CO/2100/2017

Neutral Citation Number: [2017] EWHC 2252 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Tuesday, 8th August 2017

Before:

MR PETER MARQUAND
(Sitting as a Deputy High Court Judge)
 
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B E T W E E N :

	MRS DAMIAN DELIA FRANCOIS	Appellant

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	LONDON BOROUGH OF WALTHAM FOREST	Respondent

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A P P E A R A N C E S

MR M MUKULU (Direct Access) appeared on behalf of the Appellant.

MR P STAGG (instructed by London Borough of Waltham Forest) appeared on behalf of the Respondent.
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J U D G M E N T
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THE DEPUTY JUDGE:
1	This is an appeal from the Valuation Tribunal for England’s (VTE) decision dated 18th November 2016 by Mrs Francois against its decision upholding the London Borough of Waltham Forest’s (the Council) refusal to allow a reduction in the council tax payable by her.

2	The appellant initially was acting in person, but for the hearing was represented by direct access counsel, Mr Mukulu and the respondent Local Authority by Mr Stagg.  I am grateful to both of them for their submissions. 

The jurisdiction.
3	Section 16(1)(b) of the Local Government Finance Act 1992 provides that a council tax payer may appeal the calculation of council tax to the VTE if he or she “is aggrieved by” the amount they are obliged to pay, this will include an appeal about the question of any reduction.  

4	The Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009/2269 govern the procedures before the VTE.  Regulation 43 permits an appeal to the High Court on a question of law from a decision or order of the VTE on an appeal under section 16 of the Local Government Finance Act 1992.  The High Court may confirm, vary, set aside, revoke or remit the decision or order and may make any order the VTE could have made (Regulation 43(4))

Background of council tax reduction.
5	The Local Government Finance Act 1992 provides locally determined schemes of council tax support and in particular s.13A(1)(a) of that Act states that any reduction, if there is to be one, should be in accordance with a council tax reduction scheme.  Section 13A(2) requires all Local Authorities in England to have such a scheme.  The scheme must specify the reductions applicable by identifying persons whom the Local Authority considers to be in financial need or classes consisting of persons whom the Local Authority considers to be, in general, in financial need.  

6	The Respondent Council’s scheme for 2015/2016 and 2016/2017 financial years is included within the bundles and is relevant to this case and it is summarised in the skeleton argument of Mr Stagg, as follows:

	“1. By paragraph 30, a person who would otherwise fall within classes of persons entitled to reduction will not be so entitled if they possess capital of more than £6,000.
	2. By paragraph 31(1) the applicant’s capital taken into account is the whole of his capital.
3. However, by paragraph 31(2), the categories of capital set out in schedule 6 are to be disregarded.
4. Schedule 6 paragraph 16 requires the following category of capital to be ignored:

“Where the funds of a trust are derived from a payment made in consequence of any personal injury to the applicant or applicant’s partner, the value of the trust fund and the value of the right to receive any payment under that trust.”

5. Schedule 8 paragraph 4(4) imposes an obligation on the applicant to:

“…furnish such certificates, documents, information and evidence in connection with the application or award, or any question arising out of the application or the award as may reasonably be required by the authority in order to determine that person’s entitlement to, or the continuing entitlement to a reduction under the scheme…”

The Facts
7	Mrs Francois lives with her daughter and since 1996 had had a reduction in her council tax.  In the course of correspondence with Mrs Francois, the Council identified that she had received money from a personal injury award and that it was in a Personal Injury Trust (the Trust).  It became concerned because Mrs Francois did not provide information about that Trust and other details about bank accounts that she had held including relevant statements.

8	On 8th April 2015, the Council wrote to Mrs Francois asking for information about the Trust including the amount of the award and details of the Trust.  On 11th May 2015, Mrs Francois wrote to the Council requesting more time to deal with this request.  The Council agreed but asked in addition for further details of all her bank accounts and itemised statements for a certain time period.

9	On 11th June 2015, Mrs Francois wrote to the Council and in relation to the Trust, said that the Council could write to the solicitors, Wrigleys Solicitors LLP, who had set up the Trust and held it.  She referred to a letter dated 22 March 2010 from Wrigleys to the Council and attached a copy of the letter.

10	The letter from Wrigleys confirms that Mrs Francois received a payment as a result of a compensation claim for personal injury and it confirms that it has been placed in a personal injury trust.  The writer goes on to refer to income support benefit and states:

"Our client's benefits should not be affected in any way by this payment because a Personal Injury Trust is in place.  If you require any further information, please do not hesitate to contact us using the reference and contact details above."

