Written and recorded by Rachel Coyle, Barrister, The 36 Group
Hello. My name is Rachel Coyle and stays weapon. Always brought to you in conjunction with data. I'm a bastard. 36 group and I specialize in property, housing and commercial. Today is the webinar about our Gaskin rich with Montana's LeBron Council 2018 Anna Wells High course, of course. That 90 pages not by 1396 Yagman division. Hi. Cool. You may not be familiar with the facts of the case, so I'm just going to run through those briefly with you and then do with principles that trying to slide to, in this case just to bring it together. Will you give us here what this is about? He had managed to Corden's case how, but a person who has a house in multiple occupation our perhaps in Quetta hate my when those worms I hate to my provides a service. The passes off you, Director 2060 oblique wanting three k. C. We got props. It will call this the director and the Provision Off Services Regulations 2009 which brought that director into Okay. I saw in over 2009 oblique to triple nine again rob purposes who called us the regulations in essence, therefore, in this case, the evidence to court held that one was running of a hate mo is a service purposes off Director on the regulations on therefore hatred licenses skilled in part to the how not to report is quote an organization scheme the purposes of the directors regulations. So in this case, Mr Gaskin owned and operated a hatemonger. He was granted a five year hate to my license. In 2009 he applied to vary to 2000 and 13 so he could increase the occupants on in 2014 he applied to renew his license was part of that when your process the local authority requested that he provide one the names and details of the occupy the between two to pay up from the of 17 £1099. It is calculated on the basis that 200 to £7 for each of the seven units of accommodation in the building. However, he was not too happy and Penis bay. He thought that this being was extracted with unlawful. He submitted the application full, didn't provide information and paid 100 £50. He felt that this was a more acceptable big renewals, However, not being beat up. They requested the local authority did not process his application. They also know happen relevant information. Any event they're. Devon proceeded to prosecute him for having operated I hate Tomorrow without the sufficient vices. Another part of 2004. Interception 72. Not happy about this. He applied for judicial review of the decision. That is the decision not know, say, to charge that B but not processes application. The Magistrate's court in the criminal proceedings. We've warmed that his only means of raising matters he could rely on in his defense could only be by way of this judicial review application. He argued that the fee breached requirements off the director, namely Article Burton, to on the Regulations Act Regulation 18 Bull Races. It's lie to you argue that operated hmm constitutes the provision. The service for the purposes of the directive regulations and that will pop to the 2000 for does constitutes been authorization scheme. He tried to point case hemming. It stated that is that wonderful? The authority to have demanded from him on application feel front covering more than just the processing costs. So what is the law behind this? Well, well to the housing up to 2004 made provision for hate to most license by local authorities and by sections 63 sub Section three subsection seven local authority may require license application to be accompanied by a be fixed by local authority. They're not buying central government when fixing that be, though the authority was taken to account costs incurred in carrying out its functions under the under that act at 3 30 before pursuit. Deception 72. If one operates unlicensed herbal Pedro nat'l lighters, this is a criminal panics Now. The regulations previously refer to implemented the directive into domestic law, and it is said that services defined article for one which is quote any self employed economic activity. Normal provided remuneration, as referred to in Article 50 of the treaty Article 57 of the treaty for two that it treaty on the Functioning European Union or Tenderness Talking, which used to be Article 30 of the EEC Treaty so states as follows surfaces shall be considered to be services within the meaning of the treaties, whether on only provided remuneration as far as they are not governed by the provisions relating to Freedom of me God Capital Persons Regulation 18. Subjection for the regulations. It's those implements. Article 13 to off Director provides that quote Any charges provided for by Commons authority, which applicants make her 100 organization scheme must be reasonable and proportionate to the cost of the procedures and for Mass under skiing, I was not exceed the cost of those procedures and formatted. So what was hard in the case of hammering, Let's have it a bit. That's like Fry. This is a case of having tried Johnson keep pressure on Western City Council in 2017. Their funding. The weekly no reports pay for Unit 17 in this case, the CJ you held the Article 13 2 of the directive. Previous dimension must be interpreted us precluding the requirement for the payment of a day at a time or submission application for the Grant renewable rotation, part of which corresponds to the costs related to the management and enforcement field right agents. Key concern Even if that heart is refundable, if the application is refused, the relevant CJ you referenced by the way you want to have a look at this is C Dash three hooting 16 corn fine. And what that decision meant is that the management enforcement costs can only recorded separately after license is granted On. Whether that could be done, though, depends on UK legislation involved, namely part to the House now tells a ball interestingly part to the house, not 1004 does not stipulate a minimum. Waxman it just simply say that he could be charged. The judgment, though inhabitants, seems to suggest that it coming clean subscription renewal that the But this could lead to more medication. Andi is we're in any event required, changed the way local authorities chi Click with these and future July for what may be described as a free period. What WAAS highlighted, though, and raised by the Advocate General without licenses and so on, called by director should Jenny be open