Summary: Mr R complains the Council told him, during a telephone call, not to move into his house at the start of the March 2020 COVID-19 lockdown. And it would not charge him an empty homes premium on his council tax. But it later did make this premium. Due to the lack of documentary evidence, the Ombudsman cannot resolve what was said in the telephone conversation. And there was nothing in the emergency COVID-19 legislation preventing the Council charging the extra premium. So we find no fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr R, complains the Council gave him advice, during a telephone call, at the start of the first pandemic lockdown, not to move into a house he owns in the County. He says the Council advised him it would not start to charge him an increased (empty home premium) rate on the house’s council tax. But it did then charge the extra premium. It did not consider whether it should have used its discretion to not charge this amount, due to the circumstances. He also complains about the Council’s administration of his contacts with the Council after this.

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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’. 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)
3. 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.
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr R;
• made enquiries of the Council and considered its response;
• spoken to Mr R; and
• sent my draft decision to Mr R and the Council and considered their responses.

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What I found

Legal and administrative background

Council tax

6. Council tax is a tax on domestic properties. The tax is chargeable on the property, although some circumstances of owners/occupiers may lead to discounts and premiums.
7. The law around council tax gives councils the discretion to apply a long-term empty home premium on long-term empty properties. From April 2019 the law allowed councils to charge a maximum of 100% on long-term empty properties. From April 2020, the law allowed councils to charge a maximum of a 200% premium on a property that had been unoccupied and substantially unfurnished for more than five years. The premium relates to the property and applies despite any changes in ownership.
8. In December 2019 the Council’s elected members resolved to levy a council tax premium of 200% on properties that had been unoccupied and substantially unfurnished for more than five years, with effect from 1 April 2020.
9. The relevant Act gives a council discretion to apply a discretionary discount on council tax, reducing the charge to nil, if it wishes to do so. A taxpayer can apply to a council for a discretionary discount for any reason. A council’s decision on an application for a discretionary discount is appealable to the Valuation Tribunal. That means it is usually out of the Ombudsman’s jurisdiction under section 26(6)(a) of the 1974 Local Government Act (see paragraph 3).

Coronavirus

10. At the end of March 2020 the government published a Coronavirus Act setting out a range of changes to normal practice across various council service areas. None of these provisions required local authorities to make any changes to their council tax rates or collection.
11. The government did publish (non-binding) guidance which said home buyers and renters should, where possible, delay moving to a new house while measures were in place to fight COVID-19.

What happened

12. Mr R bought a property in the County in mid-2019. It had been empty for over five years and needed extensive refurbishment. The Council says there was at first some confusion about whether Mr R had moved into the property at the time of purchase.
13. By September the Council had confirmed with Mr R and his father that the property was not habitable and needing renovation. The Council amended the council tax account and charged Mr R a 100% premium from the date he took over ownership. The Council says it did not receive any payments, so it sent reminders in November and December.
14. In December 2019 and the first part of 2020 Mr R and the Council were in correspondence about Mr R’s view that levying a 100% premium was unfair. The Council advised Mr R its policy was to operate such a system. So it would charge a premium until the property was occupied. It also advised that, exceptionally, the Valuation Office could remove a derelict property from council tax records.
15. On 16 January 2020, the Council wrote to all taxpayers who owned long-term unoccupied properties, to advise it had decided to increase the premium it charged on such properties to 200% from 1 April (see paragraph 7). It has sent the Ombudsman a copy of its letter to Mr R.
16. Mr R says that in March the property was almost ready for occupation. Around the start of the first COVID-19 national lockdown (24 March) he telephoned the council tax team and an officer advised him he should not move into the property due to the lockdown. And council tax would not make him liable for the 200% charge. The Council says it has searched its council tax records for contact from two the telephone numbers it has on file from Mr R. It has not been able to find a record of the telephone call.
17. On 24 March Mr R emailed the Council attaching a building control certificate and asking for the council tax to remain at 100%. On 7 April Mr R sent a follow up email after he had received his new financial year’s council tax bill, which applied a 200% premium.
18. The Council says it delayed responding to Me R’s email, as the lockdown meant it was an extremely busy time. It responded on 8 April, confirming it would continue to charge the house at the 200% premium. Mr R’s response said (I have quoted this in full):

“To be clear, Shrophshire Council is stating that in order to reduce my Council Tax for this property to 100% I need to leave lockdown in London and travel to the property to take up residence?

