Summary: Mr X complains about the way the Council advised him about a planning application and liability for Council Tax at his mother’s property and the annexe occupied by Mr X causing him to pay excessive Council Tax. The Ombudsman has found no evidence of fault in the way the Council considered these matters.

The complaint

1. The complainant whom I shall refer to as Mr X complains about the way the Council has dealt with the Council Tax account for the property owned by his mother, Mrs Y. And for the Council Tax account for an annexe built next to Mrs Y’s property for Mr and Mrs X to live in to care for her.
2. Mr X says the Council has given him conflicting advice about its planning use. And it says the annexe is part of the main building and so he cannot use it separately or rent it out. But he has been advised under Council Tax it is two separate properties and been billed accordingly. Mr X says after Mrs Y died the Council charged him extra Council Tax for the property, so he had to sell the property.
3. Mr X says the Council has now said he does not owe so much Council Tax, so it has misled him over his Council Tax liability. And he may not have needed to sell the property.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended). The Valuation Tribunal deals with appeals against decisions on council tax liability and council tax support or reduction.
7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I have read the papers submitted by Mr X and spoken to him about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Mr X and the Council and considered the comments received.

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What I found

9. Mrs Y applied for planning permission to extend her property in 2009 to allow her family to move in and support her. The planning officer in his report said he was ‘satisfied there was no real potential for the use of the annex as a separate independent unit of accommodation. The internal arrangements are that the main facilities – kitchen and family bathroom will remain shared with the main house.’ So, the Council understood from the application the annexe would only be an extension to the house.
10. The Council granted planning permission. It imposed a condition needing the use of the annexe to be ancillary to the main house and not separately occupied.
11. Building works on the annexe ended in January 2011, so a Council Tax Inspector visited the property for the Valuation Office Agency (VOA) to assess it for re-banding. The VOA gives the government the valuations and property advice needed to support taxation and benefits. Councils issue Council Tax bills for properties based on the valuations set by the VOA.
12. The Council Tax Inspector found the extension (annexe) where Mr and Mrs X lived was self-contained with a kitchen, diner, lounge, two bedrooms and a bathroom. The Inspector told Mr X the VOA was likely to consider it two separate homes. The Council noted Mr X was unhappy with the advice. The VOA listed the buildings as two separate residential dwellings. The Council created two separate Council Tax entries for the buildings and issued a Council Tax bill to Mrs Y at the main house and Mr and Mrs X at the annexe.
13. The Council started planning enforcement action against Mrs Y in November 2012 and issued a Planning Contravention Notice. The Council said they needed to end the use of the annexe as a separate dwelling. And it should only be occupied according to the planning permission. The Council said Mrs Y and Mr X could apply for planning permission so both could be occupied as separate houses, but they would need to resolve a parking issue at the site first.
14. Mr X responded they were not using the annexe separately and Mrs X was acting as Mrs Y’s full-time carer. The Council decided not to take any further enforcement action due to the circumstances and closed the case.
15. Mr X contacted the Council in October 2015 about removing the restriction on not using the annexe as a separate dwelling. The Council advised he needed to submit a planning application. It said it was likely to refuse any application, but Mr X would have the opportunity to appeal against the decision if it did so. Mr X said he had been paying Council Tax on the annexe as a self-contained unit. But Planning said it must be used as one dwelling with Council Tax saying it was two. Mr X said he was confused about the whole issue and accepted he may have breached the planning permission.
16. In March 2017 Mr X applied for a 50% Council Tax discount for the annexe backdated to April 2012 due to Mrs Y’s health. The Council granted the discount and gave Mr X a refund. In April 2018 the direct debit for Mrs Y’s Council Tax payment was cancelled saying the payee had deceased. The Council sent Mr X a probate form for information in May 2018. Mr X did not provide a date of Mrs Y’s death, so the Council took it from the date of cancelling the direct debit.
17. The Council found Land Registry documents listing Mr and Mrs X as the owner of Mrs Y’s property. So, cancelled the annexe discount due to the death of Mrs Y. The Council issued revised bills to Mr X. Mr X complained to his MP about the full liability for Council Tax he was being asked to pay for the main building and the annexe. The MP complained to the Council on Mr X’s behalf and asked how he could reduce the amount.
18. A Council Tax Inspector visited the property to check whether Mr X and family were living in the main house or the annexe. If Mr X had moved into the main house from the annexe the Council could apply an exemption to the annexe. The Council says the reverse does not apply under Council Tax law.
19. The Council wrote to the MP confirming Mr and Mrs X lived in the annexe. So, the Council could not apply an exemption to the unoccupied and unfurnished main house. It cancelled the 50% discount applied to the annexe and allowed a one-month discount on the main dwelling for a month after Mrs Y’s death.
20. The Council said Mr and Mrs X’s decision to stay in the annexe impacted on their liability. If they lived in the main building and kept the annexe unoccupied it would be awarded a Council Tax exemption. Although there would be a higher Council Tax charge on the main building their overall liability would be less. The Council suggested Mr X contact Planning to confirm if there was a planning restriction on the main property to see if able to let it out.
21. The MP said Mr X felt he had been badly advised by the Council. This was due to having to pay Council Tax on the main building since Mrs Y died and he could not rent it out. Mr X considered it unfair he had to pay extra Council Tax. So, had sold the property to avoid escalating charges. The Council responded the planning permission in 2009 required the use of the extension as ancillary to the main building and not as separate accommodation. Mr X had enquired about the possibility of removing the restriction in 2015. Planning officers would not have given him any advice about Council Tax as it operated separately from planning. The Council said it was for Mr X to have confirmed whether creating the annexe as a separate unit carried any further Council Tax implications.
22. The Council said it was the VOA who decided there were two separate dwellings. The Council asked the VOA whether it would consider combining the two dwellings. But the VOA said the two needed to remain separate assessments for Council Tax while the annexe continued to be a self-contained unit. The Council advised the MP of this in December 2018. As it learnt Mr X left the property in September 2018 the Council said it could apply an exemption to the annexe as unoccupied. This reduced the amount of Council Tax owed. Mr X subsequently sold the property. The Council advised Mr X had appeal rights to the VOA about his liability for Council Tax.

The Council’s comments on the complaint

23. The Council says its officers have not given conflicting information to Mr X. It says Mr X contravened the planning permission granted in 2009. If Mr X and Mrs Y built the extension according to the planning permission, then the VOA would not have assessed there the annexe as a separate dwelling. The Council confirmed the VOA was an independent body and it must implement its determinations about dwellings for Council Tax liability. The Council says under Council Tax law the ‘extension’ was in fact a separate dwelling and so had to be assessed separately.
24. The Council says officers would not have advised Mr X of this before the works to build the annexe started because the Council had not agreed it could be a separate dwelling.
25. The Council confirms officers advised Mr X in December 2018 of his right to appeal to the Valuation Tribunal about his liability for Council Tax for the property and annexe. However, it is usual for there to be a three-month time limit which has now passed. The Tribunal has discretion to consider a late appeal if there are good reason for the delay. So, Mr X will need to seek advice from the Valuation Tribunal to submit a late appeal.

My assessment

26. The documents I have seen show the issue with the planning permission and Council Tax liability arose when the planning permission was contravened by Mr X in 2009 creating the annexe as a self-contained unit. As such it was for Mr X to ensure what the implications of doing so would be either in terms of planning or Council Tax liability.
27. The documents show Mr X was aware in 2011 that the VOA regarded the main house and annexe as two separate dwellings for Council Tax purposes as he received two Council Tax bills. As Mr X was aware of the issues in 2011 it was open to him to complain about the matter then. I consider it is too long ago for the Ombudsman to exercise discretion to consider the issues now about what happened in 2009 and 2011. This is because Mr X could have raised any concerns he had at the time. In addition, I consider it reasonable to expect Mr X to have exercised his right of appeal to the Valuation Tribunal if he disagreed with his liability for Council Tax. And about the decision to separate the two dwellings for Council Tax purposes.
28. The documents also show Mr X raised the issue of removing the planning restriction on not using the annexe as a separate dwelling in 2015. Mr X said he was aware he was being charged Council Tax on both properties and was confused about the planning permission and Council Tax liability. So again, it was open to Mr X to complain to the Ombudsman then if he was unhappy with any decisions or action taken by the Council. It was also open to him to submit a planning application as he discussed with the Council to remove the restriction. Or to exercise his right to appeal to the Valuation Tribunal about his Council Tax liability.
29. From the documents I have seen I have found no evidence to show the Council gave Mr X conflicting information about the planning use of the annexe or its liability for Council Tax purposes. Mr X did not build the annexe according to the plans submitted and approved by the Council. So, I do not consider there has been any fault by the Council. Planning legislation and Council Tax laws are separate. The documents show Mr X was aware that the main house and annexe were not to be used separately under the planning permission. He was also aware the two dwellings had been given two separate Council Tax assessments as he had been receiving two bills since 2011.
30. The documents show Mr X chose to move and sell the property without properly informing the Council and establishing a final liability for Council Tax payments. And whether any further exemptions for Council Tax applied. It is unfortunate Mr X decided to sell the property due to changes in his Council Tax charges, but I cannot say it was due to any fault by the Council.

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Final decision

31. I am completing my investigation. I have found no evidence of fault by the Council in the way it dealt with Mr X’s Council tax accounts. In addition, the issues Mr X raises about a planning permission happened too long ago for the Ombudsman to investigate now. And Mr X can exercise his appeal rights to the Valuation Tribunal about his liability for Council Tax.

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Investigator's decision on behalf of the Ombudsman