Summary: Mrs Y complains the Council failed to consider its discretion to reduce the amount of council tax it asked her to pay on an empty property. The Council says it did use its discretion. The Ombudsman’s decision is it was fault that the Council did not advise Mrs Y she could review and appeal the decision, which its policy says it should have done. To remedy the injustice, we have asked the Council to invite Mrs Y to apply for discretionary relief. That would give her appeal rights to the Valuation Tribunal, in the event of the Council not agreeing to her request.

The complaint

1. The complainant, whom I shall refer to as Mrs Y, complains the Council failed to consider its discretion in respect of what council tax should be paid on an empty property.
2. Mrs Y says this impacted on her financially and has caused her stress. She says, at a minimum, the Council should only have charged her the standard rate of council tax for the period since the start of the pandemic.

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What I have and have not investigated

Time

3. 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)
4. Mrs Y complains to us about matters relating to early 2020, coinciding with the start of the COVID-19 pandemic. Mrs Y could have complained to the Council in March 2020 about its decision not to reduce the amount of council tax it was asking her to pay. But she could not reasonably have been expected to know about the Council having a statutory power to consider discretionary relief.
5. The issue was dormant (as Mrs Y was paying a reduced amount) until February 2022, when the Council made enquiries to Mrs Y. Mrs Y was then in communication with the Council, culminating in a complaint at the end of 2022. Mrs Y then came to the Ombudsman.
6. So, given Mrs Y’s assertion the fault has led to an ongoing injustice, I have used my discretion to investigate events back to the start of the pandemic.

The Council’s policy

7. The Council decided to increase the charge on properties empty for more than two years under Section 11A of the Local Government Act 1992 (as amended). Section 66(2) of the same Act says these decisions can only be challenged by a judicial review in the High Court. Because of this I cannot investigate how the Council made its decision.

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The Ombudsman’s role and powers

8. 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)
9. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
10. The Valuation Tribunal deals with appeals against decisions on council tax liability and council tax support or reduction.
11. If we are satisfied with an organisation’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

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

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What I found

Legal and administrative background

Council tax – discounts, exemptions and premiums

13. Council tax is a tax made on domestic properties. Councils issue one bill to each household. Residents are usually liable for council tax from the date they moved into the property. If a property is unoccupied, liability for council tax remains with the owner. But council tax law and regulations do allow councils the discretion to make a number of exemptions and discounts.
14. Councils can make an extra council tax charge (‘a premium’) on a property that has been empty for two years or more. They can increase that charge the longer the property has been unoccupied.

The Council’s policy on unoccupied properties

15. The Council charges a premium of:
• 100% on a property that has been unoccupied for two or more years;
• 200% on a property that has been unoccupied for five or more years.

Council tax – discretion

16. In exceptional circumstances, councils can effectively waive some or all of a council tax liability or debt, by using their discretionary powers under S13A(1)(c) of the Local Government Finance Act 1992 (as amended).

The Council’s Council Tax Discretionary Discount Policy

17. The Council’s policy says:
• an application must be in writing (or by email) to the Council;
• all applications must be supported by sufficient evidence to allow the Council to properly consider the claim;
• it will only consider awarding a discretionary discount in exceptional circumstances. However, it will consider each application on its own merits;
• where it refuses an application, it would tell the claimant they can ask it to review its decision. If the claimant was dissatisfied with the outcome of the review, they can appeal to the Valuation Tribunal Service.

Principles of Good Administrative Practice

18. In 2018 we published a guidance document setting out the standards we expect from bodies in jurisdiction, called “Principles of Good Administrative Practice”. These principles include:
• being open and clear about policies and procedures; and
• ensuring information, and any advice provided, is clear, accurate and complete.

