Summary: The Ombudsman will not investigate this complaint about the Council’s decision not to apply an exemption to the empty homes levy. This is because the complaint is out of our jurisdiction. We cannot consider complaints relating to council tax setting.

The complaint

1. The Council has charged the complainant, who I refer to here as Mr X, a levy called the empty homes premium on a property that he was marketing for sale. Mr X complains that the Council’s decision not to exempt properties for sale from the levy was not properly made or was not made at all, and that the levy should not apply to his property.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered information provided by Mr X and the Council. I also considered comments from Mr X on the draft decision.

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What I found

Council tax – empty homes premium

4. Following a change in the law the Council decided, in 2012, to charge a council tax premium on properties that had been empty and unfurnished for two years. The charge, known as the empty homes premium (EHP) applied from April 2013. Following another change in the law in 2018 the Council decided, in January 2018, to increase the levy. Following each change in the law the Government issued guidance advising that the EHP should not be applied to properties on the market for sale.

What happened

5. In April 2019 Mr X requested an EHP exemption on the basis his property was being marketed for sale. The Council told him it made a policy decision not to follow the Government guidance of 2013 and 2018 and that under this policy properties for sale were not exempt from the EHP.
6. Mr X feels he was given false information by the Council. He is not satisfied that the government guidance was ever considered; nor is he satisfied that any policy decision to ignore the guidance was ever taken.
7. He says it is not open to him to judicially review a decision that was not taken.
8. He believes that if the guidance was considered, but ignored, this amounts to an abuse of authority by the Council.

Assessment

9. Decisions around the EHP are made under the Council’s council tax setting powers. Under Section 66(2) of the Local Government Act 1992 (as amended), decisions on council tax setting can only be challenged by a judicial review in the High Court.
10. Mr X’s assertion that the government guidance was not followed would form part of a challenge to the setting of the council tax.
11. The Ombudsman has no authority to tell the Council to reconsider its council tax setting. This can only be challenged by way of a judicial review of the council tax setting.

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Final decision

12. I will not investigate this complaint as I do not have jurisdiction to do so. This is because decisions on council tax setting can only be challenged in the High Court.

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Investigator's decision on behalf of the Ombudsman