c-ct-man-sect3-wales-part2

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Part 2: Invalid Proposals and Invalidity Appeals – Wales

Legislation for Wales held in Statutory Instrument 1993 No. 290 The Council Tax (Alteration of Lists & Appeals) Regulations – SI 1993/290

VO letters and forms which are not included as appendices are available as MS Word Templates.

2.1 Introduction

A decision on whether or not to serve a Notice of Invalidity must be made by the LO within 28 days of the receipt of the proposal form or of the letter purporting to be a proposal. Specific guidance is given in Section 3 part 1 paragraph 1.3 and Appendices 3.2, 3.3 and 3.4.

A proposal should be considered as invalid where:-

i) it is served on the LO after any statutory time limit has expired; or

ii) it is made by a person who is not entitled to make a proposal; or

iii) it does not contain all the information statutorily required; or

iv) it is not made in any of the circumstances outlined in Regulation 5 of the 1993 Alteration of Lists and Appeals Regulations (SI 1993/290) for Wales.

If the proposal is valid, except that a certain item of information is missing, it should not be treated as invalid but should be returned to the appellant with a request to complete the form. If it is returned completed, it should be registered as a valid proposal and dealt with in accordance with Part 3 if it then passes all other tests for validity.

All invalid proposals need to have had a code of grounds allocated to them, and added in manuscript to the proposal form in accordance with paragraph Section 3 part 1 paragraph 1.15.

It should be noted, in the context of time limits, that for a proposal as a 'new taxpayer' to be accepted as within time to be valid (i.e. 6 months from becoming the taxpayer), the clock starts ticking from the date they first became liable (solely, jointly etc.) to pay council tax in respect of that dwelling, which may be later than the date they acquired an interest in the property.

Occasionally the two dates may not tally. Where this becomes a particular issue advice should be sought from the Head of CT Technical.

2.1.1 Following the VTE decision in Alexander VO v Imperial Tobacco, certain principles were accepted concerning determining invalidity, and all advice in this section is subject to these principles. In summary, defects in proposals will come within four categories and this will determine LO action as follows:

1. Minor clerical error - does not require invalidity notice.

2. Significant omission - may or may not require notice depending on what is omitted.

3. Misleading information – in all cases where deliberate will require invalidity notice.

4. Fundamental error - does require invalidity notice, or can be raised at later date.

Only in category 1 will an invalidity notice never be served. Only in category 4 will a notice always be served. In categories 2 and 3, the deciding factor is, will the omission of poor information prejudice the LO’s case to arrive at a correct band?

In categories 2 and 3 the LO does not have the right to raise invalidity at a later date, where a notice could have been served within 28 days, using information available, but wasn’t.

Only in category 4 can a LO raise invalidity outside the time limit, or even at an appeal hearing, when it becomes apparent that a fundamental problem exists with the proposal, that could not have been determined earlier.

Examples of categories

Minor clerical errors: spelling errors, wrong post code, not signed but where name given

Significant omission: Where information statutorily required is omitted. In this case the onus is on the LO to make a judgement on receipt as to whether the omission will be detrimental or prejudicial to the LOs case or ability to maintain a correct list. An invalidity notice will not be required when

The date of the LON is missing and the date is known and within time limit.

The date of becoming new taxpayer is missing but LO knows from a transaction that proposal would be valid

Misleading or incorrect information: A judgement must be made on a similar basis to 2. above. Most usually misleading or incorrect information will be prejudicial to LO properly carrying out his/her duty. Deliberate attempts to mislead will invariably be treated as invalid. A proposal that claims a property has been subject to a physically changed locality, that is judged not to be so, will come under this category.

Fundamental errors:

Taxpayer not occupier of dwelling with no proposal rights.

Property mis-identified on proposal.

2.1.2 The following table gives examples of 2, 3, and 4 above with appropriate action

Significant Omission

May or may not require notice depending on what is omitted. Cannot raise at later date.

Where essential information is missing, return to taxpayer with Invalidity Notice, but draw attention to defect and give opportunity to amend and re-serve as a valid proposal.

Misleading Information

In all cases where deliberate and significant, will require invalidity notice. Cannot raise at later date.

Fundamental Error

Does require invalidity notice, or can be raised at later date.

A new taxpayer makes a proposal but doesn't write the date on which they became the taxpayer.

● If we know the date (we have a record of the transaction). We can make this valid if it is within the time limit.

Deliberate attempts to mislead will invariably be treated as invalid. When a knowable error is not spotted and we do not serve an Invalidity Notice, we cannot raise invalidity again at a later date, or at the hearing.

Examples might include:

● Change to the property as cited hasn't happened
● Physical Change to the locality that hasn't happened.

Lacks the name and address of the proposer, and the capacity in which the proposer makes the proposal.

● We must make sure that the proposer has a legal right to make the proposal.

A taxpayer makes a proposal against a notice but doesn't write the date of the notice;

● We will know the day - (look it up on the CDB). We can make this valid if it is within the time limit.

Does not correctly identify a relevant decision of the VTE or the High Court relates.

Fails to establish an essential link between relevant decision and their own property, but provides spurious reasons.

● The proposer does not need to provide the date of that decision; we can find that ourselves.

Does not identify the dwelling to which it relates; this need to be clearly identified.

● Make a reasonable attempt to match with the correct CDB entry before serving an invalidity notice. This may include returning the proposal for clarification or telephoning the taxpayer for more information.

If the balance of a composite has been changed and a proposal has been made without a date of the change being included. LO cannot alter list correctly without a date;

● Invalid return to taxpayer for completion.
● If the date is known to LO consider serving LON to correct list.

   

Proposal in letter form where it is clear what the taxpayer is seeking, though not all the information is present or in the statutory form;

● Accept as proposal where intention is clear, and substantially conforms.

   

A statement of the reasons for believing the list to be
Inaccurate;

● If it is clear from the context of the rest of the proposal then we can accept as valid.

   

Not telling us the date/description of the material increase or reduction. The date date/description will usually be key to us dealing with the case;

● Invalid - Return to Taxpayer for completion.

   

If the proposal disputes the day from which an alteration should have effect, a statement of the day proposed in its place.

● Invalid - Return to taxpayer for completion.

   

Does not identify the respects in which it is proposed the list be altered;
● Invalid - Return to taxpayer for completion.

● A statement or clear inference a band reduction is required, but a specific band not essential.

   

For more detail please see Appendix 3.3 to this section - Basic requirements for a valid proposal.

2.2 Recognising invalid proposals at point of receipt

2.2.1 Who may make a valid proposal?

An interested person who may be

● The taxpayer

● The occupier

● The owner (if neither the taxpayer or occupier) providing he has a material interest in the dwelling AND at least part of the property is not subject to an inferior interest ie has not been let out and part is retained available for occupation. (See definition of owner in LGFA 1992 s6(5)).

If a proposal is not received by one of the above or an agent who has authority to act on their behalf, it will be invalid.

2.2.2. Proposals not subject to time limits

● Proposals on grounds of material reduction (see 2.23)

● Proposals requesting a new dwelling or deletion of a dwelling

● Proposals for a change in balance of domestic value in a composite dwelling, or becoming or ceasing to become composite

2.2.3 Proposals made on ‘material reduction’ grounds

There are three types of change that might lead to a 'material reduction':

(i) demolition in whole or part

(ii) any change in the physical state of the dwelling’s locality

(iii) works of adaptation for disabled person

In cases (1) and (iii) it is usually clear from the proposal whether demolition has taken place or whether there has been adaptation for a disabled person, but a validity decision in a change in the physical state of the dwelling's locality case can be difficult to make at the point of receipt.

The proposer has to be of the opinion that a material reduction has arisen. The actuality cannot be judged at point of receipt. However, where the grounds on the face of it do not satisfy the wording of the legislation the proposal should be declared invalid.

2.2.4 Explanation of ‘physical state of a dwellings locality’

The phrase ‘physical state of the dwelling's locality’ should be taken to imply something fixed and permanent, not something which is transient (i.e. subject to daily or weekly change). Increases in traffic and associated nuisance are not valid grounds, unless the local cause is rooted in some physical change to the fabric of the locality.

The Court of Appeal in Chilton-Merryweather v Hunt & others 2008 confirmed existing VOA understanding of the law. The appeal related to material reduction and the meaning of the words ‘physical state’ in relation to four validity appeals concerning traffic increase on the M61 and associated nuisance.

There are two elements to consider:

• Has there been a 'change in the physical state'?

• Is it within 'the dwelling's locality'?

change in the physical state...

In essence ‘a change in the physical state’ means a change in the physical landscape, buildings or infrastructure, and could include, for example, new telephone masts or pylons, new or widened roads, and new or extended buildings. An intensification of an exiting use (e.g. an increase in the volume of traffic) does not constitute a 'change in the physical state', but permanent alterations to a road layout would constitute such a change.

the dwelling's locality…

What constitutes the dwelling's locality will be a matter of fact and degree. In general, the smaller the 'change in the physical state', the smaller the locality within which it might have a value impact. An extension to 5 Acacia Avenue is a 'change in the physical state' and is clearly in the 'locality' of 3 Acacia Avenue, but is not likely to be in the 'locality' of 123 Acacia Avenue. A new sewage works close to Acacia Avenue is also a 'change in the physical state' and would most likely be perceived as being in the locality of all of Acacia Avenue (and beyond).

The general principles to be adopted are that a proposal may be accepted as valid where any 'change in the physical state' has occurred, and has been identified on the proposal, which could reasonably be said to be in 'the dwelling's locality'. The proposer only has to be of the opinion that the valuation list is inaccurate and the change has caused a material reduction in the value of the subject dwelling such that a lower banding is warranted. Whether we agree with this opinion is a matter for valuation, and does not affect validity of the proposal.

Under Reg 6 (1)(d) and point (ii) (Wales), the proposer must include a statement of the reasons they believe that a 'material reduction' has occurred. Where this involves a 'change in the physical state', that change must be identified. If that change is within the 'dwelling's locality' then the proposal is valid. Whether the change is band significant cannot often be determined at the point of receipt, but the fact that you don't think it has much affect at all on value is not a reason for challenging the proposal as invalid.

Examples of a change in the physical state of a dwelling's locality

There will be many possibilities, but the following examples may help:-

• The moving of a lamp post a few feet – invalid. This would not considered to be a change to physical state as there was a lamp post in the locality before.

• The completion of a new road layout close to the boundary of the property – valid

• The completion of a new road layout a mile from the property, which is said to cause extra traffic – invalid. (The new road layout is a 'change in the physical state' but would not reasonably be considered to be 'in the dwelling's locality'.

• Increase in noise and pollution since AVD due to general traffic increase – invalid

• The completion of a Nuclear Power Station, say a half a mile (or more) from the property – valid. (It would be difficult to argue that a change of that scale would not be considered to affect values in quite a wide locality. The issue will then be whether the affect is such that a lower band is warranted.)

• The discovery of contamination, which pre-existed the dwelling, and was present at AVD - invalid, no physical change to state of dwelling’s locality.

If at the point of receipt, it is not be possible to determine whether or not the change is in the dwelling's locality or not, the proposal should be treated as valid and challenged later when the contrary facts are known.

The examples above are illustrative only. The concept of 'locality' cannot be interpreted as a purely geographical distance. The size and scale of a physical change will influence how wide the 'locality' is and its effect on value. A small change may be value significant in a small locality, whereas a major change could well have impact over a greater distance.

Any change in the physical state of the locality has to be considered in terms of the economic and market conditions at the AVD of 1 April 1991. Whether such changes will be band significant will depend on the evidence. What is perceived to have an effect on value today may not have been relevant at the AVD.

2.3 Initial Registration

Every invalid proposal needs to be registered in the Council Tax application immediately following the decision on validity. Ensure that the case type (which defaults to "V" in Wales is overwritten with "I" on each occasion. A working docket VO7456 should be requested on the day following registration and added to the originating proposal. Owing to the limitations of the application, it is not possible for this to be output on the same day as registration.

If Part D of VO7455 (Dwelling Details) has been completed, the opportunity should be taken to check the individual property details held against the address within Property Details, and to input/amend them as necessary.

2.4 Serving Notice of Invalidity

When a LO considers that a proposal is invalid, he/she must serve a notice on the proposer under Reg 8(1) (Wales) within 28 calendar days stating:-

i) why the proposal is considered to be invalid;

ii) the rights of the proposer if he/she disagrees with the LO’s opinion.

Where the proposal is considered invalid for a reason other than being “out of time”, the proposer will have the option of submitting a further proposal on different grounds.

The notice of invalidity accompanies letter VO7735 (2005.) or 7735 (2007) which must be completed as appropriate and issued in all circumstances. This must be accompanied by letter VO7734 (0407) or 7734 (web 0407) which is a non-statutory letter that explains the situation in more general terms. The VO 7734 has paragraphs relating to registering a CR15. If this is not the case, these paragraphs must be removed. These letters are not system generated and must be created using word templates.

Copies of both letters should be stapled to the original document and the working docket. The date of the VO7735 may be entered on the working docket as the date acknowledged. The letters are also to be stored in EDRM.

2.5 Schedules of Invalid Proposals

Hardcopies of the Invalid Proposal should be stored in a binder and a CS1 enquiry report should be undertaken on a weekly basis to monitor those still outstanding.

2.6 No Response to Notice of Invalidity

If there is no response within 28 calendar days of the service of a Notice of Invalidity, the LO should send letter VO7718 from MS Word Template (paragraphs to be deleted if no CR15 registered) notifying the appellant that the appeal is deemed to have been withdrawn. The service date should be calculated in accordance with Appendix 3.6. A copy of the letter should be attached to the existing correspondence (and a copy stored in EDRM) and the appeal withdrawn on the computer using settlement code 'N' - Invalidity Notice withdrawn.

A LO report (CR15) should be requested in accordance with section 2, part 1 paragraph 1.3 if this has not already been carried out.

2.7 Appeal against Notice of Invalidity

If a disagreement against the Notice of Invalidity is received, it should be acknowledged and linked to the existing papers. This is normally in the form of a letter addressed to the LO from the appellant and is to be treated as a disagreement. The date of receipt of a disagreement must be immediately input into the CDB in the field 'Disag Rec'd Date'.

Following the receipt of a disagreement, the LO has a further 28 calendar days to review the question of the validity by considering any additional information given.

2.8 Receipt of Fresh Proposal

On the rare occasion where a fresh proposal is received in response to a Notice of Invalidity, the original proposal is deemed to have been withdrawn. The CDB record for the invalid proposal should be closed using settlement code 'N'. The fresh proposal will need to be considered for validity on its own merits. The withdrawn invalid proposal and copy correspondence should be kept with the fresh proposal.

2.9 Original Proposal now Considered Valid

When the LO has reviewed the validity and now considers that the appeal is valid (i.e. withdraws the Notice of Invalidity), the invalid case should be cleared on the system using settlement code 'J' - appeal decision - valid.

A fresh case for the valid proposal should be registered in accordance with Section 3 part 3, with the date of the LO’s decision to treat it as valid being input as the date of receipt. This will not affect the effective date of any alteration resulting from the appeal; this will still relate to the date the proposal was originally received. If a hardcopy register is maintained, it should be noted accordingly.

VO7740 from MS Word Template advises that the proposal is now being treated as valid and should be sent to the appellant. This also provides the name of the caseworker. A copy should be kept with the papers and the whole cased up in accordance with Section 3 part 3 paragraph 3.6.

An acknowledgement letter VO7852 will be output automatically for the valid proposal. This is not required and should be destroyed; the acknowledgement is included in the VO7740. The working docket for the now valid proposal should be endorsed with the date of the VO7734 (0407) or 7734 (web) 0407 (letter to accompany Notice of Invalidity) as the date of acknowledgement.

2.10 Original Proposal Considered Invalid

When the LO has reviewed the validity and still considers that the proposal is invalid (i.e. does not withdraw the Notice of Invalidity) a letter VO7739 from MS Word Template should be sent to the appellant. A copy should be kept with the papers and all papers placed in a plastic wallet.

The appeal will be automatically included in the next scheduled transmission to the VT as soon as the 'Disag Rec'd Date' is input. Copies of the following must be forwarded:-

i) the originating proposal form/letter;
ii) the LO’s Notice of Invalidity (VO7735);
iii) the appeal against the Notice of Invalidity;
iv) any acknowledgement of the appeal.

At the same time, the LO should arrange for a LO Report (VO 7452) to be raised in accordance with Section 2 part 1, and added to the case papers if this has not been carried out. This will allow the caseworker to review the band at the same time as discussing the validity with the appellant and can often result in the appeal being withdrawn.

2.11 Activity Codes

Activity Codes are fully described in the CT Mini Work Aid, which can be accessed, via a link from the CT & HA Homepage. The use of activity codes is equally as important for invalid appeals as for valid appeals.

2.12 Settlement without Valuation Tribunal Hearing

If the appellant withdraws the appeal, the case should be cleared in the Council Tax application using settlement code 'I' - appeal decision - invalid. The clearance will be automatically included in the next VT transmission if the appeal has been transmitted. It is recommended that the appellant is asked to complete a standard withdrawal form VO 7480 (if the appeal has not yet been transmitted to the VT) or VO 7481. See Section 3 part 3 paragraph 3.16.

A review of the band should then be carried out if this has not already taken place. The papers relating to the invalid appeal should be kept with the LO Report.

If the LO, having transmitted the papers, decides that the appeal is valid after all, the case should be cleared on the CDB using settlement code 'J'. The clearance will be automatically included in the next VT transmission. A fresh case for a valid appeal should then be created in accordance with Section 3 part 3.

2.13 Invalidity hearing at Valuation Tribunal

‘VT Presentation for Invalidity Appeals’ (Appendix 3.9) has been designed to assist caseworkers prepare cases for invalidity hearings. The scenarios cover a range of invalidity possibilities, paragraphs, subject heads, and the relevant regulations are set out to cover specific circumstances applicable to each case.

2.14 Settlement by Valuation Tribunal decision

When the VT has issued its decision, the case should be cleared on the CDB using settlement code 'I' or 'J' as appropriate.

When the decision is that the appeal proposal is invalid, a review of the band should be carried out if this has not already taken place. If the review has already taken place, no further action need be undertaken. In both instances the papers should be kept with the LO Report.

When the decision is that the appeal is valid, a fresh case for a valid appeal should be created in accordance with Section 3 part 3, with the date of the decision being input as the date received. Letter VO7719 should be obtained from MS Word Template and issued instead of the automatically generated VO 7705; the latter should be destroyed. The working docket for the (now valid) appeal should be endorsed with the date of the original VO7734 as the date of acknowledgement.

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