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Brian Woodcock against East Ayrshire Council (Upper Tribunal - Local Taxation Chamber) [2025] UT 40 (12 June 2025)
URL: http://www.bailii.org/scot/cases/ScotUT/2025/2025ut40.html
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[2025] UT 40
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2025UT40
Ref: UTS/AP/25/0021
DECISION OF
Sheriff Komorowski
ON AN APPLICATION FOR PERMISSION TO APPEAL
(DECISION OF FIRST-TIER TRIBUNAL FOR SCOTLAND)
IN THE CASE OF
Mr Brian Woodcock
Appellant
- and -
East Ayrshire Council
Respondent
FTS Case Reference: FTS/LTC/CT/24/00668
Appellant: Party
Respondent: J. McKay
12 June 2025
Having: considered the appellant's written application for permission to appeal; heard parties at
a hearing by telephone on 1 April 2025; considered the e-mail sent by the appellant to
the respondent dated 15 June 2024; and, the appellant's written observations on that e-
mail;
The application is REFUSED.
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REASONS FOR DECISION
[1]
The appellant (the taxpayer) challenges his assessment for council tax by the respondent
(East Ayrshire Council) for a residential building he owns in a village near Ayr, which at the
material times was not his main residence. He contends that it ought not to have been classified as
a long term unoccupied dwelling, but rather should have been classified as a second home.
Council tax variations for second homes and unoccupied dwellings
[2]
Local authorities are permitted to offer discounts or premiums for second homes and for
long term unoccupied dwellings. The extent to which legislation has permitted local authorities to
make such variations to the standard liability for council tax has changed over time, as has the
extent to which East Ayrshire Council made such variations. From October 2018 (with a limited
exception for the COVID-19 lockdown), that council imposed a 100% premium for long term
unoccupied dwellings. From April 2024, the council also imposed a 100% premium for second
homes. Over recent years, depending on the precise level of discounts or premia operating at a
particular point in time, it was to a taxpayer's advantage for their dwelling to be characterised in
one way or another, and the most advantageous categorisation might differ from time to time. A
taxpayer might try to persuade a local authority, or a tribunal on appeal, that their dwelling falls
into a particular category at particular times in a way advantageous to him, though if care is not
taken with this his position might become inconsistent, or have unanticipated consequences.
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The decision of the original tribunal
[3]
In this case, having heard from the taxpayer in person and considered certain documents,
the First-tier Tribunal (Local Taxation Chamber) (L McLaughlin) in its decision dated 24 December
2024, pronounced findings-in-fact which included the following:
a.
In July 2020, the taxpayer informed the council that the dwelling was a second home
(para. 5.5).
b.
On 4 September 2020, the taxpayer said to the council that the dwelling had been
unoccupied and unfurnished till 7 May 2020, but beyond then he would dispute
that it was habitable due to water ingress and dampness (para. 5.7).
c.
In response to an e-mail of 30 November 2020, the taxpayer complained that he had
not been properly advised as to the reasons for changes in his assessment of council
tax after he informed them that he stayed there for 26 days a year (para. 5.8).
d.
On 14 June 2024, the taxpayer contacted the council and stated that the dwelling
was in an uninhabitable state of repair and he visited only to perform repairs, not
to stay in as a second home. He said it was unfurnished and uninhabitable. He
confirmed his position in an e-mail the following day (para. 5.10).
[4]
The Tribunal stated that the taxpayer had provided "conflicting information" to East
Ayrshire Council (paras. 6.1, 6.4), in repeatedly stating the dwelling was uninhabitable but also
stating he was living there 26 days a year (para. 6.4). He had been consistent, though, that the
property was unfurnished (ibid). That there had been water ingress and dampness was a
circumstance that added credence to that position (ibid.). Accordingly, the dwelling was not at any
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time a second home (para. 6.5). Rather, it became and had remained a long-term empty property
from June 2020 (paras. 6.6, 6.7). There was no applicable exception from it being classified as a
long-term empty property; there was no evidence that "structural repairs" were required, the
taxpayer said he would perform the renovations personally (para. 6.6).
