AGGREGATION of DWELLINGS in MULTIPLE OCCUPATION

May 22nd, 2024 by James Goudie KC in Council Tax and Rates

In R ( HOWARD GARDENS MANCO LTD ) v FORMELA OSBORNE ( LISTING OFFICER ) ( 2024 ) EWHC 1112 ( Admin ) it is held that a council tax listing officer’s decision pursuant to the Local Government Finance Act 1992 to list each en suite bedroom in shared student accommodation flats in Cardiff separately, rather than to treat them as a single dwelling, was lawful. She had followed the Valuation Office Agency policy on aggregation of dwellings in multiple occupation, and had provided reasons justifying a departure from it.

 

LOCAL RETENTION OF NON-DOMESTIC RATES

February 23rd, 2024 by James Goudie KC in Council Tax and Rates

The Non-Domestic Rating ( Designated Areas ) Regulations 2024, S.I. 2024/183, designate areas in England for the purpose of local retention of non-domestic rates pursuant to Section 59A of and para 39(1) of Schedule 7B to the Local Government Finance Act 1988,as inserted by the Local Government Finance Act 2012. The Regulations provide rules for calculating in respect of a billing authority in England all or part of whose area falls within a “ designated area “ the billing authority’s non-domestic rating income in respect of the designated area for a specified year, and the proportion of that income that is to be disregarded for the purposes of specified calculations under Schedule 7B.

 

Council Tax: HMOs

November 8th, 2023 by James Goudie KC in Council Tax and Rates

The Chargeable Dwellings and Liability for Owners, SI 2023/1175,amend 1992 council tax measures (1) so that a house in multiple occupation is always treated as a single dwelling for the purposes of council tax in England and (2) to expand the prescribed class of houses in multiple occupation for which the owner, as opposed to the resident, is responsible for paying the council tax.

 

Rates

November 2nd, 2023 by James Goudie KC in Council Tax and Rates

The Non-Domestic Rates Act 2023 contains provisions on liability and mandatory relief ( Sections 1-3 ). Discretionary relief ( Section 4 ), administration, including frequency with which lists are compiled ( Sections 5-9 0, disclosure of valuation information ( Sections 10-13 ) and valuation and multipliers ( Sections 14/15 ). Schedule 1 ( 69 paras 0mcontains consequential provisions ).

 

Exempt Information

October 31st, 2023 by James Goudie KC in Council Tax and Rates

Section 44 of the Freedom of Information Act 2000 (FoIA) contains an absolute exemption from disclosure. Indeed it prohibits disclosure. The circumstances include when disclosure is “prohibited by or under any enactment”. Sections 17-23 inclusive of the Commissioners for Revenue and Customs Act 2003 (the 2003 Act) relate to Information. Section 17 is concerned with use of information, Section 18 with confidentiality, Section 19 with wrongful disclosure, Section 20 with public interest disclosure, Section 21 with disclosure to prosecuting authority, Section 22 with data protection, and Section 23 with freedom of information. Disclosure is prohibited of revenue and customs information if the disclosure would specify the identity of the person to whom the information relates, or would enable the identity of such a person to be deduced. In STITT v INFORMATION COMMISSIONER (2023) UK FTT 887 (GRC) the FTT held that the Valuation Office Agency was right to have withheld information it held that related to council tax valuation bands. This includes the address, relevant local authority and bands for each property in England and Wales. Disclosure would enable identification of the person to whom the information related.

 

MANDATORY RELIEF FROM BUSINESS RATES

June 8th, 2023 by James Goudie KC in Council Tax and Rates

MERTON LONDON BOROUGH COUNCIL v NUFFIELD HEALTH (2023) UKSC 18 concerns Sections 43(5) and (6)(a) of the LOCAL GOVERNMENT FINANCE ACT 1988 and the interaction between rating law and charity law. Section 43 provides for a mandatory 80% relief from business rates when the ratepayer is a charity (or trustees for a charity) AND the hereditament is “wholly or mainly” used for “charitable purposes”. Nuffield Health is a registered charity. It has a members-only gym in the Council’s area. The decision was that Section 43(6) does NOT require the question whether the premises were used for charitable purposes to be decided by reference to the activities carried on there alone. Rather, the question was whether Nuffield Health was using the Merton Abbey gym for the pursuit of its charitable purposes, viewed in the context of its charitable activities AS A WHOLE. Applying that test Nuffield Health succeeded, EVEN IF persons of modest means were excluded from using the facilities at the Merton Abbey gym by reason of the fees charged there.

The Supreme Court addressed:-
(1) The History of the Applicable Law: paras 12-12 inc;
(2) The Principles of Charity Law relevant to the construction of Section 43(6): paras 22-32 inc;
(3) The Principles of Rating Law relevant to the construction of Section 43(6): paras 33 and 34;
(4) The Principles of Statutory Construction: paras 35-38 inc;
(5) Authorities on Section 43(6), its Predecessors and Equivalents: paras 39-44 inc;
(6) Construing 43(6): paras 45-62 inc; and
(7) The Application of Section 43(6) to the Facts: paras 63-66 inc.