11	On 18th June 2015, the Council wrote to Mrs Francois saying that she was not entitled to a reduction in council tax as she had not provided the necessary information.

12	On 15th and 20th July 2015, Mrs Francois provided the bank statements for one account and again referred to the letter from Wrigleys dated 22 March 2010 but did not provide the information requested about the details of the Trust.

13	On 10th August 2015, the Council wrote to Mrs Francois requesting information in order to be in a position to revise its decision.  The information requested was follows: 

“1)  Itemised bank statements for all accounts held including Santander account ending in 500 for the period 1 April 2013 to 31 March 2015.  
2)  Please provide details of your compensation payment received in 2010. This should include;
•	details of the award,
•	details of where that money has been disbursed
•	If the money has been spent please provide;
o	a receipt showing what the money was spent on.
3) I have also noticed several cheque payments being made into your account
•	26th February 2015, £500;
•	20th March 2015, £150.
Please provide evidence of where the two cheque payments are from….
Please provide this information by 10th September 2015 failure to do so will result in the authority deciding that you hold capital of £6,000 and an additional income which has not been disclosed to the authority."

17	On 9th September 2015, Mrs Francois wrote to the Council again stating that the letter dated 22 March 2010 established the legal basis for disregarding the sums in that Trust for the purposes of council tax reduction. 

18	On 16th September 2015, and 21st October 2015, the Council upheld its decision not to apply a reduction in the council tax and it said it had no realistic option but to conclude that she had capital over £6,000.  

19	On 19th November 2015, Mrs Francois appealed to the VTE.  In the course of that appeal, the VTE gave directions on the Council's application in an order dated 27th September 2016, which is in the bundle at page B(1).  I am not going to quote from that order directly as I do not think it is necessary.  However, the order obliged Mrs Francois to provide details of her bank accounts and a statement providing details of all transactions relating to the Trust.

20	Mrs Francois did not comply with that order and in fact she made her own application which is again at the bundle at C(2) for a stay, amongst other matters, but the Tribunal did not agree to grant a stay and that order is at page B(3) of the bundle.

21	The final determination by the VTE was dealt with on the papers.  The decision was given on 18th November 2016, as were the reasons and the appeal by Mrs Francois was dismissed.  This appears at A(14) to (16) of the bundle.  The key paragraphs to which I have been referred are paras.10 and 11, which are the decisions and reasons of the Tribunal:

"10: The panel was satisfied that para.4(4) of schedule 8 to the London Borough of Waltham Forest Council Tax Reduction Scheme 2015 (Working Age People) places the onus on the appellant to provide the information and evidence requested by the billing authority [i.e. the Council] to establish the capital to be used in the assessment of entitlement to a council tax reduction.  Further, the Tribunal was also satisfied that the evidence and information was nonetheless required following the Directions of the Tribunal [see paragraph 19 and 20 above]… 
	11. In the absence of that information and evidence, the Panel is satisfied the billing authority has correctly decided that the appellant was not entitled to a council tax reduction from 1st April 2015."
	
The issues in this appeal
22	First, there was an apparent issue about the time within which the appeal was brought but the Council takes no issue with this point and having considered the papers it seems to me that Mrs Francois did bring this appeal in time so I need say no more about it.

23	Secondly, the substantive issue is whether there is an error of law in the VTE’s decision.  Orally, Mr Mukulu focused predominantly on the question of the Trust.  However, there are detailed statements of grounds in the bundle at page A9.
  
24	The grounds can be summarised as, first, no weight or insufficient weight was given to the letter from Wrigleys dated 22 March 2010.  The claimant's submissions are that Mrs Francois invited the Council to contact the solicitors for further information but they did not do so, she was not being obstructive or difficult.  Secondly, the VTE failed to give reasons for the Council's failure to request information from Wrigleys.  Thirdly, the VTE failed to give reasons why the Trust satisfied the regulations and should be disregarded.  Fourthly, it is said as a consequence of the previous grounds there has been a breach of Article 1 Protocol 1 of the European Convention on Human Rights (ECHR).

25	The Council's submissions are that it was up to Mrs Francois to satisfy the Council that the VTE had erred in law and the Council relies upon its council tax reduction scheme and the case of Kerr in particular.

The law
26	Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23 is a House of Lords decision.  In this case, the claimant made a claim under benefits legislation for the funeral expenses in relation to the death of his brother, with whom he had not been in contact for over 20 years.  In the courts below the decisions concerned which party had the burden of proof.  All of their Lordships agreed with Baroness Hale, who at paragraph 62 stated:
	"What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met.  The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.
	63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998: "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself."
	
