Upper Tribunal sheriff allows appeal against refusal of council tax reduction for wheelchair user

About this case:

• Citation:
  2023UT44
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff George Jamieson

Ian Bell had sought the reduction from South Lanarkshire Council in terms of regulation 3 of the Council Tax (Reduction for Disabilities) (Scotland) Regulations 1992. He argued that the FTS had failed to deal with his application correctly and taken into account irrelevant considerations.

The appeal was heard by Sheriff George Jamieson of the Upper Tribunal.

Abused and interrogated

By email dated 10 June 2022, the appellant made an application to the respondent for a reduction in council tax by reason of disability, as he had done for the previous two tax years. The council responded stating that it would progress the application once he provided more information, in effect refusing the application.

Following the service of notice on the respondent, the matter came before the FTS in August 2023. The Tribunal found that the appellant failed to provide the respondent with any information in support of his application that would have entitled them to hold that the dwelling contained a room used for meeting the needs of a wheelchair user. As such, it held that the appellant was not an eligible person for the purposes of the 1993 Regulations.

It was the view of the appellant that he had been abused and interrogated by the legal member of the FTS. He had explained that an extension had been added to his house to cater for his disabled needs while sons and other carers lived in the main part of the house, and nothing had changed from the previous two years.

It was noted that the 1992 Regulations were silent on the scope of any appeal to the FTS. The sheriff took the view, in line with other non-list appeals to the FTS in respect of local authority decisions, that the appropriate approach to an appeal against a decision of a local authority valuation committee in this respect was an appeal by way of rehearing.

Inflexible approach

In his decision, Sheriff Jamieson said of the FTS’ approach: “In my opinion, the legal member of the FTS took the wrong approach to the Appellant’s appeal. He used a significant portion of his Decision to criticise the Appellant for failing to provide sufficient information to the Respondent to enable it to make a decision on his application for a reduced council tax banding; and for perceived failures by the Appellant in completing his application and appeal forms.”

He continued: “In his Decision dated 18 October 2023 refusing permission to appeal, the legal member repeated his understanding that the focus of the appeal to the FTS was whether the Respondent had been wrong to refuse the Appellant’s application. The legal member concluded that: ‘it is not the tribunal’s function to receive new information and make its own decision on whether the discount should be granted’. That conclusion was, in my opinion, plainly wrong.”

In further criticism of the legal member’s approach, Sheriff Jamieson added: “The legal member was bound by the overriding objective of the FTS to deal with the proceedings fairly and justly, which included avoiding unnecessary formality and seeking flexibility in the proceedings and ensuring, so far as practicable, that the parties were able to participate fully in the proceedings. To that end, the FTS had extensive case management powers to order the parties to produce evidence or information to the FTS.”

He concluded: “Unfortunately, the legal member’s approach appears to have been inflexible and to have resulted in the Appellant feeling he had not received a fair hearing. The legal member did not, in my opinion, seek to enable the Appellant to fully participate in the proceedings because he did not properly explain the correct function of the FTS on hearing this appeal to the Appellant. This prevented the legal member from understanding that he had powers, if required, to obtain sufficient information to determine the appeal de novo, by way of a rehearing of the facts, as required by law.”

Permission to appeal was therefore granted.