The decision of the First-tier tribunal refusing permission to appeal
[5]
The taxpayer's application to the First-tier Tribunal for permission to appeal to the Upper
Tribunal was unsuccessful. In a decision dated 6 February 2025, the tribunal (E. McIntyre) dealt
with each of his six grounds separately and in order, though I think they can be conveniently
consolidated and re-ordered into: the conduct of the council, complaints about unfairness at the
hearing arising from inequality of arms, unfairness arising from bias by the tribunal, and whether
there was a basis in the evidence for the tribunal's findings. The reasoning of the tribunal (E.
McIntyre) might be summarised as follows:
a.
The conduct of the Council
The taxpayer's complaint that the council introduced a new condition in 2024 that
the second home must be "furnished" was unsound, that condition was imposed
by the legislation in force since 2013. Complaints about how East Ayrshire Council
had handled matters were not relevant to what the tribunal had done. The tribunal
was required to apply the definition of a second home found in the legislation
(paras. 2.3.6-2.3.8; 2.3.17-2.3.21).
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b.
Unfairness (equality of arms)
The tribunal (E. McIntyre) rejected the taxpayer's complaint of not having had a fair
hearing given his mental illness and his consequent inability to understand the law
or retain information. The taxpayer was asked at the hearing if he wanted to seek
legal representation, but he declined. There was no indication that he appeared
unable to adequately take part in proceedings. The original tribunal took steps at
the hearing to mitigate the taxpayer's difficulties (paras. 2.3.3-2.3.5).
c.
Unfairness (bias)
There was no basis to say, as the taxpayer contended, that the tribunal was biased
in favour of the council or ignored that taxpayer's evidence. It had not taken account
of irrelevant considerations as to the change in council tax for second homes:
whether the dwelling was a second home was clearly central to its decision (paras.
2.3.14-2.3.16).
d.
No basis in the evidence
Contrary to the taxpayer's contention that the tribunal's findings had no basis in
the evidence, the original tribunal was entitled to find: (a) that repairs for water
ingress and dampness would not be "structural"; and, (b) based on what the
taxpayer had said, the home was not furnished (paras. 2.3.9-2.3.13).
The renewed application to the Upper Tribunal for permission to appeal
[6]
The taxpayer has renewed his application for permission to this tribunal. His application is
somewhat discursive and repetitive. In substance, it appears to advance the same contentions as
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in his original application for permission to appeal. Having heard the taxpayer at the telephone
hearing explain the basis of his application, I am satisfied for the most part for the same reasons
given by the First-tier Tribunal (E. McIntyre) that permission to appeal ought to be refused.
[7]
Adopting the same categorisation of the complaints as I did earlier, I remark as follows:
a.
The conduct of the Council
I agree with what the First-tier Tribunal (E. McIntyre) said and have nothing to
usefully add.
b.
Unfairness (equality of arms)
The taxpayer denies that he was ever offered the opportunity to seek legal
representation at the original hearing. But the question is somewhat moot in that,
as he explained at the telephone hearing, he had made strenuous efforts to obtain
representation in advance of the original hearing. He had not secured legal
representation for the Upper Tribunal application either. So even if the initial
hearing had been adjourned, there is no reason to believe he would have secured
representation. There is no absolute right to legal representation. No doubt the
taxpayer's case could have been presented with more finesse and forcefulness with
legal representation. But that, one would expect, will almost always be true with an
unrepresented litigant. The issues arising in this case were basic questions of fact.
They were not of such difficulty as to require legal representation to enable the
taxpayer's position to be effectively presented. The taxpayer's written argument in
his application for permission lacks focus but it is not outwith the spectrum in kind
8
or quality of what one commonly encounters from an unrepresented litigant. I have
felt able to discern the substance of the taxpayer's complaints. I did not detect in
that written application or in my discussion with him at the telephone hearing any
appreciable difficulty in retaining information or participating in dialogue. Rather,
he was able to articulate his position with reasonable clarity at the telephone
hearing. When asked about what variations should be made by the tribunal, he had
nothing to suggest at the telephone hearing other than perhaps securing provision
of legal representation for him. As I have said, I see nothing in the issues or in the
taxpayer's abilities or aptitudes that would make representation a prerequisite for
a fair hearing.
c.
