Edinburgh landlord refused permission to appeal denial of two-month council tax exemption for repairs

About this case:

• Citation:
  2024UT52
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Tony Kelly

Alan Hart, who owned a property in the Maltings in Edinburgh, argued that it was “plain ridiculous” for Edinburgh City Council to state that a property with no functioning bathroom was habitable. He argued that the FTS had placed too much value on an estimate that underplayed the duration of the needed works and the habitability of the property.

The appeal was heard by Sheriff Tony Kelly of the Upper Tribunal. Mr Hart appeared in person at the appeal hearing, while the respondent was not represented.

Work not major

On 30 January 2024, the appellant applied for a council tax exemption for the months of January and February 2024 on the basis that the property was unoccupied, uninhabitable, and under repair. This was due to a leak in the bathroom that had damaged the floorboards and joists, necessitating a removal of the fittings to repair the damage and the water being turned off to prevent further leaks. The respondent refused his application on the basis that the work was limited to one room.

An appeal was made to the FTS in which the appellant highlighted that there was evidence of fungal spores caused by the leak and if he had attempted to let the dwelling as it was, he would have had his landlord registration suspended and may have been prosecuted. The respondent’s position was that the work was not major in nature as it only related to one room and the dwelling had remained habitable, the tenants having the use of an en-suite bathroom for washing and sanitation.

The FTS decided that an owner-occupier could have continued to live in the dwelling with access to rudimentary washing facilities and thus it was not uninhabitable. The appellant contended that, in making its decision, the FTS erroneously relied on a contractor’s estimate of the work in which it was said that the work would only take three weeks and that it was safe for someone to reside in the property.

The submissions of the appellant were further developed with reference to the use of fungicide and insecticide within the property, necessitating the constant opening of windows and wearing of face masks, making the property unsuitable for occupation. He added that he had foregone a significant amount of rental income during the period of repairs and the decision was in conflict with the duty of care he owed to his tenants.

Mischaracterised decision

In his decision, Sheriff Kelly said of the basis of appeal: “The challenges which the appellant mounts against the decision of the FTS of 5 July 2024 relate to the FTS decision on matters of fact. The appellant seeks to characterise, as an error on the FTS’ part, its acceptance of a contractor’s opinion about the nature of the work being undertaken whilst the premises were occupied and a refusal to accept his opinion that the works could only safely be undertaken when the property was vacant.”

He continued: “This is to mischaracterise the decision of the FTS. The decision of the FTS was not based upon competing opinions on a question of fact but rather a sound analysis of the competing submissions set against the statutory scheme.”

Noting the uncontroversial factual matrix of the case, the sheriff said: “The nature and extent of the work to be carried out was not disputed. The length of time that it took was not the subject of competing submissions or evidence. What had to be determined was whether the building was habitable and whether there was any alteration to the structure or to the building.”

He concluded: “The FTS decision comprehensively reasons through those issues. It essayed the factors it took into account. None of these are said to be irrelevant. The appellant has not pointed out any irrelevant factors which have made their way into the FTS reasons. The matters to the fore of the appellant’s submission were not disputed questions of fact that the FTS had to resolve in arriving at its decision.”

Permission to appeal the decision was therefore refused.