27	I was also referred to Jeleniewicz v Secretary of State for Work and Pensions [2008] EWCA Civ 1163.  This was an appeal form the Social Security Commissioner and a Polish national’s entitlement to income support.   Mummery LJ at paragraph 30 states: 

"First, as to the process adopted by the Commissioner on the hearing of the appeal, there was no error of law as Baroness Hale observed in Kerr [at paragraph 62, quoted supra] the claimant is the person, who generally speaking, can and must supply the information needed to determine whether the conditions of entitlement had been met…In my judgment, this is true in determining whether the conditions of entitlement have ceased to  be satisfied as it is when determining whether the conditions have been satisfied.”

Both those cases relate to benefits and are applicable to this case in my view.

28	These cases establish that when considering an entitlement to a benefit, which would include a reduction in council tax, the principle is that the person who has knowledge or access to information that supports their claim should provide it.

Discussion
29	The VTE at paragraph 10 identified that para.4(4) of the schedule 8 for the London Borough of Waltham Forest Council Tax Reduction Scheme placed the onus on the applicant to provide the information that was being requested.  It is important to remember in this case that the information requested was not just in relation to the Trust, but also to other information including bank statements, which I have referred to above.  

30	The letter dated 22 March 2010 from Wrigleys does establish that there was a Personal Injury Trust but, following Kerr the VTE concluded that was not enough in itself and the onus was on Mrs Francois to provide the information requested by the Local Authority.  In my judgment this is entirely consistent with the cases of Kerr and Jeleniewicz.  Mrs Francois was seeking a benefit in the form of a reduction in council tax.  The information requested was in her knowledge and control and as such it was for her to provide it.  In the absence of that information, the VTE concluded that the Council was entitled to conclude that she had capital of more than £6,000 and therefore not entitled to the reduction she was seeking.  I do not see any merit in the grounds advanced by Mrs Francois in this appeal, there was no obligation on the VTE to give the letter dated 22 March 2010 any more weight that it was given.  The VTE’s reasons are clear and in accordance with Kerr.

31	The claimant also indicated that there was a breach of Article 1 of the first protocol under the European Convention of Human Rights because of the approach of the Tribunal but I do not agree. 
 
32	The Article is not an absolute right in any event and what was done here was in accordance with the statutory scheme. I do not see there is any breach of the Article and no issue of discrimination under Article 14 has been raised here.

33	Finally, prior to the hearing when the claimant was acting in person, there was an indication that a supplementary ground might be raised.  In the event it was not pursued by Mr Mukulu orally, but Mr Stagg addressed it and for completeness I will deal with it.

34	The issue arose out of the claimant's partially successful appeal against the Council in relation to housing benefit before the Upper Tribunal (Administrative Appeals Chamber).  In those circumstances, where a claimant is in receipt of income support then all of their capital comes to be disregarded for the purposes of assessing entitlement to housing benefit.  Mrs Francois’s position was that the same principle applied therefore to any reduction in council tax.  The question of housing benefit entitlement is under a completely separate set of regulations and in my judgment has no bearing whatsoever on this case.

For the reasons I have given above, this appeal is dismissed.

Summary

35	Mrs Francois appealed the decision of the VTE upholding the Council’s decision refusing a reduction in council tax on the basis that she had not provided information confirming that she did not have capital in excess of £6,000, the relevant threshold in the Council’s council tax reduction scheme.  There was no error of law in the VTE’s decision and this appeal is therefore dismissed.

