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Royal Borough of Kingston upon Thames (21 004 385)

Category : Benefits and tax > Council tax

Decision : Upheld

Decision date : 02 Dec 2021

The Ombudsman's final decision:

Summary: Miss X complained about the Council’s decision to charge her council tax on an empty property she owned between May 2020 and September 2020. We find the Council was at fault as it failed to consider whether to use its discretionary powers to apply a discount to Miss X’s council tax. The Council has already reviewed its decision about Miss X’s council tax and waived the payment. That remedies any injustice caused.

The complaint

  1. Miss X complained about the Council’s decision to charge her council tax on an empty property she owned between May 2020 and September 2020. She said that she could not move into the property during the COVID-19 pandemic because she was shielding. She said the Council told her it would “set aside” her liability for the council tax when she contacted it in 2021, but it has subsequently taken court action to recover the debt. Miss X said the Council’s actions have caused her distress as she has a limited income.

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The Ombudsman’s role and powers

  1. 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)
  2. The Valuation Tribunal deals with appeals against decisions on council tax liability and council tax support or reduction.
  3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  4. 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.
  5. 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

  1. I considered Miss X’s complaint to the Council and its response.
  2. I referred to the Local Government Finance Act 1992 and the Council Tax (Demand Notices)(England) Regulations 2011.
  3. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Council tax appeals

  1. A person can appeal to the Valuation Tribunal Service if they disagree with the Council’s decision about their liability to pay council tax; whether they are entitled to a discount (council tax reduction) or whether the property is exempt.
  2. First, they should make the appeal in writing to the council. The council should review its initial decision and notify the person of the outcome. The person then has two months to appeal to the Valuation Tribunal Service. If the council does not respond to the persons request to appeal within two months, they have a right to appeal direct to the Valuation Tribunal Service.
  3. The law states the explanatory notes accompanying a council tax demand notice must include a statement of the procedures to be followed by a person who wants to appeal.
  4. This Council said that, if a person contacts it because they believe the council tax decision is wrong and it cannot resolve the issue over the telephone, it asks the person to write in and ask the Council to review the decision. If the Council decides not to revise its council tax decision, it writes to the person offering the opportunity to appeal.

Council tax reduction

  1. A council has discretion to apply reductions and exemptions for council tax. A council will detail what reductions and exemptions it applies.

Discretionary powers

  1. Councils, in exceptional circumstances, effectively write off some or all of a council tax debt by using their discretionary powers under S13A(1)(c) of the Local Government Finance Act 1992 (as amended).
  2. A taxpayer can appeal for a discretionary discount for any reason. The Council should have some mechanism to consider such requests, with criteria against which they are judged.

What happened

  1. Miss X bought a property in the Council’s area in May 2020. She did not move into the property until September 2020 because she was shielding. Miss X received council tax reduction for the other property she was occupying during that time in a different council area.
  2. Miss X contacted the Council at the start of September 2020 asking about council tax reduction. The Council responded and asked her to provide supporting evidence. It sent Miss X a council tax bill in October 2020. It said she was liable for council tax from May 2020 (where it applied a 25% sole occupancy discount). It applied additional council tax reduction from September 2020, at the time she moved into the property.
  3. Alongside the council tax demand notice the Council provided explanatory notes. These contained information about the appeals process. Miss X said she did not receive these.
  4. Miss X contacted the Council in January 2021. Miss X said the officer she spoke to had said that the Council could set the council tax owed “aside”. The Council’s case records state it told her that liability for the dwelling started in May 2020 when she purchased it and that council tax reduction applied from the move in date in September 2020. The records said that Miss X would write into the Council.
  5. Miss X said she emailed the Council at the time. The Council said it did not receive an email. She emailed the Council further in June 2021 stating she did not move into the property until September 2020. The Council responded. It said it was not possible to apply council tax reduction to two properties at the same time. It said that it could not set aside her liability and the council tax remained payable.
  6. The Council started enforcement action to collect the money owed by Miss X.
  7. In response to our enquiries the Council said Miss X had not contacted the Council and told it she disagreed with the calculation of her council tax reduction. It said as a result it did not reconsider her claim and did not provide advice about appealing.
  8. The Council accepted it had not told Miss X about its use of discretionary relief. It said it had decided Miss X met the criteria for discount. It said it had written off her outstanding council tax balance on the account in full.

My findings

  1. The explanatory notice issued alongside the council tax demand notice explains how a person can appeal the Council’s council tax decision to the Valuation Tribunal Service. The Council was not at fault.
  2. Miss X said the Council did not tell her about her appeal rights when she telephoned it in January 2021. The Council states that the only reason it would have asked her to write in, was if she disagreed with its decision and so to start the appeal process. As I was not present, I cannot confirm what was said. However, as Miss X agreed to write in it is probable the Council told her she needed to do that if she disagreed with its council tax decision. That was the correct advice for it to review its council tax decision. The Council was not at fault.
  3. After Miss X complained further in June 2021, the Council’s written response did not state she had a right to appeal. That was fault.
  4. The Council did not provide Miss X information about its use of discretionary powers or consider whether to use those powers when considering Miss X’s council tax demand for the period between May and September 2020 and whether exceptional circumstances applied. That was fault.
  5. The Council has reviewed Miss X’s council tax and decided she is eligible for discretionary relief because of her exceptional circumstances during the COVID-19 pandemic. It has written off the outstanding balance. That remedies any injustice caused to Miss X.

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Final decision

  1. The Council was at fault for failing to consider whether Miss X was eligible for council tax discount under its discretionary powers. It has reviewed its decision and written off the outstanding balance. That remedies any injustice caused therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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