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Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment) Regulations 2018

Volume 788: debated on Thursday 1 February 2018

Motion to Approve

Moved by

My Lords, the Government are committed to delivering a fair and effective appeals system for business rates that provides an efficient means for ratepayers to challenge the valuation of non-domestic properties. That is why in April 2017 the Government introduced significant reforms to the appeals system, through the new “check, challenge, appeal” framework that is being delivered by the Valuation Office Agency and Valuation Tribunal for England. I hope that noble Lords agree that the system in place before April 2017 was clearly in need of reform.

Penalties for the provision of false information, which are the subject of the regulations we consider today, are an important part of these overall reforms. They will act as an important deterrent to providing false information that will help to maintain the integrity of the appeals process and the wider business rates system. Under the “check, challenge, appeal” framework, ratepayers are required to provide information to the valuation officer. This is both at the check stage when the underlying facts are confirmed and agreed, and throughout the challenge stage with the exchange of more detailed evidence. In line with other parts of the tax system, penalties will be an important mechanism to support the submission of accurate information. Specifically, the regulations will, if approved and made, provide the Valuation Office Agency with the power to impose a penalty on a person who provides false information knowingly, recklessly or carelessly.

The regulations specify the level of the penalty, which will be set at £200 for small businesses and £500 for all others. It may be helpful to remind noble Lords that the £500 maximum penalty reflects the level that was specified in the Enterprise Act 2016, which provided the enabling powers for penalties in the business rate appeals system.

The Government recognise that there may be cases where a person wishes to challenge the imposition of a penalty. The regulations therefore also provide a right of appeal. Any person who is subject to a penalty may, within 28 days of receiving a penalty notice, appeal to the independent Valuation Tribunal for England. Where the tribunal finds in favour of the appellant they will then be able to order the valuation officer to remit the penalty in full. Clearly, it is important that there is no financial incentive for the valuation officer to impose a penalty. The regulations therefore also require that any sum received by the Valuation Office Agency by way of a penalty must be paid into the Government’s Consolidated Fund. This will ensure that the Valuation Office Agency does not benefit financially from the imposition of penalties.

As part of the wider consultation on draft regulations for the new appeals system, the Government sought views on the proposed approach on penalties. The consultation received over 280 submissions, and the Government’s response was published in March 2017. As set out in the government response, there was clear support for the introduction of penalties from local government. Many businesses also accepted the need for a penalties framework, but expressed concern that penalties could be imposed where ratepayers have made a genuine mistake. Some respondents suggested that the level of penalties should be linked to rateable value, to ensure that they are an effective deterrent for large businesses.

In light of the concerns raised, the government response confirmed that the Valuation Office Agency would provide clear guidance to support ratepayers with the provision of information and on the application of penalties. Where ratepayers feel that a penalty has been unfairly imposed, as I have already outlined, they will have a right to appeal to the independent valuation tribunal. While these are important provisions to support a fair system, the consultation also confirmed the Government’s clear view that ratepayers have a duty to take reasonable care in providing information on their tax affairs.

Noble Lords will no doubt be aware that the wider reform to the appeals system is not without its critics and that the concerns of some noble Lords were discussed at length on a Motion to Regret late last year. Given that discussion, I do not propose to revisit those concerns in detail today. Suffice it to say the Government remain clearly of the view that the reforms were an important and necessary step to fixing what was clearly a flawed and inefficient system for all involved. I reiterate that we expect the Valuation Office Agency to continue to work closely with ratepayers to ensure that the system is meeting our objective of a more efficient and effective system.

For the purposes of today’s debate and the specific regulations at hand, I hope that noble Lords agree that it is entirely right that the system is supported by appropriate powers to penalise the provision of false information, and that these are accompanied by appropriate safeguards, such as the right of appeal, to ensure the system operates fairly and effectively. I commend these regulations to the House.

My Lords, I first declare a professional interest as a property consultant and a member of bodies concerned with business rates, as a vice-president of the LGA and, from time to time, as a non-domestic ratepayer. It will be no surprise, and I am sure that the Minister will understand, that I am coming at this somewhat from the ratepayer standpoint.

My concerns are with the penalty for inaccurate information under new Regulations 9A to 9D. I entirely accept what the Minister has said: the system needed a thorough going over. But I have a question surrounding the terminology of “knowingly, recklessly or carelessly” providing false information in new Regulation 9A(2)(b).

Penalising deliberately providing misleading information is absolutely fine in principle. I make no observation about the quantum of the fine either or, for the most part, the mechanisms for imposing it and appealing it. But if the process of “check, challenge, appeal”, as I perceive it, involves systemic complexity and a requirement for information from a ratepayer that they are unlikely to possess and probably cannot verify, the risks of infraction become unreasonably high. It is the working environment rather than purely the penalties that I will concentrate on.

We know that the intention is to discourage false information and that there was a problem about that in the past. All too often, it was perpetrated by so-called business rates consultants, who were, sadly, on a number of occasions, proven to be neither professional nor honest. But rather than tackle them—they were known firms and bodies—it seems to have been decided to scapegoat by design every appellant ratepayer. I do not accept that approach.

Noble Lords will also be aware that new arrangements for “check, challenge, appeal” mean that most of the proposals to alter entries in the rating list must be made via a government portal. That requires an individually named person to register by giving a lot of personal information. For example, for an SPV that has no employees and no land with buildings for development, that is clearly unworkable. I am also told that a number of local authorities are finding this difficult as well. If you do not have a UK passport or UK national insurance number it has to be done manually. If you register but then forget your password, I understand that there is no reset provision. If you have multiple properties, each must be individually linked to the person registering and the details re-entered for each one. If you appoint an agent, he or she has to go through this again once they have received a formal notification through the system that they have been appointed. Annoyingly, if as sometimes happens the agent does not get the notification, I am told that the only advice the Valuation Office Agency was able to give was that the ratepayer should deregister. In other words, they must reverse the entire process and re-enter the whole lot de novo. That cannot be right.

Once the registration has been done, the check stage comes in. As the Minister has said, that is the point at which a lot of information needs to be put in about the property. Some of the requirements are a little opaque, shall I say, such as how many floors the property has. Apparently one can select from minus nine to plus 55, which is mathematically slightly Quixotic but also happens to rule out the Shard. One may also be asked about the eaves height, for which the Shard would also be a non-qualifier. At other times people have been required to provide a net internal floor area for a property customarily measured and valued on the basis of gross externals. This is beginning to look a little problematic for the ratepayer. One may then be asked when the last refurbishment took place; as if the tenant would necessarily know that. The choices go back in tranches as far as 1900 on the online system. There is also a rather risible suggestion that the lease details or the local planning office might have information on refurbishment. In any case, a refurbishment undertaken 30 years ago is likely to be totally worthless in modern valuation terms.

I do not wish to poke too much fun because actually this is a very serious business. Let us remember that in the middle of all this there is a ratepayer trying to fill in an online form for which there is a potential liability for inaccuracies. The point I want to make is that the architecture is deficient and the system makes unnecessary and time-wasting demands on ratepayers as well as putting in place tripwires that really should not be there.

I note the answer given by the Financial Secretary to the Treasury to the Delegated Legislation Committee in the House of Commons on 29 January in answer to the honourable Member for Oxford East concerning rating appeals:

“The technical problems we have had with the system some months ago have largely been resolved”.—[Official Report, Commons, First Delegated Legislation Committee, 29/1/18; col. 6.]

That is not quite the message I am getting through the trade, if I may term it thus. In reality, although the digital platform may have improved, the environment in which it operates has not.

My concerns are the lack of clarity or definition over what will constitute a culpable error. I noted the noble Lord’s comment that guidance was to be provided. I am not aware that guidance has been provided, but I am aware that rating professionals have been asking the VOA whether it will produce anything to clarify the circumstances that constitute a culpable error, but I have been told that it does not propose to do so. This seems a rather one-sided situation, and the decision to impose penalties seems to be in the hands of a party to the matter even though they do not benefit financially. The process is a touch inequitable and asymmetric as a way of dealing with public administration.

