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)

Factual and Procedural Background

The appellants, acting as executors of the estate of the late Ms. Shulman, appealed a local authority decision to charge council tax on a retirement property with a 10% discount rate. The property was located at Flat 5, 21 Balcarres Street, The City. An evidential hearing was held on 30 January 2025, and the First-tier Tribunal for Scotland (FTS) refused the appeal on 25 February 2025, finding it fair, sympathetic, and proportionate to reduce the council tax payable from 200% to 90% for the period July 2024 to March 2025.

The appellants sought permission to appeal this decision to the Upper Tribunal, which the FTS refused on 17 April 2025, concluding that no arguable grounds for appeal had been presented. Concurrently, the appellants applied for correction of certain date references in the original decision, which the FTS dismissed as without merit on 1 May 2025.

Subsequently, the appellants applied to the Upper Tribunal for permission to appeal on 19 May 2025. A hearing was conducted by WebEx on 30 June 2025, attended by the appellants' representative, with the respondent providing written submissions and consenting to proceed in their absence.

Legal Issues Presented

1. Whether the FTS had jurisdiction to consider decisions beyond the initial council tax decision of July 2024.
2. Interpretation of section 81(1) of the Local Government Finance Act 1992 in relation to the appeal.
3. Whether the respondent fettered its discretion in setting the council tax discount rate.
4. Whether the FTS properly considered relevant facts and made appropriate findings regarding the discount applied and comparable cases.
5. Whether English law was applicable and if the FTS erred in failing to apply it.

Arguments of the Parties

Appellants' Arguments

• The FTS lacked jurisdiction to consider decisions other than the initial council tax decision from July 2024, as the respondent was functus officio and no further pre-appeal review had occurred.
• The FTS should have confined its consideration to the original decision and not allowed the respondent to recast or amend reasons relating to council tax liability.
• The respondent fettered its discretion by uniformly applying a 10% discount to long-term empty properties without proper consideration of exceptional circumstances or the dual discretions available under the 2013 Regulations.
• The FTS failed to properly investigate or make findings on whether greater discounts were applied to comparable long-term empty homes and improperly placed the evidential burden on the appellants despite the respondent’s exclusive knowledge.
• The FTS erred by not applying English law and failing to address related arguments advanced by the appellants.

Respondent's Arguments

• The core issue was the lawful exercise of discretion regarding council tax charges.
• The respondent was legally entitled to charge 200% council tax but appropriately reduced this to 90% considering the property's retirement status and restrictions on occupation.
• The respondent’s discretion was not fettered; the Finance and Budget Committee, composed of elected members, had lawfully set the policy and discount rates for long-term empty dwellings.
• While the appellants may be dissatisfied with the discount level, the respondent carefully considered the circumstances and applied discretion accordingly.
• The respondent supported the FTS’s decisions and the refusal of permission to appeal.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court examined each ground of appeal in turn, referencing the FTS’s prior decisions and the statutory framework under the Local Government Finance Act 1992 and the Council Tax (Variation for Unoccupied Dwellings) (Scotland) Regulations 2013.

Regarding jurisdiction, the court found the statutory appeal requirements were met, including the notice of dispute and appeal timelines, and that references to multiple "decisions" did not materially affect the outcome.

On statutory interpretation, the court agreed the FTS correctly found the exemptions no longer applied after the relevant period and that the reduction from 200% to 90% was fair and proportionate.

The court found no evidence that the respondent’s discretion was unlawfully fettered, noting that elected members had established the discount policy and that the respondent had applied it consistently.

In relation to factual findings, the court accepted that the FTS had considered relevant evidence, including the respondent’s witness testimony, and had appropriately evaluated what constituted exceptional circumstances without requiring further evidential burden on the appellants.

Finally, the court noted the FTS had reviewed the appellants’ English law authorities but found them largely irrelevant to the matter before it, and thus no error arose from any failure to apply English law.

Overall, the court concluded that the appellants had not demonstrated any legal error by the FTS sufficient to justify granting permission to appeal.

Holding and Implications

Permission to appeal is REFUSED.

The decision directly upholds the FTS’s determination that the council tax discount applied to the retirement property was lawful, fair, and proportionate. The appellants’ grounds did not meet the statutory threshold for arguable points of law. No new legal precedent was established, and the refusal maintains the status quo regarding council tax discretion exercised by local authorities under the 1992 Act and associated regulations.