Council Tax liability appeal and I have no copy of the AST!

Hi,

Am a bit confused as to why you are being chased for non payment if the Tenant was on housing benefit then they would also have had there council tax paid.The council would have a record of seeing the Tenancy agreement and of granting housing benefit and council Tax.

Adnan by the looks if things you have a reasonable amount of evidence to present to the Tribunal - but obviously the tenancy agreement is the primary document to prove the tenants liability. Other documentation that could assist is the Tenancy Deposit Paperwork which should be signed and dated by the tenant and yourself, and the inventory. The tenancy deposit paperwork will have the date the tenancy started. You may also have bank statements showing payments and / or a record of rent received from the tenant. Remember a tenancy agreement does not have to be in writing. It's best that it is - but sometimes there is contract formed verbally. Check the Rent Tribunals processes and stated cases and see if there are any cases similar to yours you can quote to support your case. Think about the audit trail for a property and the documentation it produces at each stage and put it together into a " bundle" for the Tribunal with each document numbered with an index on the front.

[quote]I also have evidence of a bailiff letter, a summons for non payment of council tax all of which are in the tenants name. I also have a copy of the email I sent to the council notifying them of the tenants.[/quote]

If these documents are in the tenants name at what point did the local authority update their records and send you a revised demand notice ? There must be a reason why they changed their records.

One problem you have is that the local authority can pursue action against an account in your name whilst an appeal is ongoing - it comes under Section 16 of the local government finance act 1992 as being within the remit of a tribunal so a dispute against liability cannot be considered by the magistrate court if they pursue enforcement action against you (Reg 57 of the The Council Tax (Administration and Enforcement) Regulations 1992).

Changes from landlord to tenant and vice versa aren't unusual - I processed enough of these myself - but there was always a reason behind the change.

A Property118 member (who wishes to remain anonymous) has asked me to share the following correspondence (in which the landlord won his case) with Nottingham Council on the basis it may help ...

Good morning [NAME REMOVED],

Thank you for your email dated 29.8.16, apologies for the delay in my reply.

This email is regarding your property at [ADDRESS REMOVED] – account [NUMBERS REMOVED]

I apologise for the time that this matter has taken. The liability that was created in your name between the dates of 15th February 2016 and 21st February 2016 at that time was the correct procedure, however following on from the Leeds City Council case that you quoted, this has changed how we now approach tenancy end dates.

I am able to issue a refund to you for the dates in question of £41.78, however as this was paid over the Internet with a credit card, I would need your bank details in order to process this.

I have today issued a refund letter to the address for [NAME REMOVED], as this is the only address we have for you. If you could return this in the pre-paid envelope we will be able to issue a refund.

If you wish to discuss this matter with a Council Tax officer, please contact the Council Tax office on 0115 7181777 (open 8:30 to 17:00 Monday, Tuesday, Wednesday and Friday and 9:30 to 17:00 on Thursday)

Kind regards

Sarah Fairbrother-Adams
Council Tax Officer
Nottingham Revenues and Benefits Ltd

Email: counciltax@nottinghamcity.gov.uk
Visit Our Website: http://www.nottinghamcity.gov.uk
Council Tax Telephone: 0115 7181777
Benefits Telephone: 0115 7184444

This is the letter the landlord wrote to the Council ...

Dear Nottingham Council Tax,

I'm still waiting for you to ring me about this.

You did take me to court on this & I paid quickly to avoid further costs, as I was going on holiday & was never finding a human being to talk to on your phone lines when I was ringing.

Tenancy enclosed showing periodic tenancy, & notes below if you can check please.

If you agree, please refund me my £41.78 asap & pay me compensation for my time & trouble.

If you don't agree, please ring me to explain, & do I have appeal rights?

This article applies for properties where the tenant is liable for council tax during the tenancy - so not an HMO.

There has been a lot of confusion about council tax liability where a tenant has left a property, but the tenancy has not been ended by notice (by either the landlord or the tenant), in particular, where the fixed term of the tenancy has passed. Councils appear to have been demanding the council tax from the landlord after the date the tenant notifies the council they have vacated, as a matter of course.

There have been a few Valaution Tribunal decisions, but now the High Court has brought some clarity. You can read about the decision here on Nearly Legal.

The liability for council tax after the tenant has vacated is as follows:

During the fixed term of a tenancy (as long as for 6 months or more) - the tenant is liable until the end of the term (unless earlier termination was agreed by the landlord).

After a six month (or longer) fixed term, where the tenancy becomes a statutory periodic tenancy automatically - the landlord will be liable for council tax after the date the tenant vacates the property. This is because the statutory periodic tenancy is classed as a new tenancy and it is not granted for a period of longer than 6 months - instead being from month to month. So the tenant is only liable for council tax when actually living at the property.

Where a tenancy agreement provides for a fixed term of at least 6 months and then the tenancy continuing on a periodic basis - the tenant will be liable for the council tax until the date the tenancy is ended by notice (landlord or tenant's notice) even after the tenant has vacated. This is because the 'contractual periodic tenancy' is a continuation of the original tenancy, not a new tenancy, and so is a tenancy of more than 6 months.

That issue with contractual periodic tenancies following a fixed term is one that councils have often disputed, but Leeds council appealed the issue to the High Court and lost, so it is now settled. The judgment is Leeds City Council v Broadley [2016] EWHC 1839 (Admin). Any council trying to demand council tax from the landlord in these circumstances should be referred to that judgement.

Reply to the comment left by "Mark Alexander" at "16/09/2016 - 12:50":

I don't why the local authority in that letter are saying the law changed though , it didn't (The relevant legislation is the same now as it was in 1992). The High Court just agreed with how the Valuation Tribunal said the existing legislation should be applied.

The Broadley case correctly reinforced what local authorities should have been doing anyway ( I know they weren't always though - I had this discussion many times when I worked in a local authority). In my experience too many local authorities are making things up as they go - some of the 'technical advisors' I worked with were far from competent.

Using Broadley still doesn't explain by itself though why the liability has been changed from the tenant to the landlord unless the tenant has argues he was no longer liable upon on vacation and the council have amended retrospectively or the council have are double checking and amending accounts.

Reply to the comment left by "LGFA92 " at "16/09/2016 - 13:25":

EDIT:
To clarify my earlier post - the local authority are saying their procedure changed rather than specifically the law ( I misread the letter) - however their procedure should already have been compliment with legislation, which is what hasn't changed. At least though they should now be working correctly.

I can't comment on the matter in point, but when an AST (or indeed any other type of rental agreement) is being signed, it's accepted and good practice for both landlord and tenant (or licencee) to sign 2 copies, and each party then keeps a signed copy.

I personally scan my signed copy and upload it to an established and reliable cloud document storage database, such as Google Drive, as paper copies and computer hard drives can be lost or destroyed. Google Drive also has the advantage of a powerful search engine.

There are many instances when a landlord might need to produce a copy of the original agreement, enforcement of an eviction notice, for example.

Reply to the comment left by "Mandy Thomson" at "16/09/2016 - 14:09":

It's unfortunate that it happens all too often that copies aren't available but I have noticed that the majority of the landlords I've dealt with have now cottoned on and are keeping an electronic copy.

Reply to the comment left by "Mandy Thomson" at "16/09/2016 - 14:09":

I would imagine that the tenant lost their copy as so often happens. I'd never let my copy out of my hands though. They could have a scanned copy emailed which has always sufficed for me.

Presumably you can also demonstrate that you protected the deposit for the property for the period in question.