I want to ask the Minister what proposals there might be to address some of these continuing problems, in particular the absence of a proper definition and guidance. By “guidance” I do not mean some general comment into which one can read anything, but how this will be dealt with and how individual business ratepayers will be protected from an honest error, because it is not clear how that will be done. In particular, I want to know what further steps the Minister feels could be taken to establish greater confidence among business ratepayers about the CCA system, because it seems to be still distinctly lacking.

My Lords, the noble Earl, Lord Lytton, has just made a forensic dissection of the process of business rate valuations and appeals, and I could not possibly add to that detail. However, I have some general points to share with noble Lords. I draw attention to my registered interests as a vice-president of the Local Government Association and an elected councillor in the borough of Kirklees.

It is totally acceptable for the Government to require accurate information for any appeal against business rates, but as the noble Earl, Lord Lytton, has drawn attention to, I am concerned about the use of the word “carelessly” in the regulations. What is the definition of the word and how will it be judged? I understand the use of “recklessly” and “knowingly”, but “carelessly” is not a word that is best used in regulations because I wonder how it will be defined.

The penalties being proposed seem to be appropriate and in line with penalties elsewhere in the system. However, the Government have a responsibility to review their actions in regard to the need to adhere to the timetable for rate reviews so that businesses are not subject to massive increases, as has happened with the latest review which was delayed by two years. It is totally unfair on businesses if the timetable is not kept up with and suddenly they find themselves facing significant increases in business rates.

Secondly, the Government must reconsider their approach to business rates. Ministers have rightly emphasised the importance of vibrant town centres, along with the changing nature of those centres, especially in smaller towns and villages where small businesses are likely to be paying a far greater proportion of their business income in rates than out-of-town concerns operating via online trade. This must be addressed in order to devise a more equitable business rate scheme between businesses serving their communities and gigantic out-of-town warehouses. I look forward to some positive news from the Minister on that score. It is not the first time that I have raised this issue and I shall keep on doing so until we make some progress.

My third point is to ask the Minister to explain the part that local authorities will play in this new regime. As he is aware, currently local authorities collect business rates and provide within their budgets for successful appeals via a grant from central government. The grant may or may not be sufficient to cover those appeals. From the local authority’s perspective, the existing regime for providing for successful appeals is not the most efficient that could be devised. Will the Minister consider producing a more effective and efficient regime that would suit businesses, the Valuation Office Agency and local authorities—and indeed the Government? All the money that is set aside for appeals is nominally from central government and in theory could be used more effectively in the provision of local services.

In general the approach is fair, but I look forward to the Minister’s responses to my questions.

I have two very small questions. The first concerns the Explanatory Memorandum. Point 3.2 states:

“This entire instrument applies only to England”.

However, point 5.1 states:

“The extent of this instrument is England and Wales”.

Have I misunderstood the headings or is that a typo?

My question on guidance follows from the questions of the noble Earl, Lord Lytton, and concerns Paragraph 9.1. I would be grateful for some clarification. It states:

“The Department does not intend to issue formal guidance”.

That is fair enough, if it does not want to, but how will the department satisfy itself that the system is working? Will there be consultation with the VOA or will there be other mechanisms in the absence of formal guidance? It goes on:

“The VOA may issue internal guidance to their staff, in relation to the reforms to the business rates appeals system. As above”—

I am not quite sure what the phrase “as above” applies to—

“the VOA intends to provide specific guidance on the provision of information by ratepayers, and internal guidance on the application of penalties”.

I find that all a bit confusing, to be honest. Which is going to be transparent and available to the public, which is going to be an internal office one? I would be grateful for some clarification.

My Lords, as we have heard, the regulations before your Lordships’ House this afternoon provide for the imposition of financial penalties for giving false information in respect of a proposal and also provide for an appeal against the imposition or the amount of a financial penalty. I am happy to support these proposals, and in doing so draw the attention of the House to my relevant interests in the register, namely being a councillor in the London Borough of Lewisham and a vice-president of the Local Government Association.

Many years ago, in the 1980s, I was a member of a rating appeals tribunal and I agree with the Explanatory Notes, which state in paragraph 7.3 that little supporting evidence was supplied, what came in came in late, and most appeals,

“did not result in either an appeal hearing or a change to the rating list”.

That was what used to go on in the appeals I used to attend—it was certainly my experience serving on a tribunal in London. Looking at the papers there seem to be only two levels of fine. I thought that the purpose of any fine is to provide an element of deterrent. I am not convinced that these levels actually do that: perhaps a sliding scale would have been better, or some link to a rateable value, as I think the noble Lord, Lord Bourne, made reference to. I do not think that any large corporation will be the least bit worried about a £500 fine.

Paragraphs 8.1 and 8.5 of the Explanatory Notes refer to the number of responses to various consultations. Will the noble Lord give the House some more information about the range of responses received, as the notes have only such phrases as “the majority of respondents recognised”, and “many businesses accepted”. A bit more clarity would be useful for us to understand the range of responses that the department actually received. I accept the point, as set out in paragraph 8.6, that,

“in line with other parts of the tax system, ratepayers have a responsibility to take reasonable care when providing information in relation to their tax affairs”,

but coming back to my earlier point, I am not sure a £500 fine helps in any way to focus the mind of a large company or corporation in that respect. I am sure that all companies do these things properly, but if one were to decide that it could gain some advantage by not doing so, it might risk taking a punt. The worst it could get would be a £500 fine but if it got away with it, it might gain many thousands of pounds in a reduced business rate bill. Will the noble Lord address that?

I assume, since there is nothing about it in the papers, that there is no link to inflation, so these figures will wither on the vine, as it were, until the regulations are brought back here in a few years to be uprated. So I am not convinced that the sanctions are strong enough. Having said that, I support them in principle and I look forward to the noble Lord’s response.

My Lords, I endorse what other noble Lords have said, particularly my noble friend on the Front Bench. I do not dissent from anything that has been said—I certainly endorse his views about the frankly ridiculously low levels of penalty for failing to comply with the requirements, given the amount of rates that will necessarily be involved in so many cases. My question is about the system more generally. There is well known to be a huge backlog of appeals across the country. That is difficult for local councils to manage because dealing with these issues requires expenditure in its own terms. What are the Government doing to speed up the process of dealing with appeals? Will they make resources available to local authorities to do that? It is an injustice to the local community if these decisions are delayed and is actually not very good for businesses anyway, because they ought to be clear what the position is. Yet for many years delays have taken place and proceedings are very costly.

I ought to remind the House of my local government interests, as a local authority member and, like several Members of this House, an honorary vice-president of the Local Government Association.

My Lords, I thank noble Lords who have participated in the debate on these Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment) Regulations 2018. I turn first to the noble Earl and thank him very much. We engaged on an earlier set of these regulations, on the “check, challenge, appeal” procedure. Picking up a point just touched upon by the noble Lord, Lord Beecham, the reason for that procedure was mainly to deal with the backlog of appeals, which, the noble Lord will know, was growing. I thank noble Lords for their general support for that procedure: it was felt that reform was greatly needed.

The noble Earl made two specific points. I know that he has requested a meeting with the Minister in the Commons. The Minister has indicated that he is very happy to talk further about some of these issues with the noble Earl but in the meantime I will deal with a couple of the specifics he raised. First, on the registration and verification process, which, as he said, appears in many regards to be unnecessarily wieldy, the Valuation Office Agency is working with businesses and agents to review the registration process to see what might be done to minimise any burden. I am very happy to write to the Valuation Office Agency again to ensure that that is being done—the noble Earl highlighted some areas where it clearly could be done.