Unfairness (bias)
I agree with the First-tier Tribunal (E. McIntyre) on what it said about bias. Deciding
what to make of conflicting evidence is the quintessential task of a fact-finding
tribunal; that it prefers the interpretation of the evidence advanced by one party
rather than the other is not a sign of bias but rather the discharge of its function.
I have a concern as to whether the tribunal (L McLaughlin) has demonstrated
consideration of the taxpayer's position.
d.
No basis in the evidence
I agree with the First-tier Tribunal (E. McIntyre) insofar as the original tribunal was
plainly entitled to conclude that the dwelling was not a second home but was an
unoccupied dwelling based on its articulated findings-in-fact. But I have
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reservations as to whether it had set out in its reasons the evidential basis for those
findings-in-fact.
The discussion as to the need for structural repair is somewhat puzzling. The First-
tier Tribunal did not cite the specific regulation of the Council Tax (Variation for
Unoccupied Dwellings) (Scotland) Regulations 2013 for which this was pertinent.
A local authority is not entitled to modify the council tax payable for a dwelling
undergoing or requiring "major repair work to render it habitable ... or which is
undergoing structural alteration" within six months of purchase (2013 Regulations,
reg. 5(c)). As the taxpayer purchased the dwelling in November 2019 (original
tribunal, para. 5.1), whether there was any need for major repair work or structural
alteration would seem to be irrelevant after May 2020. If it was relevant, it was for
the taxpayer to establish the need for major repair work or ongoing structural
alteration. The defects described were not eloquent of something that would
inevitably require such substantial works, the taxpayer never explicitly claimed
such works were required or were being performed, and that he was doing the
work himself tended to suggest otherwise.
[8]
What is arguably lacking in the decision of the original tribunal is: (a) an explicit articulation
of the taxpayer's position, whether in the form of oral testimony at the hearing or advanced as
argument; and, (b) the evidence upon which the findings-in-fact were based. If I had not had the
opportunity to ascertain what lie behind those findings beyond what was said in the original
tribunal's reasons, it might be there was an arguably an error of law material to the outcome. But
10
having considered what was said by the taxpayer to me at the telephone hearing, and having read
one of the e-mails referred to in the original tribunal's findings-in-fact, I am now satisfied both that
there was a basis for the original tribunal's findings and that there was no other conclusion
realistically open to it.
[9]
A "second home" must, amongst other things, be "furnished" (2013 Regulations, reg. 2). An
unoccupied dwelling is anything that is neither: (a) the taxpayer's main or sole residence; nor, (b)
their second home (ibid).
[10]
To be a second home, it is not a condition that the dwelling be habitable as such, though
naturally if it is not in a fit state to be lived in then it is less likely that it would be lived in.
Circumstances can be readily envisaged where somewhere is not fit to be lived in but nonetheless
is, as a matter of fact, used by someone as their habitation. The taxpayer explained in the telephone
hearing that though he said it was uninhabitable, he meant that just in the sense of it not being in
a proper state to let out as a residence (it was still capable of being lived in). As the original tribunal
have not noted what position the taxpayer advanced, I do not know if he advanced this position
at the original hearing. The tribunal's decision cannot be sustained on the basis of a conclusion that
the dwelling was uninhabitable.
[11]
However, if on any realistic view the dwelling was unfurnished, then it cannot be a second
home. It would then be an unoccupied dwelling.
[12]
The original tribunal refer to what the taxpayer stated to East Ayrshire Council on 4
September 2020 as being in response to an e-mail. I do not know if the response itself would have
been an e-mail rather than say, a telephone call. The tribunal do not set out a verbatim quote of
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what was said. But that does not matter, as the taxpayer accepted that he would have told the
council on that date that the dwelling had been both unoccupied and unfurnished. He was unsure
why he would have said it was unfurnished up to 7 May 2020 rather than beyond, but I think the
significance of that concerned a discount or exemption which he was told, or which he understood,
was available for the first six months since purchase. That fits in with the taxpayer's explanation
for the comment. The taxpayer asserted at the telephone hearing that he would have said the
dwelling was unfurnished only in response to advice from the council as to what was necessary to
obtain a discount for it being unoccupied. But whatever the taxpayer's purposes or expectations
were in telling the council that the dwelling was unfurnished, the fact is that he said it was
unfurnished. And albeit that referred only to the period till 7 May 2020, there is no evidence of its
unfurnished state having changed since then.
