Council Tax: Single Occupancy - Residence vs occupancy

DCodd

CIS wrote: »

I've had this debate before with people before regarding the CAB site. The CAB site simplifies the law and doesn't give a full picture - the person who has written the page either doesn't fully understand council tax legislation or has tried to bring it down to too low a level to cover the law properly,

Under Council Tax legislation a partner or spouse is jointly liable and to be held on the same level on the 'hierarchy of liability' therefore at present , as she is still resident for council tax purposes, she is jointly liable.

The hierarchy goes :
1) resident freeholder
2) resident leaseholder
3) resident statutory/secure tenancy
4) any other contractual licence to occupy & is resident
5) any other resident
6) non resident owner.

I don't understand th act says as follows:

Persons liable to pay council tax
(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 or secure 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.

The owner being the last in the list and the RESIDENT Owner being the first.

CIS

The owner being the last in the list and the RESIDENT Owner being the first.

There's one thing you learn when you do professional courses in Council Tax Law and that is that the legisaltion has to be taken as a whole and not literally on the meaning of one section - the section covering the hierarchy and sole or main residence is Section 6 of the LGFA 1992. Taken by itself this states that the resident owner is liable however when you take a look at section 9 of the LGFA 1992 it confirms that a spouse/partner is jointly liable.

As I've said before this is based on the fact that the wife is resident in the property, which she is for now. If she is found not to be resident then she wont be jointly liable.

DCodd

Agreed but only if the spouse is also resident on that day. this is where Residence comes in. The Gaines -Cooper case was upheld because he had a couple of homes here as well as in the Seychelles and his family lived here, but it also very much relied on the fact the HE WAS BORN HERE, and as such he was looking to change his domicile, Polonious56's wife was not born here so her domicile is Japan and can only be changed via a Japanese or English court and not by a local authority. However the La can rely onthe residence definition of the Finance Act but in this case you have to visit the UK for more 91 days in a year to be resident and this only applies if you were born or are registered as British Citizen.

Either way the LA will find it hard to claim she is resident - BUT a tribunal is not qualified to rule on this point of Law so it would probably have to go to the higher courts.

Another example of the Big boys interpreting a very ambiguous section of a law knowing that we little people can not afford to contest it!!!

I would tell them you and your wife have split and claim the discount that you are in all reality entitled to!!!!

CIS

Either way the LA will find it hard to claim she is resident - BUT a tribunal is not qualified to rule on this point of Law so it would probably have to go to the higher courts.

This is the sort of case the VT can rule on - there may be a disagreement on the ruling which leads to a high court case but the VT will rule first.

DCodd

CIS wrote: »

This is the sort of case the VT can rule on - there may be a disagreement on the ruling which leads to a high court case but the VT will rule first.

I bow to your greater knowledge but I didn't think tribunals could rule if a point of law was raised?

lincroft1710

VTs can rule on a point of law. In CT banding (as opposed to liability) appeals, it is about the only decision that can be appealled to the High Court.

With regard to CAB, although they are well meaning, they are not all knowing, some local CABs would ring me for advice on CT matters.

Polonius56

CIS wrote: »

The length of time is not defined , it is only one of many factors which have been used to define 'sole or main residence'.

Have a look at thi slink from section 8.3 onwards http://www.valuation-tribunals.gov.uk/council-tax-manual/CT%20Manual%20(Sept%2008).pdf

Thank you for this. Some excellent cases, some of which give me little hope but others seem to be more in line with the way I see things ...

8.3.14 - Williams v Horsham District Council has some similarities to my case. Security of tenure and intention to reside at a future date are given weight but High Court held that insufficient regard was given to other factors and the Court of Appeal used the phrase 'a resonable onlooker when looking at the facts... "

My case relies on "other factors" and I am confident any "reasonable onlooker" would see things from my angle.

Also, 8.3.15 Sumeghova v McMahon says "the Court of Appeal held that a place were a person slept was of the uppermost importance in determining whether it was his main residence".

8.3.16A Parry v Derbyshire Dales ... "the High Court rules that he could not have had his sole or main residence there [Derbyshire] while he was resident in Spain.

lincroft1710

For the following reasons I am not certain that these decisions help/are similar circumstances to your case.

8.3.14 Neither husband nor wife resided at appeal property
8.3.15 doesn't appear to refer to a liability case
8.3.16A Who would be "liable person". Again neither husband nor wife resided at appeal property.

Still they may be worth quoting at a Tribunal, but I would suggest you read full transcript of the cases first.

CIS

8.3.16A Parry v Derbyshire Dales ... "the High Court rules that he could not have had his sole or main residence there [Derbyshire] while he was resident in Spain.

IIRC the reason for this case was that Parry was the owner but rented the property out on commercial tenancies and never lived there, the only occupiers were his tenants.

Birmey

I've been reading with interest your postings. Perhaps you can advise me. I live in a house and my husband lives in a flat 80 miles away. He visits me once a week. I rarely visit him. He pays council tax for a single person and up until now so have I. He is registered to vote where he lives and I am registered to vote where I live. Where do we stand on this as the council now say I should pay full tax as this is my husband's main home. How can it be if he lives and works elsewere. We are not formally separated. This is a lifestyle choice. Grateful for your comments.