The noble Earl secondly touched upon the issue of guidelines in relation to penalties and procedures: the noble Baroness, Lady Donaghy, also dealt with this. Some guidance is touched upon in paragraph 9.1 of the Explanatory Memorandum, as the noble Baroness said. I can confirm that the guidelines are being worked upon by the Valuation Office Agency, and I have ensured, in discussion with the Valuation Office Agency, that these guidelines will be issued ahead of any penalties being levied. They will be available and I will make sure that they are circulated to noble Lords who have participated in this debate and a copy is placed in the Library; that seems entirely reasonable.

The noble Earl and other noble Lords raised the definition of carelessness. This is a well-established definition in law. I refer noble Lords to many taxing statutes and other regulations where carelessness is defined. It is also true, although in fairness the issue was not raised, in relation to “knowingly” and “recklessly”. “Carelessness” would obviously require a much lower standard of proof than would be required for “knowingly” or “recklessly”, but it is a well-established principle in law.

Turning to the noble Baroness, Lady Pinnock, I recognise that she understandably always uses such an opportunity to canter round the whole area of business rates, rather than the specifics. I think I have dealt with the specifics she raised on the regulations—the issue of carelessness, for example. But she also raised a matter that she will know we are looking at: the business rates process more broadly, in relation to out-of-town premises and warehouses. I have indicated that in the spring, we will be part of an international process looking at this issue. I think noble Lords from all parts of the House recognise that it is an issue but it is of course much broader than these very specific and focused regulations. As I say, we are looking at that process in the international context in the spring, and more widely later.

The noble Baroness, Lady Donaghy, raised a specific and fair issue, which I checked myself because I, too, noticed that the regulations are specific about being England-only but that there is also a reference to England and Wales. I am told that it is only technical because the mothership of the main legislation is for England and Wales but these regulations will be specifically England-only, and no wider than that.

The noble Lord, Lord Kennedy, also raised a valid point, particularly in the light of the £50 million or £250 million we just saw in relation to the previous set of regulations. The rather low level of the deterrent here was partly as a result of the consultation, but the point is well made and we will certainly keep it under review. We will look at it to make sure that it is acting as a deterrent. In relation to carelessness, it would perhaps not seem inappropriate but in relation to “knowingly”, we would want to make sure over time that it was appropriate. He referred to inflation not being taken account of here. I say two things to him: first, as he will be well aware, the level of inflation is rather low—I know he is supportive of that—but, secondly, it is general that there is no inflation element built into fines. The point is well made and perhaps when we review this, it may also need to be looked at.

I accept that inflation is low, which is good news for everybody, but I made that point because these charges are potentially very small. I think the cost of a parking ticket in London is about £120, just for parking in the wrong place. This provides for a £500 fine for a corporation that may, recklessly or knowingly, put in a submission and benefit by many thousands of pounds. I am glad that the Minister will look at it again; that is needed because that level is totally inadequate.

My Lords, I undertook to keep it under review rather than to look at it again, which is perhaps slightly different, but I thank the noble Lord for his intervention. The point is well made: parking meters are making a lot more money than a lot of individuals on an hourly or daily basis. We are aware of that.

If I may come back to the noble Baroness, Lady Pinnock, I missed the point she raised about the business rate revaluation. As she will know, at Budget 2017 the Government committed to increase the frequency of revaluation to every five years from the next revaluation, which is due in 2022. However, I understand her point.

Perhaps I could also mention at this juncture that we are looking to local authorities, which have the funds because we have made them available, to ensure that they pay out to public houses, where appropriate, and to businesses that secure a revaluation the money that is rightly theirs. I encourage local authorities to do that. The Government have got the money out of the door and are really looking to local authorities to ensure that they carry that forward.

I think I have dealt with the point about the backlog raised by the noble Lord, Lord Beecham. He also quite rightly made a point about the low penalty, which I have picked up, but if I have missed any points I will write to noble Lords. There were some particularly valid points from the noble Earl, Lord Lytton. I thank him for declaring his interest but that also means he is very expert in this field, which I am happy to acknowledge. With that, I commend these regulations to the House.

Motion agreed.