Parry v Derbyshire Dales Council [2006] EWHC 988 Admin

This was an appeal by P against the dismissal of his appeal by the Valuation Tribunal (the Tribunal) that a cottage which he had rented out whilst he was working abroad, was his sole or main residence and that he was therefore liable to pay 75% of the council tax, on the basis that he was a resident with a freehold interest or as the owner of the property..

P let the cottage which he owned to a tenant whilst he worked and lived abroad for a period of 2 years.  After 15 months the tenant gave notice and P accepted the termination of the tenancy.  After failing to find alternative employment abroad, P returned to live at the cottage almost seven months after the tenancy’s termination, during which time the cottage had remained empty.  The local authority decided that he should pay 75 per cent of the council tax instead of the 50 per cent for which he would have been otherwise liable simply as owner, on the basis that he was a resident with a freehold interest under the Local Government Finance Act 1992 s.6 (2)(a) or as the owner under s.6(2)(f) of the Act.  The Tribunal held that the cottage was P’s main residence following the period that the tenant had moved out because (i) there was no legal impediment to his residence and he had resumed living in it and (ii) he enjoyed a greater security of tenure of the cottage than his rented property abroad.

The High Court held that a Tribunal should not give too much weight to points (i) and (ii) above so that they were elevated into principles of law. Williams v Horsham DC [2004] EWCA applied.  The determinative factor of a person’s main or sole residence was his actual place of residence, judged objectively.  P had ceased to reside in his cottage when he went abroad for a protracted period and let it for a period of two years. The fact that his tenant left did not mean that P had ceased to reside abroad or had resumed residence in England, and any intention on his part to return did not mean that immediately on the conclusion of the tenancy the cottage again became his sole or main residence. It was necessary to know when a person intended to return to determine when the date from which a property might again be his sole or main residence. P had not intended to return on the termination of the tenancy and had sought alternative employment abroad. The removal of the legal impediment to the residence of a freehold owner did not of itself result in his residing in the dwelling; residence was a question of fact, not simply of law.

Comment: this case has implications for ordinary residence decisions, and makes it clear that the question is one of intention, and is a matter of mixed fact and law. Authorities maintaining that they are not liable to make arrangements for a social care client because the client has a property elsewhere should take note. Likewise authorities who believe that they can sign protocols between themselves so as to make the matter one of convenient agreement as between authorities, without regard to the facts.

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