News & Events

Jonathan Murphy in Upper Tribunal success

Arnot Manderson Property and Valuations and Ratings specialist Jonathan Murphy, Advocate (pictured below) records a notable success on behalf of an Assessor in a recent appearance before the Upper Tier Tribunal.


A woman who was refused a review of her council tax banding by the Assessor for Lanarkshire Valuation Joint Board and had a challenge to that refusal rejected by the First-tier Tribunal for Scotland has failed to obtain permission to further challenge the decision before the Upper Tribunal.

Appellant Maureen Fitzpatrick sought to establish that the FTS had taken the wrong approach to her appeal and made errors in relation to how it handled the application being made outwith the statutory time bar. She maintained that incorrect assumptions had been made about the value of her property as compared to similar properties located on the same estate.

The appeal was heard by Sheriff Frances McCartney of the Upper Tribunal. The appellant made her own submissions, while the respondent was represented by Jonathan Murphy, Advocate.

No discretion

The appellant and her husband became the council tax payers for the property on 1 April 2013. Her proposal to alter the valuation band of the property was sent to the respondent on 21 March 2023 and was refused on the basis of being made more than 6 months after the appellant became the council tax payer. It was noted that there had been a previous appeal attempt in 2015 that had also been refused for time bar reasons.

In her written representations to the FTS the appellant stated that she felt she had been unfairly treated by the respondent and provided detailed reasons for why she considered the banding of her property to be incorrect. However, the FTS determined that the appeal fell to be dismissed, as it had no discretion to waive the time limit found in the Council Tax (Alteration of Lists and Appeals) (Scotland) Regulations 1993.

It was submitted by the appellant that other valuation authorities had previously changed their original findings on council tax bands outwith the 6-month period, and by focusing on this time limit the FTS had taken the wrong approach to the case. She argued that her house had been “misidentified” and was in a different banding to other properties on the estate, including a nearly identical property owned by her nephew.

For the respondent it was submitted that the appeal was solely concerned with whether the FTS had erred in law in determining that the appeal was out of time. The Board would be happy to provide further detail of how the valuation was calculated to the appellant, accepting that the decision may be amenable to a judicial review.

Not easy to understand

In her decision, Sheriff McCartney began: “It is unfortunate that this case has come before the Upper Tribunal in circumstances where Mrs Fitzpatrick appeared not to understand the limited role of the Upper Tribunal. It may assist to provide the following context. As explained at the hearing, the Upper Tribunal is not a general court of re-hearing or review. Its role is limited to considering whether the FTS has erred in law in its consideration of a case.”

She continued: “The FTS dismissed Mrs Fitzpatrick’s application as out of time; it did not look at the merits of any arguments about banding. Accordingly the issue is whether leave to appeal should be granted. That involves considering whether the FTS were wrong in law to decide that Mrs Fitzpatrick’s application to the Board was indeed out of time, and were right to dismiss her appeal on that basis.”

Noting that this was a low bar to clear, the sheriff nonetheless went on: “Mrs Fitzpatrick has not persuaded the Upper Tribunal that she should be granted leave to appeal. However unfortunate it is for Mr & Mrs Fitzpatrick, the law does not allow her statutory appeal against the council tax banding to be made at any time. In general terms, an appeal must be made within 6 months of the property being valued within a council tax band, or proprietors moving into the property.”

She concluded: “I appreciate she will be disappointed by this decision. It is often difficult for persons representing themselves to understand the law. The 1993 Regulations are not, at first blush, easy to read or to understand. Whilst the FTS was entitled to determine the appeal without an oral hearing, that inevitably would make it more difficult for Mrs Fitzpatrick to understand both the process and the substantive decision as to why the merits of her appeal was not being considered.”

Permission to appeal was therefore refused. However, in postscript, the sheriff added: “On a pragmatic basis it seems to me that if the Respondents have considered the merits of the points that Mr & Mrs Fitzpatrick make, it is in the interests of transparent administration that there is communication between the parties and such information is shared with Mr & Mrs Fitzpatrick. I would encourage those discussions to take place.”

This article first appeared in the Scottish Legal News.


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