Shulman v. City of Edinburgh Council (Upper Tribunal – Local Taxation Chamber, 2025): Affirming Broad Local-Authority Discretion over Long-Term-Empty Council-Tax Discounts and the High Threshold for Tribunal Appeals

1. Introduction

The decision in Graham Shulman & Mark Shulman, Executors of the Estate of the Late Anita Shulman v. City of Edinburgh Council [2025] UT 49 concerns an executors’ challenge to a council-tax surcharge imposed on a retirement flat that had become unoccupied on the owner’s death. The case reached the Upper Tribunal for Scotland (Local Taxation Chamber) through an application for permission to appeal against a refusal by the First-tier Tribunal for Scotland (Housing & Property Chamber) (“FTS”).

Sheriff Jillian Martin-Brown, sitting as an Upper Tribunal member, refused permission, thereby:

• Re-affirming the breadth of Scottish local authorities’ discretion under the Council Tax (Variation for Unoccupied Dwellings) (Scotland) Regulations 2013 (“the 2013 Regulations”) to set discounts between 10 % and 50 % or to impose a 100 % premium (“200 % charge”).
• Clarifying that the Upper Tribunal will not intervene unless an arguable error of law is articulated: mere dissatisfaction with discretionary outcomes is insufficient (Tribunals (Scotland) Act 2014, s. 46).
• Confirming that the FTS is entitled to decide what is “just” on the evidence before it, and that it is not obliged to roam for comparative council-tax data lying exclusively within a respondent’s knowledge.

The appellants advanced five grounds of appeal, ranging from jurisdictional arguments to alleged fettering of discretion and the applicability of English law. All were rejected.

2. Summary of the Judgment

After reviewing written and oral submissions, the Upper Tribunal held:

1. The procedural requirements of s. 81 Local Government Finance Act 1992 (“LGFA 1992”) had been satisfied, giving the FTS jurisdiction. References to multiple “decisions” in the FTS judgment were immaterial.
2. The FTS correctly found that the two-year marketing exemption under the 2013 Regulations had expired; consequently a 200 % charge was lawful. The Council’s reduction to 90 % (effectively a 10 % discount) was “fair, sympathetic and proportionate.”
3. No evidence showed that the Council’s policy on long-term-empty properties, adopted by elected members, was unlawfully rigid or fettered. The existence of a standard 10 % discount did not preclude case-by-case adjustment.
4. The FTS had adequately engaged with all relevant considerations, including the executors’ submissions on comparable properties; it was not bound to demand statistical disclosure from the Council.
5. English authorities cited by the appellants were reviewed but found largely inapposite. Scottish legislative provisions governed.

Because none of the five grounds raised an arguable error of law, permission to appeal was refused.

3. Analysis

3.1 Precedents and Statutory Framework Cited

• Local Government Finance Act 1992, s. 81 – sets the pre-appeal review procedure and pre-conditions before the FTS may entertain a council-tax appeal.
• Council Tax (Variation for Unoccupied Dwellings) (Scotland) Regulations 2013 – empower local authorities to vary council tax on unoccupied dwellings, including:
  • Reg. 4 & Sch. 1: discretion to impose up to a 100 % premium.
  • Reg. 5 & Sch. 2: exemptions, notably the two-year “being marketed” exemption that had lapsed in the present case.
• Tribunals (Scotland) Act 2014, s. 46 – permission to appeal lies only where there is an “arguable point of law.”
• Common-law concepts – functus officio; fettering of discretion; jurisdictional error.

No Scottish reported cases are expressly cited in the written judgment, but the statutory provisions above frame the legal analysis.

3.2 The Court’s Legal Reasoning

(a) Jurisdiction (Ground (i))
The appellants argued that once the Council issued its July 2024 decision, it became functus officio, so the FTS could not consider any matter beyond that single decision. Sheriff Martin-Brown held that s. 81 LGFA 1992 contemplates an iterative review (notice of dispute → council reconsideration → appeal). The Council’s single July 2024 decision was the one in dispute, and the FTS had power to consider all discretionary aspects thereof. References to multiple “decisions” were purely semantic and did not taint the FTS’s ruling.

