Are councils using faulty case law to unfairly assign council tax liability to landlords?

We found ourselves at the Council Tax Valuation Tribunal after a very lengthy and stressful 18 months of fighting with the Royal Borough of Greenwich Council (RBGC) to provide evidence of their claim of our liability for CT, which they never did.

We won our case, but we are very concerned that many councils around the country are using faulty and inferior case law, whether intentionally or not to contrive CT liability, and we want to raise everyone’s attention to this.

The matter started by our difficult ex-tenant who intentionally neglected our flat to attain an adverse Environmental Health report so that she could be re-housed by the council. Her contract was with us and not the council, regardless of the financial support she was receiving from them. The EH report did not come back deeming the flat inhabitable as the tenant repeatedly histrionically professed to 15+ council officers including MPs.

Notwithstanding the tenant did not surrender her lease, return keys or remove any of her belongings out of the flat, including foods that rotted in the fridge-freezer, we were met with a Notice of Liability from the council stating we were liable to CT as the tenant had allegedly vacated the property some 6 weeks prior.

We emailed the tenant but she failed to respond to this particular query, but upon our email also noting the rotting foods and subsequent leaking mess she responded that she entered the property to clean, and topped up the utilities. This was the last time she responded to any of our communications.

We asked the council for evidence of her claim that she was no longer liable for CT, but they said that was a matter of GDPR. This is maladministration as we have legally legitimate interest in this matter as termed in the Data Protection Act 2018.

Over a period of 4 months we then sent no less than 4 notices to the CEO with CC to the CT department asking for evidence and inviting them to the property to show how the tenant had not vacated. Not one notice was responded to.

Notwithstanding our full transparency with RBGC a CT valuation officer then turned up at the property without a legal warrant or even prior notice. Coincidentally we were at the property doing maintenance, I was busy so I asked my builder to tell them to come back later. The council officer did not heed this non-consent and pressured my builder so he let her in under duress. She took photographs and made a report to her management artificially contriving the property was empty, and thus our liability to CT.

Eventually, after numerous emails, letters and a 3000-word complaint of maladministration that was ignored by the complaints department, we were served with a final notice and a summons. We then applied to the CT Valuation Tribunal and the council agreed to rescind the summons pending the Tribunal Decision.

Between then and the Tribunal, the tenant responded for the first time to our communications in 18 months due to an Abandonment Notice we sent her. She responded by saying she did not abandon the property, rather she had to vacate due to the property being inhabitable and therefore had to take Emergency Council Housing. She was then demanding access as she stated she was “lawfully still a tenant” as we had “sent her an arrears schedule”. Oh the irony!

Even upon advising the council of the tenant’s admission of tenancy, the RBGC continued to ignore us.

At the Tribunal the RBGC relied on an irrelevant but famous case to support their view being MACATTRAM VS LONDON BOROUGH OF CAMDEN (LBC) 2/4/2012. We are concerned the council was using this case to spuriously contrive a position of MI in a very ambiguous manner without reference to the specifics of what Material interest (MI) is. Also useful to them that the decision of this case went against the landlord MACATTRAM.

The RBGC maintained that;
1. the tenant was “not resident” to the property as she had “vacated”.
2. and as she was outside of her contractual fixed term and on a rolling/periodic contract, she did not have a Material Interest in the property for CT purposes.

All of this is in fact untrue, and we believe the council could not have not known this as it is their fundamental duty to be knowledgeable of the law in regards to CT.

Material Interest (MI) is, to paraphrase the law, the status of an individual in respect of a property and their legal right to use said property. It is the one with the inferior right or MI that is liable to CT. Therefore a tenant is inferior to a leaseholder who is inferior to a freeholder.

It stands to reason that as a landlord (LH or FH) is not legally holding the right of use of the property whilst a tenant is in contract, that the tenant is liable to CT. What the RBGC was trying to contrive is that a tenant needs to be in a fixed contract to be liable, should they have “vacated”. MACATRRAM alludes to this logic, but there are other aspects of that case that would supercede this false logic, not least the surrender of the lease by the tenant. Hence why it was a contrived effort by RBGC to claim liability upon us.

To be brief, and to coarsely summarise the case law of LEEDS CITY COUNCIL VS BROADLY CASE NO’S: CO/933/2016 & C1/2016/3265 we relied on, the fact that a tenant is in a periodic part of their tenancy is not the sole defining factor of MI and thus CT liability.

It is explained in the LEEDS cases that if the tenancy contract at the forefront had been fettered by a period of at least 6 months for the purposes of notice by either party, that contract will be deemed as being fit for the purposes of Material Interest. The law sees no difference between a “fixed period” or a “periodic period with a fetter on notice”, they are interchangeable and in fact, it is more likely that all contracts are periodic with fetters being due to the payment regularity (monthly).

It may although be a defining factor to have a clause in your contract that states that the contract is for a fixed period that also includes a periodic term thereafter, just so as no boffin tries to argue that the fixed term was a separate contract. Ours simply states “’the Term means the period for which the Property is let under this agreement as specified in clause 1.6 of the Particulars, including any period of holding.”

Thus, as no surrender of the lease was made by the tenant, she remained legally a tenant and therefore the party with the most inferior Material Interest. The law does not care if the tenant lived at the property or vacated or not, it is the lease status that defines MI.

Clearly as legally a landlord can not enter or take possession of a property, if a contract is still in force, they can not use the property and therefore have only a superior MI for the purposes of CT.

What is even worse in our case, is the RBGC CT department in cross-examining could not even provide the information upon the tenant’s notice to them of her vacating the property. Even in the hearing, the RBGC tried to misuse GDPR, to which I bashed the Data Protect Act 2018 back at them. Subsequently, they had to then admit that it was the Housing Department that advised them, I then went in for the kill and pointed out that this was therefore just hearsay!

So in our view, it appears that the CT Department was covering up for the Housing Department who was providing emergency housing without due process. We are over £18,000 in rent arrears as a result. The next step is to claim damages against the RBGC.

Has anyone else experienced this issues with council tax liability and how did you address it?

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