What happened

Background

19. Mrs Y’s father (whom I shall refer to as Mr Z) had not been living in his old home for several years. He passed away in 2016. At first, the Council granted an exemption on the property’s liability for council tax (awaiting probate). It than suspended the council tax account following applications (including an appeal) by Mrs Y regarding further exemptions. In September 2018, the Council lifted the suspension on the property’s council tax account.

The increase in the council tax and payment arrangement

20. In March 2020 the Council notified Mrs Y that it had introduced a policy to charge increased amounts of council tax on empty properties. This policy would apply to her empty property from April, and it would shortly send her a bill.
21. Mrs Y and her representatives advised the Council:
• she was not in a position to pay the extra council tax as there was no cash assets in Mr Z’s estate;
• the start of the pandemic meant that no work could be done to the property, delaying its sale.
22. The Council responded to advise it would continue to charge the property as per its policy. But given her financial circumstances, it would allow her, for six months (or until the property was sold), to pay the standard rate of council tax. She could pay the shortfall when she sold the property. At the end of the six-month period, the Council agreed to extend the payment arrangement.

The Council’s enquiries and further charges

23. In February 2022, the Council emailed Mrs Y asking if she had sold the property. Mrs Y advised that she had not, due to the pandemic.
24. From June, the property was subject to an extra amount of council tax, as it had been unoccupied for five years. The payment arrangement was still in place.
25. In November, Mrs Y advised the Council she had little money left from Mr Z’s estate. She had to pay an outstanding bill. She listed other challenges and advised it was her view it was unreasonable for the Council to make the charge.
26. At the end of November, Mrs Y complained. The Council did not uphold her complaint, so Mrs Y complained to the Ombudsman.
27. Our Assessment Team asked the Council if it had considered its discretion under Section 13A of the Local Government and Finance Act (see paragraph 16). The Council’s response said:
• it had not considered discretion;
• Mrs Y had not requested it;
• by then Mrs Y had paid the outstanding charge; and
• at “that stage” it would not consider any discretionary award.
28. So, the Ombudsman decided to investigate the complaint. In response to my enquires, the Council:
• advised its view was it had considered its discretion, as could be evidenced by it allowing for Mrs Y to make reduced payments, until the property was sold;
• suggested that a remedy for any injustice was for it to consider an application from Mrs Y for a backdated council tax discretionary discount under section 13A of the Local Government Act.

Analysis

29. A council's decision to grant or refuse a discretionary discount is appealable to the Valuation Tribunal so is out of the Ombudsman’s jurisdiction (see paragraph 9). However, if a council has received a request from someone to pay less council tax and did not suggest they make an application for a discretionary discount, that is something we could consider. This is because the person had not had the opportunity to use their appeal rights.
30. My decision is that is what happened here. Mrs Y advised the Council she would struggle to pay the increased council tax. The Council says it did consider its discretion; evidenced by it allowing Mrs Y to pay a reduced amount until the property was sold. I acknowledge that was a discretionary decision. But it is not one that follows the procedure set out in its own policy. That policy says it should have advised Mrs Y of her right to challenge the decision. That, in turn, would have given her appeal rights to the Valuation Tribunal Service (if the Council did not change its decision). I can see no evidence the Council gave Mrs Y this advice. That was fault.
31. That fault was exacerbated by the Council at first refusing the Ombudsman’s request for it to now consider a discretionary application.
32. We do not know if Mrs Y would have been eligible for a discount. But there is some injustice from her asking for help and not being advised of her right apply for a discount and challenge the Council’s decision.

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Agreed action

33. To remedy the injustice, I recommended that, within a month of my final decision, the Council write to Mrs Y:
• enclosing a copy of its Council Tax Discretionary Discount Policy and inviting her to apply for discretionary relief. It should make clear any evidence she should provide to support an application;
• apologising for the fault I have identified and the unnecessary distress it will have caused her.
34. I also recommended the Council provide a written reminder to its relevant staff, that they should inform customers, who say they cannot pay their council tax, of its Council Tax Discretionary Discount Policy.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I uphold this complaint. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman