Business rates appeals not invalid

The Upper Tribunal (Lands Chamber) decision in The Appeals of Thorntons plc and Clarion Solicitors Limited (2018) UKUT 0109 (LC) has reinstated two appeals that had been dismissed by the Valuation Tribunal for England (VTE) as being invalid. The decision also adds some important guidance to the VTE regarding the exercise of its powers.

The case concerned appeals made by two different ratepayers, but in similar circumstances, which were dealt with together by written representations. In each case the ratepayer concerned had made an earlier appeal against their rating assessment which had been agreed with the Valuation Officer. The Valuation Officer issued notices in each case giving effect to the agreed assessments. Each of the ratepayers then made a further appeal, this time against the Valuation Officer’s notice giving effect to the agreed assessment. Because these second appeals were not agreed, they were referred to the VTE for determination. At the VTE hearing the Valuation Officer did not contest the validity of the second appeals, but the Clerk to the VTE advised the panel hearing the cases that the appeals were invalid as they were duplicates of the original appeals. The VTE dismissed both appeals, considering them to be invalid as duplicates of the earlier appeals. In each case the ratepayer appealed to the Upper Tribunal (Lands Chamber) against the dismissal.

The VTE decision in respect of Thorntons’ appeal considered that, despite being made as an appeal against the alteration made to the rating list by the Valuation Officer “in reality the second proposal was made challenging the accuracy of the compiled list entry”. The decision went on to say that “The ratepayer seemed to be trying to secure a second bite of the cherry which amounted to an abuse of process”. This decision was the subject of an application to the President of the VTE for a review, but the review application was refused and the resulting reasons for refusal were circulated to other VTE panels, including the panel hearing the second appeal by Clarion Solicitors, which issued a decision in similar terms.

Before the Upper Tribunal both ratepayers contended that, whilst the regulations prohibited duplicate appeals made “on the same grounds and arising out of the same event”, the second appeal was in each case made on different grounds, and in each case arose out of a different event – the first event being the compilation of a new rating list and the second event being an alteration to that list by the Valuation Officer. The Valuation Officer did not respond to these appeals as the question of validity had not been contested by the Valuation Officer in either case.

The Upper Tribunal found that, in both cases, the second appeals had been made on different ground from the first, and arising out of a different event. The second appeals were, therefore, not duplicates of the first and were not invalid and should therefore be remitted to the VTE for hearing on the basis that they represented valid appeals.

The Upper Tribunal went on to make some further observations regarding the VTE’s hearing of these matters which it considered to be unsatisfactory. In both cases, despite both parties accepting that the appeals were valid, the VTE proceeded to raise the issue of invalidity, of its own volition, at the hearing and without prior notice to the parties. The Upper Tribunal considered that this was unfair and “created a real risk that the VTE’s impartiality might appear to be compromised”. The Upper Tribunal was also critical of the VTE’s reliance on an “abuse of process” for dismissing the appeals, pointing out that the conduct of the appeals did not amount to an abuse of process under Civil Procedure Rules and, in any event, the VTE’s powers did not allow it to dismiss appeals for abuse of process. The Upper Tribunal found that “On whichever basis the VTE acted it was not necessary for it to introduce the concept of abuse of process”.

This decision follows the Upper Tribunal’s decision in the Simpsons Malt case, reported on in these news pages last year, and raises concerns as to whether the VTE is now going too far in its determination to impart its own views on points of jurisdiction and procedure. It must be hoped that the comments from the Upper Tribunal will lead to a renewed focus by the VTE on the question of maintaining a correct rating list, rather than disputing points of jurisdiction or procedure.