Challenging Council Tax 'second home' status - Precedents/advice?

Hi.

Does anybody have any info/advice about cases where Council Tax second home status has been challenged/changed?

Occassionally we receive complaints about 'empty' properties that on checking are actually listed as second homes. Sometimes they are neglected and dilpidated properties that are not easily accessible or often visited/used. The expectation is that the Council should/will tackle, but explaining that a property is not actually empty (rather it's just 'vacant') can be difficult. Similarly pursuing action, unless there are issues that warrant s215/other action. But the prospects for action, and bringing the property into regular housing use, would probably be better if status were long-term empty as it would add weight to justification.

I'm aware of the 23/09/14 DCLG letter defining empty homes and second homes. That implies that distinguishing empty and second homes is fairly straightforward. But in practice it's not so easy. For instance, we've received renewed complaint about a property, alleged to be empty, that we'd previously investigated and closed our file on the basis that second home. The property is furnished, albeit in very dated fashion; and whilst dilapidated no action warranted. But neighbours are not convinced/satisfied. We are reviewing, including with Council Tax/other colleagues. Arguably if the Council Tax status were long-term empty (premium) it would support potential action (or threat of), e.g. EDMO/CPO.

I'm wondering whether any knowledge of legal precedents or other experience in the network, and would be grateful for any info/advice.

Thanks.

David 

Forums: 
Council tax - discounts, access to info etc

Hi David,

As stated in 23/09/14 DCLG letter I believe that requesting electricity bills is a good starting point to prove whether a property is actually used, as suggested below.

Where a property is said to be occupied it will be reasonable for the local authority to cross-check with the electoral roll , or ask for evidence, such as utility bills showing usage of services, driving licence as proof of address, or receipts or other proof of moving costs.

Where the front gardens of a empty property are a mess, I have recently started sending out community protection warnings (CPW) as a precursor to moving to a Community Protection Notice (CPN) this negates the need for our Planning enforcement team to get involved. I am expecting to serve my first CPN later this week if no action as directed under the CPW has occurred.

thanks and good luck

I have used the Housing Act & HHSRS to clarify the status where the property appears in poor repair. I have let the owner know that I am concerned that there are Cat 1 & 2 hazards within the home, judging from an external inspection, and am greatly concerned about their welfare when visiting their second home and so would like them to grant me access to carry out HHSRS inspection. I also advise that this could result in an improvement notice, at a cost of £X, if such hazards are found. I advise that a local housing authority has a duty to act, if concerned about the presence of Cat 1 hazards and that the council is prepared to obtain a warrant if access is denied. I also point out that if this is merely an empty property that is being used to store furniture and is not actually used as a second home then my concerns about hazards to health are somewhat diminshed and would be satisfied with a schedule indicating their timescales for bringing the property back into use.

Not yet had to go for warrant in this scenario and naturally it is not suitable where properties appear up to standard but I have found it helps owners clarify their position.

Sue Li

Compulsory Purchase and Enforcement Officer

Derby City Council

Hi David

Just to clarify, in case there is any doubt, the council tax position in England (unlike Scotland) does not require ANY period of occupation at any time to qualify as a 'second home'. If it is long-term empty then it has to be substantially unfurnished.

The DCLG letter you quote notes that what 'substantially unfurnished' means is down to local judgement (subject to appeal of course). Their letter is a typical piece of vague waffle to hide the fact which blurs the distinction that they haven't really thought about the implications of the definitions they have used. They have tried to blur it by saying to meet the 'empty homes' definition:

A property which is substantially unfurnished is unlikely to be occupied or be capable of occupation.

But there is nothing in the definition that says that a property should be 'capable of occupation'.

DCL|G does seem to say that they would expect white goods to be present, which I would thought might be contestable by an owner if the house is otherwise well provided with furniture - I am not aware of any case law on that but according to the Commons Briefing note on Council Tax and Empty Homes

Again, it is for the billing authority to decide whether a property meets this definition, and there is substantial case law in existence.

However, a council solicitor in April 2016 reported to an Internal Audit and Standards Committee:

In terms of case law I have not been able to locate any offering further definition of substantially unfurnished and unoccupied. Council Tax matters are taken to Valuation Tribunal and are generally not reported as widely. I cannot say there have not been matters that have gone to tribunal over this issue; however, I cannot find any that have been reported (within the timeframe given for this note).

It will be useful to locate the elusive case law (if it actually exists) but I am prevented by acute toothache from pursuing this line of enquiry. Meanwhile, however, council tax consultants LGFA92 state unequivocally:

There have been no significant High Court cases or Valuation Tribunal decisions in which the concepts of furnished and substantially unfurnished have been considered and fully defined. This means you cannot rely on any real precedent or case law to make a determination for you.

You would think they would know, though they do have a commercial reasons for the question to remain obscure.

The good news?

On the other hand - and someone will correct me if I am wrong - the fact that the property is furnished is no bar at all to an EDMO or a CPO. A chunk of the EDMO legislation deals with the options for dealing with furniture in the property.  And complaints from neighbours would be an important support in making the case for either of these.  Appropriate warnings could certainly be issued. But Sue has ably covered some of the possible approaches.