MR STAGG:  I am very grateful to your Lordship for your Lordship's judgment.  We do apply for our costs of the appeal.  My Lord, a statement of costs was supplied to my learned friend and there is in fact a parallel set of costs which is being assessed in the appellant's favour at the moment relating to unrelated judicial review proceedings.  
I am happy for your Lordship to assess costs summarily which would be the normal order but if my learned friend feels in any way disadvantaged then it might be appropriate to send off for assessment and the two matters can be dealt with together as a set off that being appropriate.   So I will leave that as an option for your Lordship if that sounds appropriate but certainly we apply for our costs being given.
THE DEPUTY JUDGE:  Thank you.
MR MUKULU:  In terms of the -- what I call the parallel costs, I have just been told by my client that the respondents have not responded to her request for costs but as relates to this that they certainly can be summarily assessed.  I would prefer for it to be summarily assessed today.
THE DEPUTY JUDGE:  Are you prepared for me to do a summary assessment?    
MR MUKULU:     Yes.
THE DEPUTY JUDGE:  Well, I will do that but I do not have the details.
(A short pause)
MR STAGG:  Could I hand up a copy of the schedule?  I am sorry that that did not reach your Lordship.  (Handed) 
THE DEPUTY JUDGE:  Thank you. 
MR STAGG:  My Lord, you will see that the solicitor's costs are fairly modest.  I have dealt with, I think, the bulk of the work in terms of preparing for the appeal.  I have prepared the supplementary bundles and so on for that.  
You will see the total solicitor's costs come to £1,350 and then the remainder is my fees.  That is for the two skeletons that I have done.  As I say, the preparation of the authorities' bundle, the supplementary papers that were not in the original bundle.
THE DEPUTY JUDGE:  Do you have an hourly rate? 
MR STAGG:  My standard commercial rate is £250 an hour.  So that amounts to something of the order, I suppose, of 13 to 15 hours' work overall and certainly to get this matter up to speed and then prepare all the documentation, I have certainly done that work.
THE DEPUTY JUDGE:  Why was that not done by your solicitor?
MR STAGG:  Effectively, they came to me, because I have a long standing specialism in Benefits Law and it was really, as I say, left to me.  It just seemed more efficient that I should deal with all those matters because I was more quickly able to determine for the court.
We came to this, I think, relatively late in the day and matters had to be dealt with in a very short time span.  We did not have a skeleton argument from the appellant at that stage.
THE DEPUTY JUDGE:  Yes.
MR STAGG:  As I think there should have been but so it was necessary to work out what the arguments were and then deal with them.
THE DEPUTY JUDGE:  Did you give written advice? 
MR STAGG:  I have not given written advice, no.
THE DEPUTY JUDGE:  And a conference? 
MR STAGG:  I did not have a conference.  I have obviously had quite a bit of email correspondence with the solicitor instructing me but I did not have a face to face conference and I did not provide written advice.
THE DEPUTY JUDGE:  Yes, thank you.
(A Short Pause)
MR MUKULU:  Yes, thank you, my Lord.  Very good.
Your Honour[sic], it seems to me that whilst I certainly respect my learned friend's expertise in this area no criticism can be levelled at him for accepting instructions and the ambit and the body of work that he was being paid to do.  What I would say on behalf of my client, that the Local Authority certainly would have had these grounds and the relevant documents, certainly from at least June and we are in August.  This is, yes, a specialist area but it is very much within the terrain of the Local Authority and so to effectively hand over the preparation to counsel without perhaps taking a sensible decision to have a conference and get some guidance, I think it is   
THE DEPUTY JUDGE:  That might put the fees up.
MR MUKULU:  Well, it might have put the fees up, might have but the preparation would have been guided by counsel's advice and reduced the amount of time that Mr Stagg himself would have had to expend.  
I suspect his rates affect the overall time if they had the benefit of the, of what is obvious expertise.  So I say that this so called work, the body of work would certainly be less if they had decided, they had taken the decision to prepare for this in a different manner.  
So, I ask you to bear that submission in mind when you come to decide whether or not the portion of spending should be awarded.
THE DEPUTY JUDGE:  Do you want to say anything?
MR STAGG:  I have nothing to say.
MR MUKULU:  My Lord, the only other thing I would query, certainly on the solicitor's costs, it says "personal attendance fee", personal attendance on whom?  It is £120.
MR STAGG:  Just responding to that, I believe it is personal attendance on myself because there has certainly been a good deal of liaison between myself and my solicitor in relation to preparation.
MR MUKULU:  Thank you.
MR STAGG:  Thank you.
 (A short pause)
THE DEPUTY JUDGE:  Is there no VAT on the solicitor's fees? 
MR STAGG:  No, they are the internal solicitors. 
THE DEPUTY JUDGE:  There is no VAT.
MR STAGG:  So there will not be VAT charged by them, it is only on my fees VAT is claimed. 
 (A short pause)
THE DEPUTY JUDGE:  Summary assessment is obviously broad brush.  It is not like a detailed assessment. Broadly speaking, I think that the solicitor's hourly rates are reasonable.  However, I do think that there has been an over reliance on counsel on the face of it and accordingly what I propose is to summarily assess these costs at £4,335, inclusive of VAT.  Is there anything else?
MR MUKULU:  Not from my side.
MR STAGG:  Not from me, my Lord.