Occupancy and Sole or main residence
A person is regarded as being resident in the property where their ‘sole or main residence’ is to be found but they may also be occupying a property if they are living in it and it is not their ‘sole or main residence’ .
Determining these factors can be a complicated process and there is a multitude of case-law which has shaped the decision making process. Care must be taken to ensure that the correct decision is being made. A wrong decision can affect the Council Tax charge due. If a mistake is made then this can be amended retrospectively and backdated.
Council Tax is due as a Daily Charge
Council Tax charges are calculated on a daily basis. This means that the circumstances for each day must be looked at. The Local Government Finance Act 1992 (LGFA92) states that;
2 Liability to tax determined on a daily basis
(1) Liability to pay council tax shall be determined on a daily basis.
(2) For the purposes of determining for any day–
(a) whether any property is a chargeable dwelling;
(b) which valuation band is shown in the billing authority’s valuation list as applicable to any chargeable dwelling;
(c) the person liable to pay council tax in respect of any such dwelling; or
(d) whether any amount of council tax is subject to a discount and (if so) the amount of the discount,
it shall be assumed that any state of affairs subsisting at the end of the day had subsisted throughout the day
What is a ‘Resident’ for Council Tax?
Calculation of a Council Tax charge must look at whether anyone is resident .The definition of resident is shown in Section 6 of the Local Government Finance Act 1992
“resident”, in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling.
There is no minimum period of occupancy required to be regarded as being resident in a property. In some case residence can take place even if the property is not physically occupied.
To be resident for Council Tax purposes it must be a person’s ‘sole or main residence’. Most people only have one residence. Where a person lives between multiple properties, determination of the ‘sole or main residence’ becomes more important. There is no minimum period of occupancy required to be regarded as being resident in a property. In some case residence can take place even if the property is not physically occupied.
‘Sole or main residence’ is not defined in legislation. Case-law has determined that a good indication would be to consider where an independent, outside observer, would say that person was living when presented with the information at hand.
If consideration of ‘sole or main residence’ would indicate that they are no longer living in the property and there was no ‘intention to return’ to live in it then it is likely that they would no longer be regarded as resident for Council Tax purposes. The property may be regarded as unoccupied.A key piece of case-law in respect of ‘sole or main residence’ is that of R(Williams) v Horsham District Council 2004. It was it was stated that:
The qualification “sole or main” addresses the fact that a person may reside in more than one place. We think that it is probably impossible to produce a definition of “main residence” that will provide the appropriate test in all circumstances. Usually, however, a person’s main residence will be the dwelling that a reasonable onlooker, with knowledge of the material facts, would regard as that person’s home at the material time. That test may not always be an easy one to apply, but we have no doubt as to the conclusion to which it leads in the present case.
Although occupancy and residence go hand in hand the two terms are separately defined within Council Tax legislation. A person can in principal be in occupation of a property for Council Tax purposes without being ‘resident’. Some Council Tax reductions or premiums only require occupancy (such as the ‘long-term empty’ premium) and therefore do not directly appear to require ‘residence’.
An unoccupied dwelling is defined as
an “unoccupied dwelling” means a dwelling in which no one lives.
and likewise the definition of an occupied dwelling should be read on this basis
In appeal 0345M108475/037C the Valuation Tribunal, when considering the position of occupation versus residence stated that;
A property that is unoccupied is defined as one in which no one lives and while the appeal property may indeed have remained the Appellant’s main residence, to where she would return when the work being done was completed, she was not actually living in the dwelling during the period in issue in this appeal.
Similar comments were also made in respect of appeal 4725M179333/254C
The fact that the tenant’s sole or main residence had changed was not the determinative factor. Whilst a person’s sole or main residence can only be at one address on any one date, a person could potentially still occupy or furnish two dwellings at the same time.
This point however appears to need further clarification by way of Tribunal decisions and High Court appeal as it open to argument in many cases.
John and Emma live at Property A at their family home. Both John and Emma have the property as their ‘sole or main residence’. They are therefore resident for Council Tax purposes.
Emma moves to Property B as she works in that area. She rents a room in Property B and stays Monday to Friday but returns to Property A on weekends. She would move back to Property A if her job was to end. Emma is still regarded as being resident at Property A. For Council Tax purposes as it remains her ‘sole or main residence’ .
Emma decides that she no longer wants to return to live at Property A. It is likely that she ceases to be regarded as resident at Property A and it ceases to be her ‘sole or main residence’. In the absence of any other residence then she would likely be regarded as resident at Property B. If John was still resident at Property A by himself then he could claim a single occupancy discount.