ended wrong for a fixed period. In any event, of course, that would conflict with the UK practice. They're relying on the case of coming. I'm making records to it. Mr. Gaskin stated that what he did in terms of having an H m o major problem, it was sort of service, and that it was not reasonable for the costs all the way to be charged to be anything more then just the processing costs. But in this case will commence my six the courts held. It's as a matter of the construction off the direct from regulations. Mr Gaskin Waas Providing a service you're letting imagine. I hate remote for profit. It's kind out, great range of functions in dance I It wasn't just a case of men and that's on the property. He also had the property also advertised it for the purposes of trying to get people into the property. To rent it to your thoughts. Managed it. So the question waas was this. What's this? A self employed economic activity? There's no doubt that he was making some kind of remuneration. It was decided that the word service should they defined broadly. So jets requirement, the activity that is self employed, economic activity nor remuneration is alerted on. The reason for that is that you've decided that use of the word quote any in the definition could only have been intended to ensure that self employed economic activity included the broadest range off services activities, including right into a property become letting it out the 2nd 1 way you're making a profit. We also considered to be consistent well with all the powers. Oh, Director, for example, Recital 27 in response for 27. The construction of service, which is also mirrored Article two Section two j excludes from the directive regulations. Quote social services related social. How they child cats, water, families of persons per meal. Temporary need which are provided by the state. But providers mandated fine state but by charities recognized. I searched by the state, but what the court was trying to draw residence, rum or two or or trying Teoh emphasize here is that the fact that those reference to social housing resigned to 27 indicated that being excluded, it was not a service. Why make reference to it? Yes, it if there was, why might rapids to it, whether it be no need to excluded if it was classed on the server, that fool given article to T J decide to 27. It was decided that given the way doctors have been drafted, it must be the case that even with social housing its provisions or to be covered by a doctor regulation because it also unclear to self reporting activity. It might be that you are providing social housing two individuals and you are yourself an individual book gained some kind of profit. And that's why the cool highlights of the record social housing, because if the provision of houses were not to service and there would be no need to exclude. So the court rejected of the basis for the distinction with hamming the fact that under part 2004 act propped his license rather than the person who rates license application of those, How can it be a service? But the license ranging is not concerned that starting with justices ability very but also management license. Also not transferrable. They terminate on the death of the licence holder. Section 68. We're not done you the house to be proper prepares my arrangements for the property that are required to be satisfied by the local authority before it writes such a nice. In that section 64 3 and also one is charging offense if they don't have a license so that all it was a service. There was no distinction to rate attorney on the racer your clothes. It's just the license ridge. A regime on authorization today, within the meaning of the director and therefore local authorities case was not entirely demand the application of the blown out of 17 £99. So what's the implications work? It's like seven. Well. Local authorities normally do include substantial elements of enforcement raiment activity in their license fees. Decisions just can't make those charges anymore. And in other areas where the Division of Services directive applies, local authorities have made charges in trenches, if easy application on a feather Fiat approval. But the house notched 1004 Part two expressly states Local authority can require applications we could birthday, but it doesn't stay that they contrast applications. So if this is correct, so then there must be two possible outcomes. One. The local authority can charge of the applications, which includes much of an important elements, but they'll have to. Then we fund it to those who have not been granted a licence or secondly, local authorities are simply not able to make any charge respect enforcement in general operation of schemes at all. But that's not good news. Local authorities at the time and budgets already times it might be about this decision would be appealed. I will tell him that. So I don't have that uniform assistance and trying to draw it all together. You transformers. A decision blocking the making to take away from this case is especially your local authority. Do you know include, uh, you see that the people would like to charge well, the enforcement in general operations schemes because it's likely that until this decision is appealed in alternately returned a slight point time we'll distinguish. This is this is that this is the situation now on. The situation now is this is a service I've been provided when you have a Andi being a service and therefore self being a self what economic activity. It therefore means that the fee is indeed or lawful includes more than just a processing off that on is consistent with, um, with elsewhere in the directives, particularly Recital 27 also recital at 33 which refers to father services cause directed, concerned, a wide variety of ever changing activities. I mean, that's brought up in its own right. Um, I'll just word any so therefore the common really, any questions to whether this in service will not. It seems to me a But if his words charge would have some difficulty. So I do hope that have been of some assistance on. And please, do you take a look a violation form and try and kill a tin can on you. Do you have any questions duping latest date Or alternatively, you can contact me through James Webb type with my final address on Also you comply. It was a lesson.
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