(b) Construction of s. 81 LGFA 1992 (Ground (ii))
The appellants said the FTS wrongly treated historical facts (2016–2024) as determinative. The Tribunal replied that historical occupation and expiry of the two-year exemption were matters of fact necessary to decide whether the 2013 Regulations’ discretion arose at all. The Upper Tribunal agreed, finding no misdirection.

(c) Fettering of Discretion (Ground (iii))
Key question: did the Council operate an inflexible policy (automatic 10 % discount) inconsistent with the 2013 Regulations? Evidence showed elected members adopted a policy framework, but individual officers (Mr Murphy) could depart from it in “exceptional circumstances”. The Council had in fact exercised generosity by reducing a possible 200 % charge to 90 %. Hence no fettering.

(d) Relevant Considerations (Ground (iv))
Appellants contended the FTS should have forced the Council to disclose data on comparative discounts. Sheriff Martin-Brown held that the onus to prove the factual matrix of an appeal lies with the appellant; the Tribunal is not an inquisitorial body obliged to gather evidence from the respondent’s internal records absent a specific evidentiary request.

(e) Applicability of English Law (Ground (v))
Scottish council-tax legislation diverges from its English counterpart; the FTS was entitled to find English authorities “not directly relevant.” This reinforced the principle that comparative jurisprudence is persuasive only where statutory schemes align.

3.3 Potential Impact

• Tribunal Practice: The decision underscores the limited ambit of appellate review in council-tax matters: only errors of law will justify permission. Practitioners must frame grounds with precision, demonstrating misdirection, irrationality, or procedural unfairness—not mere disagreement on quantum.
• Council-Tax Policy: Local authorities can rely on the case to defend standardised discount policies for long-term-empty dwellings, provided officers retain (and document) the ability to depart from the policy where facts justify it.
• Executors & Estate Administration: Personal representatives managing unoccupied retirement properties should anticipate a 200 % potential liability after the two-year exemption lapses and recognise that relief beyond a 10 % discount is discretionary, not obligatory.
• Evidentiary Strategy: Appellants must pro-actively obtain comparator evidence (e.g., Freedom of Information requests) before the FTS hearing; failing to do so may be fatal on appeal.

4. Complex Concepts Simplified

• Functus Officio: Latin for “having performed its office.” Once a public body makes a final decision, it normally cannot revisit it unless statute permits. The appellants argued the Council was functus officio after July 2024; the Tribunal disagreed, holding that the appeal process itself contemplates further scrutiny.
• Fettering Discretion: A public body unlawfully fetters its discretion if it operates an inflexible policy and refuses to consider departures where circumstances warrant. The Tribunal found no such rigidity: officers could, and did, weigh individual factors.
• Arguable Error of Law: Under s. 46 Tribunals (Scotland) Act 2014, permission to appeal requires a point that is both legal (not factual) and reasonably arguable—not fanciful. Dissatisfaction with the outcome or challenges to factual findings usually fail.
• 200 % Charge vs 90 % Charge: A “200 % charge” means 100 % ordinary council-tax liability plus a 100 % premium. A “90 % charge” represents the base liability minus a 10 % discount. The Council’s move from 200 % down to 90 % is therefore a 110 percentage-point reduction.

5. Conclusion

Shulman v. City of Edinburgh Council establishes no dramatic new doctrine, but it crystallises two practical principles of Scottish local-taxation law:

1. Local authorities retain wide yet reviewable discretion when manipulating council-tax rates for long-term-empty dwellings under the 2013 Regulations, provided that elected members set policy and individual officers remain able to recognise exceptional cases.
2. The Upper Tribunal will grant permission to appeal only where a clear, articulable error of law is identified; appellants must do more than challenge factual assessments or the mere generosity (or lack thereof) of discretionary decisions.

The decision therefore offers a valuable precedent for councils, tribunal practitioners, and property-sector stakeholders, clarifying the evidentiary and legal hurdles that must be cleared before the Scottish appellate courts will re-examine discretionary council-tax determinations.