Council Tax Dilemma

WALK9763

My son has got a job in manchester for 3 months and we have managed to rent him a flat for the duration (which is very difficult mostly they are for 6 months). As he is a student I put my name on the tenancy agreement (and paid the rent up front) although he is the only person living there.

I have received a Council Tax bill and wrote informing the council that my son has an exemption certificate as he is a student. I explained that my name was on the tenancy agreement for financial reasons but that he was the only person living in the flat. I received an email asking for my son's permanent address at University and I have today received an email saying that I will have to pay the Council Tax.
"As your son's main residence is in ******* he is not entitled to an exemption at this property. Although your son is living in the property the tenancy is in your name and therefore it will remain in your name and you will be liable for the full empty furnished property charge"
Is this correct - as when my son rang the council they told him that he wouldn't have to pay the council tax as he had the exemption certificate .....

agrinnall

Why is the tenancy in your name rather than his? If it was in his name he'd have a better chance of arguing for the exemption, as it is he may be lucky even to get single occupancy discount.

WALK9763

Because he needed to get a flat quickly and he hasn't got any financial history so we would have struggled with the tenancy agreement (even though we paid the rent up front)

Guest101

I think the issue here is that you are or he is claiming this to be a second property.

Guest101

WALK9763 wrote: »

Because he needed to get a flat quickly and he hasn't got any financial history so we would have struggled with the tenancy agreement (even though we paid the rent up front)

Well that's just not true to be fair. He wouldn't have struggled. Agencies don't see financial history

aneary

You are all missing the point the council think that his main residence is the university and therefore the flat is a second home.
Are the halls of residence a yearly residence or just term time and is there a contract with the halls to show it's just term time.
Your son needs to prove that this is his only residence.

00ec25

aneary wrote: »

You are all missing the point the council think that his main residence is the university and therefore the flat is a second home.
Are the halls of residence a yearly residence or just term time and is there a contract with the halls to show it's just term time.
Your son needs to prove that this is his only residence.

I can't find the actual reference in legislation - hopefully CIS will spot this thread in due course and post the relevant bit, but many council websites "categorically" state that for students their main residence for CT purposes is regarded as their term time address. naturally some students may live with their parents, in which case that is both "home" and their term time main residence, but for those who live away, anywhere other than the term time address is not their main residence.

https://www.gosport.gov.uk/sections/your-council/council-services/council-tax/sole-or-main-residence/
Particular Circumstances
....
Students – are always regarded as being mainly resident at their term time address

whether that then means the OP retains their student disregard in respect of their term time address but a liability at the temporary ("second"?) residence they are now occupying, or would instead be liable on their "second home"I have no idea

CIS

I like the technical ones !

It's not a case I've ever dealt with before but I've going to have to back to the legislation to double check as I have several little concerns . Expect a relatively long explanation as more than one issue crops up in my opinion.

EDIT
There will be a long winded post on the first issue and a short one on the second issue !

Craig

CIS

Issue 1

This may well be the longest post I have ever made and I'm not overly persuaded either way under my reading of the legislation !

In principal a property that is not someone's 'sole or main residence' is regarded as unoccupied however the wording of the legislation regarding students can cause problems. Generally speaking a person needs to be 'resident' in a property to affect the council tax charge. 'Resident' is defined as an adult over 18 who has their 'sole or main residence' in the property.

Now - when a person goes to university they are generally regarded as having retained their main residence at the family home (unless the decision has already been made that they don't intend to return to the family home, the as would be the case for any resident leaving a property - ignore this aspect for now). This would mean that the students could never be regarded as resident in the property as they could never have it as their 'sole or main residence' and thus the owner would be billed as an empty property.

To get around this the legislation regarding a Class N exemption does not require a person to be resident, they specifically use the term 'occupied' - this is done to deliberately separate the issue from residency - "an unoccupied dwelling" means[, subject to paragraph (3) below,] a dwelling in which no one lives and "occupied" shall be construed accordingly;"

The Class N exemption states "(1) A dwelling which is either-- (a) occupied by one or more residents all of whom are relevant persons; (b) occupied only by one or more relevant persons as term time accommodation;" (relevant person being a full time student)

A person is regarded as being a student even during the summer holiday so that condition of the Class N is met however they cannot meet criteria 1a) as he is not occupying the property as a resident (see definition above) and he cannot meet criteria 1b) as it is not term time accommodation. Although he is still a student at the property in question he is neither a resident nor is it his term time accommodation. This rules out the Class N exemption in any case.

Now, the interaction between the definition of 'resident' and 'occupied' is an awkward one but 'resident' should be really be looked at as a more specific definition of 'occupied' - (occupied with bells and whistles).

Looking at the property as he does not meet the criteria to be a resident the property has no resident but he could be regarded as occupying the property if you take it that he 'lives' in the property (using the definition of occupied given earlier).

This leaves the question of whether the property is occupied or not - does someone 'live' in it or not ? If no-one lives in the property then a relevant discount would apply for an unoccupied property. If he is regarded as living in the property then he is still a student, that's fine, but as he would be regarded as living in it, it could not be unoccupied and thus an unoccupied discount could not apply.... The problem in that case is that the standard discounts on an occupied property (single person discount etc) require a person to be resident - logically therefore you're stuck with a property with no resident, but an occupier, and no applicable council tax reductions.

It all rests on what you define as 'live' (and thus whether it is 'occupied' or not) - I'm not sure this particular aspect has ever been fully tested at a valuation tribunal or high court case.

The council have clearly take it that he doesn't live in the property so, on a good note, they're not going to argue the full point over occupancy and turn it in to one hell of an argument.

In summary - the council may be right, they may be wrong. Either interpretation could be argued but the way they've done it gives the best chance of any discount as an unoccupied property.

Craig

CIS

Issue 2

As the council have billed you as the leaseholder they have admitted they don't believe he meets the residence criteria and the property has no resident. We must look at section 6 of the LGFA 1992 - this defines who is named on the council tax demand notice and responsible for the payment.

Where no-one is resident then, under section 6, liability falls back on to the council tax definition of the non-resident owner.

This definition of owner (as came up in the relatively recent case of Leeds v Broadley) is a person who holds a material interest - “material interest” means a freehold interest or a leasehold interest which was granted for a term of six months or more;"

If you hold a tenancy for 6 months or more you hold the 'material interest' and thus are regarded as the non-resident owner and liable for any charge. If you don't hold a tenancy of 6 months or more then you don't meet the criteria of the 'material interest', you cannot be held to be the owner and thus are not liable for the council tax charge.

Craig

lincroft1710

WALK9763 wrote: »

My son has got a job in manchester for 3 months

I put my name on the tenancy agreement

although he is the only person living there.

So the son is working, but is regarded as a student. The father is the de iure occupier, but the son is the de facto occupier