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Graham Shulman and Mark Shulman, The Executors of the Estate of the Late Anita Shulman against City of Edinburgh Council (Upper Tribunal - Local Taxation Chamber) [2025] UT 49 (01 July 2025)
URL: http://www.bailii.org/scot/cases/ScotCS/2025/2025ut49.html
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[2025] UT 49
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2025UT49
Ref: UTS/AP/25/0070
DECISION OF
Sheriff Jillian Martin-Brown
ON AN APPLICATION FOR PERMISSION TO APPEAL
(DECISION OF UPPER TRIBUNAL FOR SCOTLAND)
IN THE CASE OF
Mr Mark Shulman & Mr Graham Shulman,
The Executors of the Estate of the Late Anita Shulman
Appellants
- and -
City of Edinburgh Council
Respondent
FTS Case Reference: FTS/LTC/CT/24/01127
Forfar, 1 July 2025
Decision
Permission to appeal is REFUSED.
Reasons For Decision
Background
1.
In their capacity as executors for the estate of the late Anita Shulman, the appellants
appealed against the decision of the local authority to charge council tax with a 10%
discount rate for the retirement property at Flat 5, 21 Balcarres Street, Edinburgh. An
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evidential hearing took place on 30 January 2025 and the appeal was refused on 25
February 2025. The First-tier Tribunal for Scotland ("FTS") agreed with the respondent
that it was fair, sympathetic and proportionate to reduce the council tax payable on the
property from 200% to 90% for the period July 2024 to March 2025.
2.
The appellants applied to the FTS for permission to appeal its decision to the Upper
Tribunal. The FTS determined that the appellants had not presented arguable grounds
for appeal. Permission to appeal was refused on 17 April 2025.
3.
At the same time as applying for permission to appeal, the appellants applied for
correction of the original decision in the way some dates had been described. The issue
was whether the period under dispute should be described as running from 8 July 2024
to 31 March 2025 or for the period running from 9 July 2024. The FTS considered it to
be clear from the decision of 25 February 2025 that the last day of exemption for the
property was 8 July 2024 and that it was clear from the decision as a whole that the
disputed period ran from 9 July 2024 up to and including 31 March 2025. References in
the decision to 8 July 2024 were not considered to be material to the decision which was
made. The FTS determined that the interests of justice did not require that the decision
was reviewed. It dismissed the application as without merit on 1 May 2025.
4.
The appellants submitted an application to appeal to the Upper Tribunal on 19 May
2025. A permission to appeal hearing took place on 30 June 2025 by WebEx, attended
by Mr Mark Shulman on behalf of the appellants. Mr Mark Rogers provided written
submissions on behalf of the respondent in advance of the hearing and was content for
the hearing to proceed in his absence.
Grounds of Appeal
5.
The appellants sought leave to appeal on five grounds as follows:
(i) jurisdiction of the FTS / decision under appeal;
(ii) construction of section 81(1) of the Local Government Finance Act 1992;
(iii) fettering of discretion;
(iv) relevant considerations and findings and conclusions of the FTS; and
(v) applicability of English law.
Submissions
6.
Grounds (i) (iv) were included in the application to appeal dated 19 May 2025. In
addition, the appellants lodged a skeleton argument dated 25 June 2025, which
expanded upon those grounds and added ground (v). The respondent provided written
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submissions dated 12 June 2025 and did not respond further to the appellants' skeleton
argument of 25 June 2025.
7.
Beginning with ground (i), the appellants submitted that the only appeal before the FTT
was the decision of the respondent made in July 2024. There was no jurisdiction to
consider any other decision of the respondent because it was functus officio, having made
a determination in relation to council tax liability for the period 9 July 2024 to 31 March
2025. There had not been any further pre-appeal review procedure completed under
sub-sections 81(4) (8) of the Local Government Finance Act 1992 in relation to any
other decision.
8.
The respondent submitted that the core issue of the appeal was about the exercise of
discretion.
9.
In relation to ground (ii), the appellants submitted that the FTS should have considered
the evidence as it applied to circumstances in relation to the respondent's decision that
was under appeal. The respondent could not seek to recast or amend the reasons for its
previous July 2024 decision or make any further decision as to the appellants' council
tax liability for the relevant period.
10. The respondent submitted that it was legally entitled to charge council tax at a rate of
200% for the period from 9 July 2024 to 31 March 2025. It deemed it appropriate to
reduce the charge from 200% down to 90% in light of the restrictions on occupation as a
retirement property.
11. In relation to ground (iii), the appellants submitted that the FTS erred in failing to
consider whether the statutory discretion under the Council Tax (Variation for
Unoccupied Dwellings) (Scotland) Regulations 2013 had been properly exercised by the
respondent at the time of its decision in July 2024. The evidence supported the
contention that the respondent treated all long-term empty properties the same way in
terms of a 10% discount. While the respondent gave evidence through Mr Murphy that
the 10% discount could be departed from in exceptional circumstances, it was not clear
when it was alleged that the authority of the respondent's officers so to decide had taken
effect. Two separate discretions were available to the respondent, namely: (i) whether
to charge an increase of council tax of up to 100%; and (ii) the appropriate level of council
tax discount that may be applied between 10% and 50%. There was a logical
inconsistency in accepting there were exceptional circumstances not to charge a 100%
increase but not to depart from the usual 10% discount.
12. The respondent submitted that the respondent carefully considered the nature of the
property and applied a generous reduction by amending the legally correct 200% rate
to a 90% rate.