The Supreme Court said in relation to House of Lords authorities on the effect of the formula now used in Section 43(6), GLASGOW CORPORATION v JOHNSTONE and OXFAM v BIRMINGHAM COUNCIL: –

“43. These authorities indicate that in order to qualify for relief under the statutory formula, the hereditament must be wholly or mainly used directly for activities which constitute the carrying out of the charitable purposes of the charity or, by a modest extension, for activities which directly facilitate or are wholly ancillary to the carrying out of those purposes.

44. …in our judgment the activities carried on by Nuffield Health at Merton Abbey gym were directly for the fulfilment of its charitable purpose of promoting health through exercise, within the core sense of the term, without need to rely on the extended sense laid down in the Glasgow Corpn and Oxfam cases…”

“53. …a charity cannot have non-charitable purposes, but can carry on other intra vires incidental activities, such as fund raising, head office management, investment and the provision of staff accommodation…”

The Supreme Court continued:-

“55. The same interpretation also tends to serve the statutory objective of providing a generally simple, predictable and consistent answer to the question whether a charity ratepayer should have relief from business rates, depending upon its sole or main use (or prospective use) of the hereditament, as recommended in the Pritchard Report. At least it does so better than Merton’s interpretation, when there is no issue as to whether the ratepayer is a charity. All that the rating authority has to do is to ascertain what is or are the (necessarily charitable) purposes of the charity, and then decide whether in fact the sole or main use of the hereditament is in furtherance of those purposes, or sufficiently closely connected with their fulfilment. The purpose or purposes of the charity will usually be apparent from its constitution, or (if registered) by a simple online inspection of the register maintained by the Charity Commission. The question whether that purpose or those purposes are fulfilled by the sole or main use of the hereditament is a factual matter, and will not require the rating authority to don the cloak of the Charity Commission or the robe of the Chancery judge to decide whether those purposes are charitable.

56. The position is not so simple where the ratepayer claims to be a charity but is not registered as such. Non-registration does not necessarily mean that the ratepayer is not a charity and in such a case the rating authority would have to conduct a conventional charity law analysis of that question, having regard to the terms of the ratepayer’s written constitution or, if there is no written constitution or the written constitution is not decisive, to the actual facts about the whole of the ratepayer’s activities. That enquiry would of course reveal the ratepayer’s purposes, and they would all have to be charitable if the ratepayer was to be regarded as a charity…”

“58. In the context of Section 43(6) (and its predecessor, Section 11 of the 1961 Act), it is clear that Parliament did not intend that a counter-factual analysis should be adopted. On the contrary, it intended that the relevant analysis should proceed by reference to the general law of charity. The law assesses whether a body’s purposes are charitable by looking at its purposes and activities overall, not on a site-by-site basis. To try to apply Section 43(6) by employing a site-by-site analysis as Merton contends would involve a departure from, not the application of, the approach applied under the general law of charity.”

The case concerned a health charity, but it is clear that the same principles are to be applied to an education charity.

 

Public Benefit Requirement

May 30th, 2022 by James Goudie KC in Council Tax and Rates

The Supreme Court has, on 27 May 2022, given the Council permission to appeal in the important case of Merton LBC v Nuffield Health. The case is on qualifying for mandatory charitable relief from non-domestic rates. The majority of the Court of Appeal, (2021) EWCA Civv826, held that the question of public benefit does not need to be assessed separately for each site on which a charity carries out its charitable activity.

 

Rate Relief

May 28th, 2021 by James Goudie KC in Council Tax and Rates

The issue in Nuffield Health v Merton LBC (2021);EWCA Civ 826 was whether Nuffield Health, a registered charity, was entitled to mandatory relief from non-domestic rates in respect of its occupation of fitness and well-being centres, notwithstanding that membership fees at market rates were payable. The statutory basis of the claimed relief was that (1) it was a charity, as Nuffield Health is, or the trustees of a charity, AND (2) the hereditament was used “wholly or mainly for charitable purposes”, as defined in the Charities Act 2011, that is “for the public benefit”. The Court considers the public benefit test.

 

Liability for Rates

May 14th, 2021 by James Goudie KC in Council Tax and Rates

Hurstwood Properties v Rossendale BC (2021) UKSC 16 relates to the attempted avoidance of liabilities for business rates on unoccupied properties. The Supreme Court concludes (para 49) that the persons entitled to possession of an unoccupied property on whom the liability for rates is imposed does not encompass a company “which has no real or practical ability to exercise its legal right to possession” and “:on which that legal right has been conferred for no purpose other than the avoidance of liability for rates.”

 

Rateable Occupation

April 20th, 2021 by James Goudie KC in Council Tax and Rates

In R (SoS) v Harlow District Council (2021) EWHC 909 (Admin) Kerr J sets out, in Annex A, a checklist of 12 propositions of law as to when premises are occupied for rating purposes, and, in Annex B, a 13 item Protocol for resolution of disputes about occupation of premises.