[13]
During the telephone hearing, I explained to parties that I considered the precise wording of
the taxpayer's e-mail to the Council of 15 June 2024 to be of potential importance. The terms of that
e-mail were not set out in the original tribunal's reasons. I explained that I would conclude the
hearing, require the council to provide the e-mail, and then decide the application. Neither party
disagreed with this course.
[14]
The e-mail of 15 June 2024 has now been provided. There the taxpayer says amongst other
things that:
"Of the things you use on your letter you talk about `furnished property' my house is not
furnished and my house is uninhabitable so should not be classified as a home to attract the
increasing tariff [for second homes]"
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[15]
By e-mail dated 17 April 2025, the taxpayer volunteered the following observations on that
e-mail:
"because of my mental condition I felt I was facing unbearable injustice with the proposed
100% council tax increase. It must be clear that I was making arguments solely relating to
trying to avoid the attack and it had no reference to the previous 4 years relating to the second
home status of the property"
[16]
I also recall that both in his written application and at the telephone hearing the taxpayer
asserted that when he referred to the property being "unfurnished" he meant that it was not in an
ideal state to be rented out rather than entirely lacking in furniture.
[17]
That the taxpayer might have offered a particular explanation for these comments that the
dwelling was unfurnished does not mean the original tribunal had to accept that explanation.
Normally, a tribunal cannot be criticised by a party for proceeding on the basis that what that party
said was seriously and honestly meant. The original tribunal was entitled to find some basis for its
decision in the taxpayer having told East Ayrshire Council on 4 September 2020 and 15 June 2024
that the dwelling had been or was unfurnished. The taxpayer's comments at other times about the
dwelling being uninhabitable or having water ingress or dampness also fit with him having left it
unfurnished. There was no evidence of the taxpayer saying at any point to the council before the
appeal proceedings that it was furnished. In that state of the evidence, I do not think the tribunal
realistically could come to any other conclusion than that the home was unfurnished, or at the very
least that the taxpayer had not proven that it was ever furnished.
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[18]
To hold otherwise would be to differ from the plain and unqualified terms of what the
taxpayer told the council in the e-mail of 15 June 2024. If the tribunal was to have regard to the
taxpayer's explanations given or repeated in the course of the application to the Upper Tribunal
-- part of which was that he said certain things to secure favourable treatment for council tax --
then that would significantly weaken the reliance the tribunal could place on the taxpayer's word
generally. If he is content to present matters in a certain way to the council to achieve a fiscal
advantage, then a real concern arises as to whether anything he said to the tribunal in the appeal
might also be tailored to achieve a particular outcome for council tax, or at least influenced by such
considerations. Suppose that the original tribunal failed to consider the taxpayer's position that
what he said about the dwelling being unfurnished should not be understood in an absolute or
unqualified sense, because he said it to escape avoid the premium for a second home. Such an
explanation does as much harm as good. It could not realistically have altered the outcome.
[19]
Thus, on the hypothesis that the First-tier Tribunal omitted to fully consider the taxpayer's
position, assuming his position advanced at the original hearing was in line with what he has put
forward as part of this Upper Tribunal application, there is no real prospect of a different outcome.
If the First-tier Tribunal's decision was to be set aside and the hearing re-run with the taxpayer
advancing in oral testimony the same position as he has put forward to the Upper Tribunal, there
is no real prospect of him prevailing.
[20]
Accordingly, to the extent that there is any arguable error of law, I consider the prospect of
a substantively different outcome to be so remote as to not justify exercising my discretion to grant
permission to appeal.
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There is no right of reconsideration of this decision as it has been made after a hearing: cf. Upper Tribunal
for Scotland Rules of Procedure 2016, r. 3(7).
There is no appeal against this decision or right of review: Tribunal (Scotland) Act 2014, section 55(2).
Member of the Upper Tribunal for Scotland