Correspondence Address:

VTS, 2nd Floor

120 Leman Street
London
E1 8EU

Tel: 0300 123 2035

Sandra Upton E-mail: vtwhitechapel@valuationtribunal.gov.uk
Nemesis
06 October 2020
Queensdown Road
Kingsdown
Deal
CT14 8EF

Notice of Decision

The appeal shown below was heard by the Tribunal on:

Hearing Date: Tuesday 22 September 2020

Venue: Remote Hearing 1

Appeal Number: M0853419

Appeal Type: CT Invalidity

Appellant’s Name: John William Kerbey & Mrs Barbara Kerbey

Appeal Property: 5 Nelson Park Road

St Margarets-At-Cliffe
Dover
CT15 6HL

Decision of Tribunal: Allowed

Reasons for Decision: See attached document

Please read the enclosed leaflet as this gives you important information.

Registrar

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 THE VALUATION TRIBUNAL FOR ENGLAND

Council tax invalidity / notice of invalidity served outside the statutory 28 days / legal point on
whether that is permissible / decision that an invalidity notice cannot be served outside the
timeframe/ invalidity notice found to be a nullity.

Re: 5 Nelson Park Road, St Margarets-At-Cliffe, Dover, Kent, CT15 6HL

APPEAL NUMBER: M0853419

BETWEEN: Mr J & Mrs B Kerbey Appellant

and

Mr A Corkish Respondent

(Listing Officer)

BEFORE: Mr G Garland (President of the Tribunal)

REGISTRAR & CHIEF CLERK: Mr J Bestow

REMOTE HEARING: 22 September 2020

Mrs Upton, taxpayer’s representative, was present. Mr Kerbey had asked to observe proceedings
but was unable to connect to the hearing. An alternative phone number was provided which he
didn’t use. Mr Kerbey was adequately represented by Mrs Upton, a retired solicitor, on this legal
point and Mr Kerbey was not due to give any evidence.

Mrs T Nicholson, representing the Listing Officer, was also present

Summary of decision

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 1. The appeal is allowed in so much that the invalidity notice was deemed to be a nullity and
the Listing Officer must now proceed with the proposal to decide whether it is successful
either in full or part; and either alter the Valuation List or issue a decision notice as required.

Introduction

2. I am required to make sure arrangements are in place and make such statements and
Directions so as to ensure that business before the Tribunal is conducted in accordance with
The Local Government Finance Act 1988, Schedule 11, Part 1, paragraph A17(1) and The
Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations
2009. By virtue of Part 2 regulation (5)( arrangement for appeals) and regulation (6)(3)(g)
(appeal management powers) the VTE may determine the form of any hearing.

3. Therefore, in pursuance of Regulation (6)(3)(g) the VTE has incorporated “remote hearings”
as part of that definition and for the time being as the default option until it is safe to return to
normal working. The Tribunal’s Consolidated Practice Statement have been amended by
me to reflect this.

4. I was pleased that both parties confirmed to me at the end of the day’s hearings (there were
five cases with the same representatives) that they were satisfied with the hearings being
conducted remotely. I am also grateful for the way both parties contributed to the hearing in
a succinct and professional way given that remote hearings are a challenge for us all.

5. This is not intended to be an exhaustive record of the proceedings, but the parties can be
assured that all of the evidence presented was fully considered by me before coming to a
decision. Consequently, the absence of a reference to any statement, or evidence, should
not be construed as it having been overlooked.

Background

6. Mr & Mrs Kerbey purchased a new three-bedroom bungalow in August 2015 and on 30
September 2015 submitted a proposal. The Listing Officer issued a decision notice on 25
November 2015. The appellant’s now say in reaching that decision the Listing Officer failed
to consider all the evidence and whilst an appeal wasn’t made at the time, a further proposal
was submitted on 12 April 2019. A letter within the hearing bundle headed complaint and

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 dated 22 March 2019 appeared to be the document treated as a proposal and was based
upon the entry in August 2015 being inaccurate.

7. The Listing Officer issued an invalidity notice on 23 May 2019 stating that the proposal was
invalid as it was incomplete.

8. An appeal against that notice was made 29 May 2019. In her submission to the Tribunal
Mrs Upton disputed that the Listing Officer could serve an invalidity notice outside the
statutory 28 days (which expired on 12 May 2019) and therefore the invalidity notice was a
nullity and the Tribunal had no power to examine the proposal (see Miller-Mead v. Minister).

Issue

9. The issue in this case was purely a legal one being: can an invalidity notice be issued
outside of the statutory period.. A proposal was served. The regulations allowed the Listing
Officer to serve an invalidity notice within four weeks of a proposal being received. In this
appeal the Listing Officer served the notice late. Mrs Upton says the regulations don’t cater
for late service of an invalidity notice.

The Law

10. The Council Tax (Alteration of Lists and Appeals) Regulations 2009 state in relation to
invalidity (I have highlighted in bold the relevant sections):

7 Proposals treated as invalid

(1) Where the LO is of the opinion that a proposal has not been validly made, the LO
may within four weeks of its service, serve notice (an “invalidity notice”) on the
proposer that the LO is of that opinion, and stating—

(a) his reasons for that opinion, and

(b) the effect of paragraphs (3) to (6).

(2) The LO may at any time withdraw an invalidity notice by notice in writing served on the
proposer; and on such withdrawal any appeal against the invalidity notice shall be treated as
having been withdrawn.

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 (3) Unless an invalidity notice has been withdrawn in accordance with paragraph (2), the
person on whom it is served may, within four weeks of its service —

(a) subject to paragraph (4), make a further proposal in relation to the same dwelling,
notwithstanding the previous expiry of any period applicable under regulation 4, or

(b) appeal against the notice to the relevant valuation tribunal.

(4) No proposal may be made under paragraph (3)(a) where the proposal to which the
invalidity notice relates was made under paragraph (3)(a) or after the expiry of any period
applicable under regulation 4.

(5) …

(8) Until it is finally decided that the proposal to which an invalidity notice relates was validly
made, regulations 8 to 12 shall not apply in relation to the proposal; and where it is finally
decided as so mentioned, those regulations shall have effect as if the proposal had been
served on the LO on the date of that final decision.

(9) For the purposes of paragraph (8), a final decision is made—

(a) where the invalidity notice is withdrawn, on the day of the withdrawal;

(b) in any other case, on the day on which—

(i) the VTE having determined the appeal, the period within which an appeal may be made to
the High Court under regulation 45 of the VTE Procedure Regulations (notification of further
proceedings) expires without such an appeal being made; or

(ii) the High Court determines the appeal.

(10) Nothing done under this regulation shall be construed as preventing any party to
an appeal under regulation 10 from contending for the purposes of that appeal that
the proposal to which the appeal relates was not validly made.

11. Regulation 10 states:

10 Disagreement as to proposed alteration

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 (1) Where the LO has—

(a) made a decision under regulation 9(1)(b)(iv); and

(b) served a decision notice on the proposer in accordance with regulation 9(2),

the proposer or any competent person may appeal to the VTE against the LO's decision.

(2) Subject to paragraph (3), an appeal under paragraph (1) shall be made within the period
of three months beginning on the date on which the decision notice was served on the
proposer.

(3) Where—

(a) an appeal made under paragraph (1) is made after the end of the period referred to in
paragraph (2); and

(b) the VTE President is satisfied that the failure to initiate the appeal within that period has
arisen by reason of circumstances beyond the control of the proposer or a competent person
(as the case may be),

the VTE President may authorise the appeal and shall notify the appellant as soon as
reasonably practicable of the authorisation.

12. There was an advantage to the appellant in allowing the proposal to progress to its
conclusion. Regulation 9 required the Listing Officer to consider whether there were merits
in the proposal and where appropriate adjust the band (well-found it). Where no such
alteration took place a decision notice was served on the taxpayer. If that consideration
under regulation 9 reviewed the band it would allow the appellant an opportunity otherwise
not available to them. Regulation 9 stated:

9 Decision of listing officer

(1) Within the period of four months beginning on the date on which the proposer served the
proposal on the LO—

(a) the LO shall decide whether—

(i) the whole of the proposal is well-founded;

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 (ii) only part of the proposal is well-founded; or

(iii) the whole of the proposal is not well-founded; and

(b) in relation to any dwelling to which the proposal relates—

(i) where the decision is that referred to in sub-paragraph (a)(i), the LO shall decide to alter
the list accordingly;

(ii) where the decision is that referred to in sub-paragraph (a)(ii), the LO may reach an
agreement with the proposer on an alteration of the list, which is in accordance with this
Part, in terms which are partly different from those contained in the proposal but otherwise in
accordance with the proposal;

(iii) where the decision is that referred to in sub-paragraph (a)(iii) the LO may reach an
agreement with the proposer on an alteration of the list, which is in accordance with this
Part, in terms which are wholly different from those contained in the proposal;

(iv) where the decision is that referred to in sub-paragraph (a)(ii) or (a)(iii) and the LO
decides not to, or is unable to, reach an agreement with the proposer on an alteration of the
list, the LO shall decide whether or not to alter the list in relation to any dwelling to which the
proposal relates.

Decision and reasons

13.I find as a fact that the invalidity notice was served out of time and therefore the notice was a
nullity and that the proposal should proceed to be considered in accordance with regulation
9. Once that consideration has been made, in the event of a disagreement over the
proposed alteration, Mrs Nicholson is correct that the question of validity can be raised at the
appeal stage in accordance with regulation 7(10). However, Mrs Nicholson cannot rely on
regulation 7 (10) at this stage because regulation 10 is not yet engaged.

14.Mrs Nicholson conveyed to me some of the potential difficulties in meeting the twenty-eight-
day deadline and that provision was made for a validity challenge to take place outside of
regulation 7(1). I agreed that it does later in the process, and I am aware that some of
panels have upheld the Listing Officer’s contention at earlier hearings. However, I am
satisfied as a matter of law that there is no provision within the regulations to provide for

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 service of an invalidity notice once the statutory period for service has expired. Therefore,
the Appellant’s submission must succeed.

15.In conclusion, whilst validity can be raised later in the appeals process there is a clear
advantage to the taxpayer if the Listing Officer misses the boat and in the absence of any
statutory authority, I have no discretion to extend time.

16.Therefore, I the only conclusion can be is that the notice in this appeal was a nullity. I am
to an extent left in a quandary as to how best to progress the proposal. Valuation
implications arising from a proposal can only be considered in a case such as this, after the
invalidity notice has been withdrawn by the Listing Officer or the VTE has upheld the appeal
against the notice. Therefore, in my view the authority must now examine the proposal and
conclude what is the merit in it. I would imagine given the duty to maintain an accurate list
that if any merit is found then appropriate action may be taken and whilst invalidity could
again be raised again, it seems to me that the best course would be to consider the merits
and decide the matter.

17.It may be that the appellant would have been better served by seeking judicial review
although that would be a costly process on what appeared to me to be a simple point as my
powers are limited.

Date: 5 October 2020

Appeal number: M0853419

President

Registrar

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