Part 10E: Appeals (CCA)

The Valuation Office Agency's (VOA) technical manual for the rating of business (non-domestic) property.

See RM Section 7, Part 2: VT procedures on Appeals

1.0 LEGAL BACKGROUND

1.1 Summary of Relevant Legislation & Practice Statements

The references in this documents refer to Part 2 and Part 4 of the Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2023, where other Regulations are referred to these are identified.

Relevant Legislation

(a) The Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2023

(b) The Non-Domestic Rating (Material Day for List Alterations) 1992 (SI 1992/556) (as  amended by SI 2017/155)

References

  • ‘VO’ in this document refers to Valuation Officer

  • ‘VOA’ refers to the Valuation Office Agency

  • ‘CVO’ refers to the Central Valuation Officer

VTW PROCEDURES

For VTW procedures at the hearing please refer to Rating Manual VOA - Part 2A: VT Procedures - Wales and the VTW Best Practice Protocols on the VTW website.

1.2 Summary of changes

The appeal process has changed substantially for 2023 and subsequent lists and all appeals now have to be made direct to the VTW via the VTW electronic portal or as otherwise agreed.

The appeal is against the decision notice and not the proposal.

The Appellant is responsible for submitting all documentation, relating to the proposal arising at the Challenge stage, with the appeal.

No new evidence may be introduced at the appeal stage unless specific exceptional circumstances apply.

The standard of proof required for valuation is that the Rateable Value is not reasonable (Reg 24(2)).

1.3 Making an Appeal

No appeal can be made if the proposal (challenge) was well-founded, withdrawn or agreed with the IP (Reg 24(1)).

An Appeal can only be made where the VO’s decision regarding the proposal

(a) was not to alter the list (Reg 24(1)(a))

(b)   was to alter the list but not as proposed by the Challenge (Reg 24(1)(b)) or

(c)   the VO has failed to make a decision and issue a notice within 18 months from the date on which the proposal was made and there has been no agreement or withdrawal. (N.B. The VO may agree in writing to a longer period).  (Reg 24(1)(c))

An appeal may be made on the following grounds only:-

(Reg 24(2))

       (a)    the valuation is not reasonable

       (b)    the list is inaccurate in relation to the hereditament other than in relation to  valuation.

‘Valuation’ in this context refers to the Rateable Value (Reg 24(3)).

In IP may, however, submit an appeal where they have formally objected to a withdrawal of the Proposal by compliance with the requirements of Reg 21(3) and are therefore deemed to take over the Proposal.

1.4 Who can make an appeal / Parties to an Appeal

Only a Proposer may appeal to the VTW (Reg 24(1)).

A ‘Proposer’ is defined as being ‘the person making the proposal’. Consequently, if the current ratepayer or IP is not the maker of the proposal then they cannot appeal the Decision Notice even though under Reg 23(2) a copy of the Decision Notice is served on them. However, they may become party to the Appeal as set out in Reg 2(3)(b) which states that the following persons may be party to an appeal.

(i)    every person whose agreement is required under Reg 22

i.e.

            (a) VO,

            (b) Proposer,

            (c) Occupier (of any hereditament to which the proposal relates) at the date of proposal - subject to being able to be contacted (Reg 23(3)),

            (d) Ratepayer at date of agreement,

            (e) Any IP (in occupation at date of check who has served notice to be a party to proceedings as per Reg 22(2)(f)),

(ii)   anyone who has been a ratepayer of the hereditament since the date of confirmation of check (as defined in Reg 4(1)(c)).

1.5 Time Limit for appeal

An appeal to the VTW must be made within 4 months of the date of the Decision Notice (Reg 25) or

Within 4 months, if no Decision Notice is issued, after the elapse of 18 months from the date of proposal (total of 22 months) or any longer time period as agreed (Reg 25(2)).

If a penalty appeal has been submitted then the time limit for submission of an appeal against the decision notice may be extended (Reg 24(5)) as the Penalty appeal has to be determined first.

1.6 Notice of Appeal

An appeal must be made on the VTW portal (or as agreed with the VTW) (Reg 26(1)).

The notice must set out and include the following (Reg 26(2 & 3)):

(a) the grounds of appeal

(b)    which particulars of the grounds of the proposal have not been agreed with the VO

(c)    a copy of the decision notice if one was issued

(d)    a copy of the proposal and any further evidence provided by the proposer under Reg 15 at challenge stage

(e)    any evidence or information provided by the VO under Reg 15 (Challenge stage)

This means that the notice of appeal must clearly identify which parts of the proposal have not been agreed with the VO and these matters must be within the scope of the original proposal.

The grounds of appeal are restricted to the scope of the originating proposal. If mention has been made of matters beyond the original proposal then this should be raised with the VT as a preliminary issue and a dismissal sought.

That is why it is important in the Decision Notice that if action is taken that is outside scope that it is clearly stated as that cannot form part of the appeal to the VTW from the decision notice. A separate check and challenge would need to be submitted regarding that additional change.

If the appellant submits a late appeal they must include a request for an extension of time and the reason for the request.

1.7 Appeal served out of time

If the appeal is served out of time then an extension must be requested giving reasons for late submission (Reg 26(4)).

Any request must include reasons as to why the notice of appeal was not provided in time.

The VT may notify the VO of any such request and invite the submission of any representations.

1.8 Notification of Appeal

On receipt of the appeal the VTW must send a copy of the appeal notice to the VO and any parties to the appeal (Reg 26(5)).

2.0 APPEAL PROCESS

The appeal process is now under the remit of the VT, however after submission by the Appellant the VO has various actions that need to be taken under the regulations before a hearing can commence.

2.1 Decisions without a hearing - written representations

Reg 37 provides for an appeal to be disposed of on the basis of written representations if all parties have given their agreement in writing.

Generally written representations may only appropriate in very limited cases e.g. it may be possible where there may be a legal issue only to argue.  For valuation matters, issues regarding evidence or complex law matters an oral hearing should be sought to enable the issues to be explored fully and for cross examination to take place.

Requests for litigation without hearings should be referred to the LSRP for consideration before agreeing to this type of hearing with the VTW. 

2.2 Checking the papers sent to the VT and omission of documents

On receipt of notification of an appeal from the VT of an appeal, the VO should check that the information in SharePoint is correct and all the evidence exchanged at challenge has been included and nothing is missing or altered or added (Reg 26(2) & (3)).  

If there is any omission or error then the VT should be notified as soon as possible.

2.3 Evidence provided at challenge stage and discovery of errors in appeal documentation

Reg 15(12) states that the evidence provided by the proposer during challenge forms part of the  proposal.

Reg 15(12)

Any evidence provided by the proposer under this regulation forms part of the proposal and must be provided to the VO—

(a) using the VO’s electronic portal; or

(b) in another manner agreed with the VO.]

Reg 15(7) enables the VO on receipt of the proposal, which would include any evidence from the Proposer, by virtue of Reg 15, to provide information in response.

If the proposal is not resolved, the VO has to issue a Decision Notice. This notice, under Reg 23(3) has to include the reasons for the decision including statements regarding the evidence and information used to make that decision.

Reg 23(3)

(a) a statement that the VO is of the opinion that the proposal is not well-founded, that the VO disagrees with the proposed alteration of the list and that the VO has decided—

  (i) not to alter the list according to the proposal; or

  (ii) to alter the list otherwise than in accordance with the proposal;

(b) the reasons for that decision, including a statement of the evidence and information used to make the decision;

(c) a statement in relation to each of the grounds of the proposal setting out why in the opinion of the VO the ground is not made out, including a summary of any particulars of the grounds of the proposal with which the VO did not agree; and

(d) details of the proposer’s right to appeal against the decision.

The argument, is therefore, as all evidence provided by the proposer constitutes the ‘proposal ‘ as defined in Reg 15(12), then if the ‘proposal’ is received by the VO in stages,  on receipt of that later evidence under Reg(7) the VO can provide a response to it and this evidence should be admissible as evidence at VT as it is required to be included by the regulations.                  

N.B. All evidence referred to by both parties should be included and commented on in the Decision Notice (reg 23(3)). The Decision Notice and VO evidence should be included in the appeal papers (Reg 26(3)(c)) and submitted by the Appellant at appeal stage. As the evidence is required to be included in the appeal papers it is reasonable that it should be admitted as evidence at a hearing.

Without prejudice documentation should not be included in the appeal papers by either party. Any offers to settle etc. are without prejudice and should not be put before the Tribunal. If the email contains any factual or evidential information then the settlement parts should be redacted.

This means, that if the proposer has provided evidence after the initial submission to which the VO has responded with further evidence it should be put to the VT that it is admissible at VT for the reasons stated above.

Reg 26(3)(c) includes the requirement of the Appellant to include any evidence or information that has been sent to him as proposer during the challenge process. This includes the additional or later rental information provided by the VO, provided we have included these in a Reg 48 notice (N.B. an additional Reg 48 notice could be served if required during challenge).

Reg 26C

(2) A notice of appeal must—

(a) set out the grounds of the appeal; and

(b) identify which particulars of the grounds of the proposal have not been agreed with the VO.

(3) A notice of appeal must be accompanied by—

(a) if a decision has been given under regulation 23, a copy of that decision;

(b) a copy of the proposal including any further evidence provided by the proposer under regulation 15;

(c) any evidence or information provided to the proposer by the VO under regulation 15.