I just want you to be totally clear on this point.

The property is finished (pre-April 1st) and has a completion certificate issued (pre April 1st) which you have.

BUT, for you to reduce the Council Tax to its normal rate you are stating I must break government lockdown rules and travel to the property.

I trust if I do this you will have someone that can meet me at the property to confirm I am in residence?”

19. The Council says the first time Mr R mentioned to it the March telephone advice was in a 27 July email he copied the Council into. This noted : “[d]espite being assured on the phone that I would be charged at the normal occupied rate for the house, I’ve received another bill at 200%”. Mr R notes he had mentioned it several times in earlier telephone conversations.
20. After that Mr R and the Council were in contact about Mr R providing photographic evidence that the property was furnished (the Council could not visit due to COVID-19). On receiving this information, the Council decided, from 1 July, to reduce the premium on the property to 100%.
21. The Council and Mr R have sent me records of extensive correspondence about this matter leading to a November email from the Council to Mr R advising:

“I know team members, and myself, when in conversation with customers during the initial lockdown period, were advising customers when it was deemed appropriate that the lockdown restrictions should be adhered to. However, I can’t accept that any member of the team would specifically say that the 200% premium wouldn’t apply to your particular circumstances as they were at the time.”

“Should you feel that your circumstances were exceptional enough for the Council not to follow its policy in applying the council tax premium for the period in question, you can request consideration of a discretionary discount under Section 13A of the Local Government Finance Act 1992. You would have to provide full details of your reasons as to why you believe your circumstances were exceptional enough for this to be considered, including any appropriate supporting evidence, such as bank account statements showing financial hardship as a result of said premium.

I’d like to take this opportunity to advise you should you wish to consider this action, that whilst every case is considered on its own merits, there have been previous requests that have been declined as the circumstances put forward were either not considered exceptional or unique for the Council not to apply policy.”

22. In early 2021 Mr R asked to complain. His main complaints to the Council were about the injustice of charging him an extra premium for a property he could not travel to move into. The Council’s complaint responses did not uphold the complaint. Mr R complained to the Ombudsman, including that the Council continued to seek payment of the debt from him.

Analysis

23. My role is to assess the Council’s actions against what the law and policy say should have happened. It is not to comment on a complainant’s view about the seeming unfairness of a policy (unless we can identify some administrative fault).
24. This means I cannot criticise the Council’s decision to charge a 200% council tax premium on empty properties. The law allows it to do this. I also cannot criticise its view that it would continue to charge these premiums during the COVID-19 lockdown(s). There was nothing in the government’s emergency legislation requiring local authorities to make any changes to their normal practice around council tax billing.
25. The Council correctly signposted Mr R to its discretionary discount scheme, as a way for it to consider whether there were reasons for it to reduce his council tax for the period he disputes. That is an option still available to him. I know the Council warned Mr R his reasons would need to be exceptional. But as the decision on such an application carries a right of appeal, this is not something the Ombudsman will consider further.
26. Mr R’s key complaint is he says the Council’s council tax team advised him, during a telephone call, that he should not move into his house. And that it would not charge him the added premium that it was about to introduce. The Council says it can find no trace of a call around that time to its council tax team, from either of the telephone numbers it has on file for Mr R.
27. When I spoke to Mr R, he was clear the conversation took place and was witnessed. I have no reason to doubt that. Nor do I doubt that Mr R understood the advice as he has set it out to the Council and Ombudsman. But that does rule out the possibility that Mr R misunderstood the advice Council officers gave him. I say this as the Council is equally resolute in its view that none of its council tax officers would have given the advice as Mr R understood it, as it was inaccurate.
28. And Mr R did not mention the advice in his 8 April email, or (in writing) for some time afterward. This lessoned the chances of a successful investigation of the matter by the Council. My view is I cannot now resolve this conflict about what was said during that telephone call. Further investigation would be unlikely to resolve this. So I cannot uphold this complaint.
29. I cannot criticise the Council for continuing with enforcement action. It was seeking to recover a tax debt owed to it. Only part of this was in dispute. It was entitled to continue with enforcement action. This is not something the Ombudsman can criticise.

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Final decision

30. My decision is there was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman