Summary: Mr X complained that information the Council published about a Council tax premium lacked clarity. He said this caused him an injustice because it disrupted his financial planning and because dealing with the dispute caused him distress. The Council accepts the information on its website was unclear. That is fault. It has already partially remedied this by amending its website. In my view it is unlikely Mr X would have avoided the charge even if it had been clearer. But Mr X was inconvenienced by the Council’s unclear guidance and the Council’s approach to Mr X’s complaint was at fault. We have recommended a payment to acknowledge this.

The complaint

1. Mr X complains that the Council’s website published misleading information about how it charged a long-term premium Council tax, (“the Premium”).
2. Mr X says he was advised to take his complaint to the Valuation Tribunal (“the Tribunal”) but it did not have jurisdiction to deal with the issue he raised. He is aggrieved at the way the Council responded to his complaint.
3. Mr X considers he was caused an injustice because he says he would not have had to pay the charge if he had known when it would be triggered, and he was put to the inconvenience of disputing the case with the Council.

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The Ombudsman’s role and powers

4. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I spoke with Mr X and read his complaint file.
8. I made enquiries with the Council and reviewed the relevant law and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. Both Mr X and the Council took issue with certain aspects of the decision. I considered their comments before making a final decision.

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What I found

Relevant Law

10. The law is not in dispute in this case so I will only summarise briefly.
11. Since 2013, local authorities have been able to charge a premium of up to 50% on properties that have been unoccupied and substantially unfurnished for two years or more. (The law has since changed again but that is not relevant here.) The Premium is in addition to the usual council tax charge that applies to the property. The Premium applies depending on how long the property has been empty, irrespective of the owner.
12. The Government left it to local councils to design their own ways of applying the Premium in their local area. They were able to determine the circumstances in which it would be charged and the level at which it would be set.

Relevant Council guidance

13. In 2016 a Council committee agreed, among other things that:

• It would charge a 50% long term premium on properties that had been unoccupied and unfurnished for at least two years.
• The committee minutes noted that the Government had issued guidance to councils which stated that the intention of the Premium was not to penalize owners that were on the market for sale or rent. It was noted that there could be grounds for exemption from the Premium. It was decided that this power should be given to the Revenues Team Leader.

What happened

14. The below account does not include everything that happened. I have focused on the facts relevant to key issues.
15. In April 2017 Mr X informed the Council that a property owned by him was uninhabited.
16. The property remained uninhabitable until October 2019, for a period of two and a half years. During that period Mr X worked on the property, preparing it as a house for his retirement.
17. Before the end of that period, the Council charged Mr X the Premium, backdating it to April 2019, which was the two-year anniversary of when the property first became unoccupied.
18. Mr X said he did not expect to have to pay the Premium because he followed the guidance on the Council website, which said, among other things, the following:

• A Long-Term Empty Premium will be applied to empty dwellings that have been classed as long term empty continuously for at least two years, and
• A property is classed as Long-Term empty where it has been unoccupied and unfurnished continuously for at least six months.

19. He interpreted the guidance to mean that the two-year period would begin after the point where six months had elapsed.
20. Mr X raised this with the Council. The Council changed the wording on its website to clarify that it would charge the Premium after two years, not two and half years. The Council accepts that the original webpage was “…not entirely clear in the application of the Premium.”
21. Mr X asked for a refund. He said that as a private individual he worked seven days a week on the property so that he could move into it for his retirement. He hoped the Council would apply its discretion.
22. The Council refused. Mr X took his case to the Valuation Tribunal. The Valuation Tribunal said the Council had the legal right to charge the Premium. However, it considered it had no jurisdiction to consider the conduct of the Council or the contents of its guidance.
23. Mr X therefore took his case to the Ombudsman.

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Analysis

24. As has already been established, the Council had the legal right to charge Mr X the Premium. This complaint is about the information provided to Mr X about the Premium and when he could reasonably have expected to be charged.
25. The Council says it has not had any other complaints about the information on the website. But it has accepted its guidance was not clear. That is fault. Mr X understood he would be charged after two and a half years, rather than two. As a result, he received a council tax bill he had not expected. That was an injustice.
26. I have to decide if Mr X’s claimed injustice, that he had not budgeted to pay the Premium, flows from the Council’s fault.
27. I consider that it does. Naturally, since Mr X interpreted the information on the Council’s website in the way he did, he did not budget to pay the Premium until after two and a half years. I accept that he did not expect to be charged. However, that does not automatically mean the Council should have reimbursed Mr X.
28. Mr X considers that the Council could have, when it accepted it had published unclear guidance, used its discretion to waive the charge. The Council says it is “not in a position” to reimburse Mr X because it applied the law correctly. In response to our enquiries, the Council said it had not considered reimbursing Mr X. In response to our draft decision, it said that it had considered reimbursing Mr X but said it was unable to reimburse him because it had applied the law correctly. I continue to consider that the Council did not properly consider Mr X’s claim for reimbursement.
29. The Council has the legal right to charge. That does not mean it has to charge. It should have considered what Mr X said about how the lack of clarity on its website, impacted him. It has a discretion that does not have to be limited to considering waiving the Premium in cases where a service-user is selling or renting a property. That might ordinarily be the case, but the Council should ensure it makes decisions with an eye to all the circumstances involved. I do not consider there is evidence to show it took that approach in this case.
30. Service-users should expect to understand how they are being charged and to understand a council’s clear policy on any charge. They should not be surprised by a charge because of unclear guidance and then, without consideration of the circumstances of a case, be expected to pay it. The Council does not have to stick rigidly to its policy, especially when it provided guidance it accepts was unclear, about how to apply it.
31. Mr X says if he had known the Premium would be applied after only two years, he “…could easily” have finished the work on his property six months earlier. In response to my draft decision he says that he chose a programme of work that allowed him plenty time to do the work and have a stress free life.
32. However, even though Mr X considers he could have completed the work much quicker, on balance, I remain unable to have enough certainty about that. Mr X told the Council he was working seven days a week to get the property finished when he did. On that evidence, I cannot have confidence that Mr X would have been able to complete the project six months quicker. This being the case, even if Mr X had known he would be charged the Premium after two years and not two and a half years, I find that on balance, it is unlikely he would have been able to avoid paying it.
33. That does not mean that Mr X was not caused an injustice. As a result of the Council’s unclear guidance, he was inconvenienced. He had not been prepared to pay the charge. He was surprised by it. He felt he had been misled, even if not deliberately. He took his case to the Valuation Tribunal and he expended considerable time and energy on the case. I have made a recommendation to acknowledge this.

Agreed action

34. Within one month of my final decision, the Council should:

• Pay Mr X the sum of £200 to acknowledge the time and trouble caused by the Council’s unclear guidance.

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Final decision

35. I have found the Council at fault. The Council’s fault caused Mr X an injustice. The Council has agreed to provide a remedy as set out above and I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman