Upper Tribunal refuses appeal bid over property moved to council tax list after 70-night rule not met

About this case:

• Citation:
  2026UT68
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Mr N S Taylor

The application was heard by Mr N S Taylor, legal member of the Upper Tribunal for Scotland, with Mrs McCartney appearing and Mr Charleston, divisional valuer for the assessor, representing the respondent.

Mr Taylor held that, although the legislation provides a discretion for exceptional circumstances to be considered where the requirement is not met, that discretion is conferred on the local authority rather than the assessor or tribunal.

Marie McCartney applied for permission to appeal against a decision of the First-tier Tribunal for Scotland dated 13 March 2026, which had refused her appeal in relation to the deletion of a property from the valuation roll and its entry as a dwelling on the council tax list.

It was not disputed between the parties that the property had not been let for the required number of nights during the 2023/24 financial year. The First-tier Tribunal found that it therefore did not meet the legislative requirements for inclusion on the valuation roll and required to be entered on the council tax valuation list, where it was assigned Band B.

The First-tier Tribunal subsequently refused Mrs McCartney permission to appeal to the Upper Tribunal. She then applied directly to the Upper Tribunal for permission, with that application being made within time.

Exceptional circumstances

Mrs McCartney had argued in seeking permission to appeal that her original appeal was rejected despite evidence of what she described as “special extenuating circumstances”. She sought to have evidence relating to those circumstances considered by the Upper Tribunal.

In her application to the Upper Tribunal, she also maintained that it had not been explained what would happen if the 70-night requirement was not met, or that the appeal system did not take account of extenuating circumstances. She said there had been no information advising her of the right to appeal and that she had been required to navigate the process without assistance.

Prior to a hearing on the permission application, Mr Taylor invited both parties to make submissions on the relevance of regulation 5B of the Council Tax (Dwellings and Part Residential Subjects) (Scotland) Regulations 1992.

Regulation 5B provides that a local authority may determine that property which would fall within the class of self-catering holiday accommodation but for failure to meet the letting requirement should nevertheless fall within that class where it is satisfied that exceptional circumstances prevented the requirement being met and that it is reasonable to do so.

Mrs McCartney said she had not previously been informed about regulation 5B, despite her position being that exceptional circumstances outside her control had prevented her from letting the property for the required number of nights.

The assessor submitted that the discretion contained in regulation 5B was conferred on the local authority rather than the assessor. As no determination had been made by the local authority under the provision, the assessor had been bound to apply the regulations on the basis that the letting requirement had not been met.

At a Webex hearing on 7 September 2026, Mrs McCartney appeared and the respondent was represented by Mr Charleston.

Mrs McCartney told the tribunal that she had received mixed information from both the local authority and the assessor’s office about what she could appeal and how she could do so. She had not been made aware of regulation 5B despite the substance of her representations concerning circumstances she considered exceptional.

No arguable point of law

Mr Taylor noted that an appeal to the Upper Tribunal could only be made on a point of law and that permission would only be granted where there were arguable grounds for appeal.

The test of arguability was not a high one, he added. An appellant did not require to prove at the permission stage that the First-tier Tribunal had actually erred in law, but did require to identify an error capable of being argued at a full hearing.

Addressing Mrs McCartney’s original grounds, Mr Taylor held that the consequences of failing to meet the letting requirement were set out in the 1992 Regulations. Her contention that the appeal system did not take account of extenuating circumstances did not disclose an error because appeals to the Upper Tribunal were restricted to points of law.

He nevertheless gave closer consideration to the fact that regulation 5B had not been referred to in either the First-tier Tribunal’s substantive decision or its subsequent decision refusing permission to appeal.

The First-tier Tribunal had stated that the legislation did not allow discretion over whether a property was included in the valuation roll. Mr Taylor observed that this wording could be understood as suggesting that the legislation contained no discretion at all, although regulation 5B did confer a discretion on the local authority in cases where the letting requirement was not met.

However, even if the First-tier Tribunal had erred in its description of the law, Mr Taylor held that the point could have no bearing on the appeal.

The assessor had no discretion over whether the property met the relevant letting requirement. Mrs McCartney had not applied to the local authority for it to exercise its discretion under regulation 5B, and the assessor was therefore bound to proceed on the basis that the requirement had not been met.

Mr Taylor concluded that no arguable point of law had been identified and refused permission to appeal.

He observed that, had the separate avenue under regulation 5B been identified earlier, Mrs McCartney might have been spared the effort of pursuing the matter to the Upper Tribunal.

The tribunal also noted the assessor’s submission that it remained open to Mrs McCartney to contact the local authority and ask it to exercise its regulation 5B discretion. Mr Taylor expressly declined to determine whether that was in fact still possible or how the local authority might treat such an application.

There is no appeal against the decision or right of review.