reference in this section to the owner of a caravan or boat shall be construed—

(a) in relation to a caravan or boat which is subject to an agreement for hire-purchase or conditional sale, as a reference to the person in possession under the agreement;

(b) in relation to a caravan or boat which is subject to a bill of sale or mortgage, as a reference to the person entitled to the property in it apart from the bill or mortgage.'