delivering justice in a defective system - Gerald Eve

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Practice&Law Delivering justice in a defective system On his retirement as president of the Valuation Tribunal for England, Professor Graham Zellick offers his reflections on his achievements and disappointments in the role. By Jess Harrold. Portraits by Louise Haywood-Schiefer

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“

he rating system is bonkers.” With that, Professor Graham Zellick CBE QC sums up one of the chief problems he faced as president of the Valuation Tribunal for England (“the VTE”). It is a role that only Zellick has held, having overseen the introduction of the VTE in 2009 as a replacement for the old system of valuation tribunals. He is proud of the steps taken in those six years to formalise procedures and improve consistency of decisionmaking, at least in important cases. But his frustration is clear with an area of law in which ratepayers suffer from a lack of information and where the parties to a dispute “don’t talk”. While he strongly denies that these problems have caused a genuine backlog in business rates appeals, he is clearly disappointed that the opportunity has been missed to fold the VTE into the First-tier Tribunal (“the F-tT”), and introduce a professional judiciary to a highly complex area of law, which he believes is unsuited to the lay-panel jurisdiction. Learning on the job Areas of dissatisfaction aside, Zellick has evidently greatly enjoyed his time as president of the VTE, a role he took on following his time as vice-chancellor and president of the University of London and chairman of the Criminal Cases Review Commission – despite, he says, knowing “absolutely nothing” about this area of law. “There are some real problems with rating and council tax – with features of both that are rather deplorable, to put it mildly,” he says. “But I found the legal issues fascinating intellectually and

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practically.” He feels that coming in with a completely fresh eye and “no baggage” was a great advantage, one that helped him in revolutionising the old ways and challenging some of the attitudes that had been in place for years, if not decades. Consistency and justice A key aim from the beginning was to improve the consistency of decisionmaking. He admits that complete consistency is difficult to achieve when dealing with a tribunal with hundreds of members, the majority of whom are not legally qualified. “To some extent, it’s not possible,” he says. “But the area in which it was possible was in the area of difficult cases.” He soon introduced a practice statement to the effect that any case involving a novel or difficult point of law or issue of valuation had to be heard either by the president or one of the vice-presidents, and insisted that, until reversed on appeal, such decisions would be followed and applied by lay panels in the future. “To that extent there would be consistency,” he says. “Previously, in those difficult areas, the tribunals were all over the place. One panel would find one thing; a second panel another thing. That offended me very deeply. That isn’t justice; that’s capriciousness, and it’s intolerable.” It disturbed him at first, particularly in the area of council tax, how local authorities were interpreting legislative provisions “totally differently”, and he expresses the hope that it helped valuation officers, ratings surveyors and local authorities to know that there would be a “consistent answer” from the VTE – one 24 October 2015

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that would prevent similar cases raising the same issues. He describes the old valuation tribunal system as “anarchic” and “the very antithesis of justice”, and makes no apology that, under his watch, the VTE became more technical and formalised, even if he admits it was not universally popular with members. The truth behind the “backlog” Zellick is adamant that claims among the profession of a backlog of rates appeals threatening to overwhelm the VTE are incorrect: “I don’t think there really is a backlog. If you look at the numbers, you might say, ‘Heavens above, there are hundreds of thousands of cases outstanding’. But this is where you have to start looking at the system.” The problem, he explains, is that the ratepayer is never given the full explanation for the valuation. As a result, every time there is a new rating list, ratepayers initiate a challenge – which, after three months, automatically becomes an appeal – partly to protect their position but chiefly to “flush out” more information. “The result is that there are literally hundreds of thousands of appeals in the system, but you have to put the word ‘appeals’ in quotation marks. They’re not real cases.” He says the VTE hears about 1,500 cases a year, and that number never changes. While the others in the system are a burden for the Valuation Tribunal Service (the “VTS”), “clogging up all its processes”, vast numbers of them “simply disappear” as they are settled, withdrawn or struck out. “Is that the fault of the VTS or the VTE?” he asks. “No it isn’t. One of the most frustrating problems anybody in the rating system experiences is that the parties simply will not talk to each other. I don’t know any other field of civil litigation where that is the case. The rating surveyors say the Valuation Office won’t talk to them, and the Valuation Office say that the ratings surveyors are elusive. The truth is that certainly the Valuation Office staff and maybe the surveyors are simply overwhelmed with work.” All too often, cases get settled the day before a hearing, because the parties finally start speaking to each other. Tribunals expecting to hear a full day of cases may be finished in the morning, with the cost of the venue and judicial time wasted. All this points to what he describes as “a defective system” rather than a backlog. This, he says, will remain the case without radical reform: “Unless information is given up front, the system will remain defective and unsatisfactory and unjust. I don’t know any other tax that can be levied where the taxpayer doesn’t understand in full down to the last 88


detail the basis on which the taxman has calculated the tax due. It’s unprecedented, it’s unique and it’s wrong.” His great disappointment Zellick describes as his “profound disappointment” – one which, he confesses, played a part in his decision to retire early from the role at the age of 67 – the fact that the government ultimately decided not to “bite the bullet” and follow through on plans to transfer the VTE into the F-tT. It had been intended that the VTE would form part of the F-tT’s Property Chamber, introduced in 2013, but was left as the odd one out of the tribunals to be folded in. This, he says, was a decision taken not on the basis of any policy change, but because it would have meant that VTS staff would have been transferred into HM Courts and Tribunal Service and become civil servants, leading to pension liabilities becoming crystallised. “There was a £28m or £30m bill attached to that, which no government department wanted to accept,” he explains. “In a period of austerity, there was a stalemate and the transfer was put on hold. It’s a great pity – all these hopes for the future were dashed.” Had it gone ahead, he believes that, over time, the VTE would have become a professional tribunal, as he firmly believes 24 October 2015

it should be. “It really is not a jurisdiction that is suitable for laymen and laywomen, however conscientious, however intelligent and however committed. You need a professional judiciary in this jurisdiction, it’s as simple as that.” He describes this as his “dream, hope and aspiration”, and – with the prospect now seeming far off – he felt that he couldn’t do any more as president of the VTE. But he believes that it has to happen eventually, either for his eventual successor or further in the future. As for the ratings system in general, Zellick prefers not to comment on policy, such as the chancellor’s recent announcement of plans to allow local councils to set business rates or the likely effects of the 2017 revaluation. However, he is hopeful that some changes will soon be made to the system. “There is widespread agreement that the present arrangements are unsatisfactory,” he says. “The government is committed to reform, and that was ongoing when I left. I wasn’t deeply involved, but I had some comments to make on their proposals, and as far as I could make out both ministers and officials are determined to see the system reformed. But how fundamental this will be and whether it will make significant improvements remains to be seen.”