13. In relation to ground (iv), the appellants submitted that the FTS gave undue deference
to and acceptance of the respondent's views as to what circumstances it considered were
exceptional and what discount was appropriate. The FTS should have taken into
account and made findings in fact about all relevant matters, including whether council
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tax discounts of greater than 10% were given in relation to other long term empty homes
in the area and whether the circumstances were similar or different. There was no
evidence before the FTS as to what might be considered exceptional and the FTS failed
to properly enquire into the issue of whether there were in fact similar long term empty
homes or whether the same or a different level of discount had been given by the
respondent to other comparable cases. It was wrong to place the burden on the
executors to lead evidence about other cases and discounts when such information was
within the exclusive knowledge of the respondent.
14. The respondent submitted that while the level of reduction was not entirely satisfactory
to the appellants, it had carefully considered the restrictions on the dwelling and applied
discretion to reduce the charges accordingly.
15. Finally, in relation to ground (v), the appellant submitted that the FTS erred in not
applying English law and in failing to make findings and determinations in relation to
such arguments advanced by the appellants.
16. The respondent submitted that it agreed and supported the decision made by the FTS
on 25 February 2025 and the decision to refuse permission to appeal to the Upper
Tribunal.
Decision
17. In relation to ground (i), the FTS explained in its decision of 25 February 2025 that the
respondent notified the appellants in a letter dated 20 July 2024 of its decision to charge
council tax on the property with a 10% discount from 9 July 2024. As required by section
81(4) of the 1992 Act, the appellants served a notice disputing that decision on 3
September 2024. The respondent confirmed that it considered its decision to be correct
in an email of 13 September 2024. The appellants' notice of appeal was lodged on 22
November 2024. The requirements of section 81 of the 1992 Act were therefore met.
18. The FTS also explained in its decision of 17 April 2025 that its role in an appeal was to
make such decision as it thought just. The reference to "decisions" did not materially
affect the decision as a whole as it was clear that the FTS decided the original decision
was just.
19. I determined that section 81 of the 1992 Act set out the steps that required to be taken
before an appeal could be made to the FTS in respect of a decision relating to council
tax. The issue was about the exercise of the respondent's discretion for the period 9 July
2024 to 31 March 2025. I did not consider that references to "decisions" materially
affected the decision as a whole. I did not consider that the appellants had set out a
basis as to how the FTS had erred in law and accordingly, refused this ground of appeal.
20. In relation to ground (ii), the FTS made findings in fact in its decision of 25 February
2025 which related to the time period between August 2016 and July 2024, which were
not in dispute. The property was last occupied on 15 March 2022. Both parties were in
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agreement that the 2013 Regulations gave local authorities power, in certain
circumstances, to vary the amount of council tax payable on an unoccupied dwelling by
allowing it to apply a discount rate of between 10% and 50% or increasing the amount
payable by a further 100%. The exception in schedule 2 of the 2013 Regulations for
properties being marketed for sale or let only lasted two years from the last date of
occupation. The FTS determined that the exemptions no longer applied to the property.
21. I determined that the FTS was correct that the exemptions in the 2013 Regulations no
longer applied to the property. It determined that the decision to reduce the council tax
payable on the property from 200% to 90% for the period 9 July 2024 to 31 March 2025
was fair, sympathetic and proportionate. I did not consider that the appellants had set
out a basis as to how the FTS had erred in law and accordingly, refused this ground of
appeal.
22. In relation to ground (iii), the FTS explained in its decision of 25 February 2025 that it
did not agree that the respondent behaved inappropriately when fixing a discount rate
of 10% for the property following the end of the exemption period. There was no
evidence to show the respondent's discretion was fettered. The evidence before the FTS
demonstrated that the respondent's elected members who made up the Finance and
Budget Committee considered the powers given to it under the 2013 Regulations and
decided the appropriate rate of council tax to charge for longer term empty dwellings.
The discretion of what policy to put in pace for this particular category of property lay
with those elected members. I did not consider that the appellants had set out a basis
as to how the FTS had erred in law and accordingly, refused this ground of appeal.
23. In relation to ground (iv), the FTS explained in its decision of 25 February 2025 that it
found Mr Murphy had taken into account the relevant considerations when deciding
what council tax should be payable for the property. It was clear from his evidence that
it was open to him to impose the 100% additional premium on the property but that he
had taken into account the specific situation that retirement flats such as the property
faced when being sold, particularly after the death of an owner. Whilst it was clear that
the appellants disagreed with the findings of the FTS in relation to Mr Murphy's
evidence, I did not consider that they had set out a basis as to how the FTS had erred in
law and accordingly, refused this ground of appeal.
24. Finally, in relation to ground (v), the FTS in its decision of 25 February 2025 confirmed
that it had an opportunity to review all the paperwork listed at paragraphs 2.1 2.4
prior to the hearing taking place. That included the appellants' list of authorities and
case materials.
25. The FTS also explained in its decision of 1 May 2025 that there was no evidence that the
FTS had fettered its discretion and that its policy in relation to the level of exemption to
be applied to empty properties was one which it was entitled to make in terms of the
legislation. The decision maker acting on behalf of the respondent was applying the
policy which had been developed by the elected members of the respondent in line with
its statutory powers and ordinary democratic procedures.
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26. I determined that the FTS did take into account the English authorities provided by the
appellants. However, the FTS found many of the arguments raised by the appellants
were not directly relevant to the appeal. Again, while it was clear that the appellants
disagreed with the findings of the FTS in relation to the fettering of the respondent's
discretion, I did not consider that they had set out a basis as to how the FTS had erred
in law and accordingly, refused this ground of appeal.
Refusal of Permission
27. Permission can only be granted if there are arguable grounds of appeal on a point of law
(section 46 of the Tribunals (Scotland) Act 2014). As that statutory test is not met in
relation to any of the five grounds, permission is refused.
Sheriff Jillian Martin-Brown
Member of the Upper Tribunal for Scotland