Reg 26(3)(c) includes the requirement of the Appellant to include any evidence or information that has been sent to them as proposer during the challenge process. If the Appellant has missed or failed to provide any of the required documentation from the challenge stage in their submission then the process outlined at 2.2 above should be followed.

The evidence presented in the Appeal should be that as submitted as at challenge in the Decision Notice. The rental analysis or valuations should not be ‘re-worked’ or amended for an appeal.

The only exception to this would be where new evidence has arisen (see process below) and the expert valuer determines that in his opinion there has been a change and is then under a duty to inform the Tribunal accordingly. A separate addendum should then be submitted to the Tribunal for consideration clearly identifying what has changed and why.

Errors in the challenge stage

If on reviewing the documentation the appeal caseworker feels there has been a serious error, in our approach or valuation, then the matter should be referred to the team leader. If the RV is considered to be incorrect then attempts should be made to agree the revised valuation and a consent order should be sought.

If agreement cannot be reached then the Surveyor has a duty to the Tribunal that all relevant evidence is put before them and a request should be sought to admit the evidence (Reg 50).

(There may be an option of requesting a consent notice (Reg 38) or to alter the list in accordance with the proposal (Reg 36(3)) if appropriate. In this event a further proposal against this list alteration will not be possible).

Depending on the type of error found in the challenge documents, it is most likely that the Tribunal will consider this to be new evidence. The VO or party, therefore, may have difficulties introducing these issues at a hearing and may have to raise them as preliminary issues.

Evidence

2.4 Admission of New Evidence

In accordance with Regulation 50

New evidence not submitted at challenge stage MAY only be admitted in very limited circumstances.

There are 2 circumstances in which new evidence may be provided:-

(1)  the evidence relates to a ground stated in the proposal and was not known to the party and could not have been reasonably acquired before the Decision Notice and it is provided by a party to the appeal or

(2) all parties to the appeal agree in writing to its inclusion (Reg 50(1)(b)

If the VTW admits the evidence, the VTW may admit further evidence provided by another party to the appeal if the evidence relates specifically to the new evidence and the grounds on which the proposal was made (Reg 50(2). A party which provides evidence under this provision must also provide that evidence to all other parties to the appeal.  

In other words, in the circumstances that the VTW allows further evidence to be admitted, the other parties to the appeal may be allowed to submit evidence in rebuttal.

All rental evidence should have been previously submitted at the Decision Notice stage and accord with the requirements of Reg 48 and if additional rental evidence comes to light at a later stage the parties run the risk of the VT refusing to allow this evidence.

The alternative for admittance of new evidence, is that all parties to the appeal agree that the new evidence can be introduced and that agreement is in writing. This may be difficult to obtain if the evidence weakens the case of one of the parties.

2.5 Presenting the evidence

It is acceptable to prepare an advocacy statement and provide a hard copy pack but the evidence must be presented as it has been exchanged at Challenge.

The only way a different adjustment and analysis of the evidence can be presented is with the agreement of the appellant.  If the adjustment and analysis have not been challenged during the Challenge stage then they should be treated as being accepted and a statement to this effect should have been included in the decision notice.

Expert witness evidence should include a ‘Statement of Truth’ within the document.

At the hearing, the VO should be clear during the proceedings when they are acting as Advocate or Expert Witness.         

Any photos and plans not already in the case bundles that may assist the Tribunal provided they are agreed between the parties as a true representation of the situation at the material day and submitted on the day.

2.6 New evidence, New Grounds, Scope of appeal/proposal and rebuttal

New evidence or grounds

If the Proposer has introduced new evidence either before or at the hearing and it is allowed by the VT:

The VO will need to consider the new evidence introduced and whether the evidence submitted by the VO is sufficient to deal with it. If it is prior to the hearing then Reg 50(2) allows the VO to submit further evidence by way of rebuttal, see 2.5 above

If new evidence is introduced at the hearing itself, then the VO should raise the question of admittance of this evidence with the Tribunal as a preliminary matter. An adjournment should be requested if more time is needed to consider and respond to the evidence.

Scope

The appeal is still restricted by the grounds of the originating proposal at challenge. Therefore if the Appellant has tried to introduce new grounds or information that did not relate to the original challenge this also should be raised as a preliminary issue with the Tribunal for consideration.

Please follow the CCA Appeal protocol document in the Appeal Guidance on the CCA homepage

2.7 Witnesses

If a party appears at the hearing then they have the right to submit an appeal to the Upper Tribunal in the event of an adverse decision.

However, the rules on admittance of new evidence (Reg 50), will restrict the evidence from the new party being used at the hearing, unless their evidence has already been included, by virtue of Reg 15(6) or 15(9), by the VO during challenge and included in the Decision Notice.

If the VO has obtained information from the BA or another party which has been included at challenge, then consideration should be given as to whether to include that party as a witness in the VO case (Reg 43(8)). This could be significant in respect of cases involving completion notices or deletions for example in respect of the BA.

Regulation 2(3) defines who may be a party under the regulations for a Reg 24 appeal.

This includes:

a) everyone who’s signature is required under Reg 22 that is:

        i) The VO

        ii) the proposer

        iii) the occupier at the date of proposal of the hereditament referred to

        iv) the ratepayer at the date of agreement of the actual hereditament referred to

        v) any opted in party (ie someone who is an IP or former IP who would have been able to make that proposal who has opted in within 2 months of the VO receiving the proposal)

and

b) anyone who has been a ratepayer in respect of the subject hereditament since the date of confirmation of the check made by the proposer relating to this case and who has notified the VO that they wish to be a party to the appeal.

Therefore, if there is a person, who was not the maker of the proposal and at any time has been a ratepayer of the hereditament since the check was submitted, can make a request to the VT to be added as a party to an appeal. If their evidence has not been included at challenge stage then it will be necessary to make a request under Reg 50 for their evidence to be admitted at the hearing.

2.8 FORs at VT

In order for the VO to rely on rental evidence and for it to be admitted at VT a Regulation 48 notice must have been issued. As no photocopies of the FORs may be included in the bundles, the caseworker may have to provide the hardcopy documents at the hearing. However, in accordance with Regulation 48(11) which states

‘If any document required to be made available for inspection in accordance with paragraph (6) is not maintained in documentary form, the duty to make it so available is satisfied if a print-out, photographic image or other reproduction of the document which has been obtained from the storage medium adopted in relation to the document is made available for inspection.’

i.e for the purposes of the VT hearing, a printout of our record will be sufficient to satisfy the requirements of the regulations.

See RM Section 6 pt 9 for further information on rental evidence.

3.0 SETTLEMENT OF APPEALS

3.1 Withdrawal of appeal before a hearing

An appeal may be withdrawn at any time before a hearing by giving notice to the VTW.

However, any other party to the appeal who disagrees, may apply in writing to the VTW to have the appeal re-instated (Reg 36(5). Such requests must be within 28 days after the date of notification from the VT (Reg 36(6)).

3.2 Altering the list in line with the proposal request

The VO can alter the list in accordance with the proposal to which the appeal relates, in this case the VO must notify the VTW and the appeal is then treated as withdrawn on the date on which the notice is served on the VTW (Reg 36(3)).

3.3 Disposal without a hearing (Agreeing the Appeal)

After an appeal has been made the parties may reach agreement regarding the case outside of the proceedings and they can request that the VTW dispose of the appeal without a hearing. In this case the clerk will send notice to all parties stating that the tribunal is minded to dispose of the appeal without a hearing, stating the decision the tribunal is minded to make and that any party can object to the appeal being disposed of without a hearing. Following the issue of this notice, any party can make a request in writing that the appeal be disposed of with a hearing.

The valuation tribunal must not dispose of an appeal without a hearing if—

(a) in the opinion of the clerk, the appeal raises issues of public importance that require that a hearing be held,

(b) a period of 28 days from which the notice under paragraph (1)(b) was sent has not elapsed, or

(c) a party to the appeal has requested a hearing.

If a consent order is being sought for an agreement, if the hereditament has been vacated at the time of the appeal, then the agreement of the landlord (as ratepayer) will be needed in addition to the maker of the proposal.

Regulation 2(3) (Appeal Regs) states that a party to an appeal includes the proposer and everyone whose signature is required under Regulation 22 and this includes the ratepayer at the date of the agreement in relation to the hereditament.

3.4 Other Orders (including End-dating MCCs)

Under Reg 52(1) the VTW can issue an order for the VO to alter the list in accordance with any provision under the LGFA 1988.  This means that the VT may increase an assessment greater than that already shown in the Rating List or proposed by the Appellant. The Effective Date would be limited to the date of the VT decision.

In the case of MCC appeals, where at the date of the hearing the circumstances giving rise to the alteration have ceased the VTW can order the VO to alter the list for the duration of those circumstances only, i.e. they can specify the end date of any allowance. However, the VTW cannot determine  the rateable value applicable at the end of the allowance period or otherwise correct an assessment (Reg 52(5)).

For application of Reg 52(5), Avison Young Ltd v Jackson (Valuation Officer) [2021] EWCA Civ 969 (01 July 2021) (bailii.org)

4.0 VT Hearing

See Section 7 of the rating manual for VTW procedures at the actual hearing.

If there are multiple appeals outstanding on a hereditament then the appeals should be heard in the order in which they would have effect. (Reg 35(2))