Local Government (Scotland) Act 2003 regulations to increase Council Tax on second homes: FOI release

Information requested

QUESTION 1: What is the provision and specific wording of section 33(1) and (2) of the Local Government (Scotland) Act 2003 which authorises the making of Regulations to impose an increase in Council Tax liability for "second homes".

QUESTION 2: Do local authorities have a discretionary power to charge different amounts of Council Tax for "second homes" (a) in different parts of their local area and/or (b) for different property circumstances? If the answer is "yes" to (a) and/or (b) where is the statutory authority and/or Scottish Government guidance for the discretion to be found?

Response

I can confirm that we hold the information you requested, and I have provided it below in this response.

Question 1: Provision and wording of section 33(1) and (2) of the Local Government (Scotland) Act 2003

Section 33(1) and (2) of the Local Government in Scotland Act 2003 (as amended) provides the statutory authority for the Scottish Ministers to make regulations concerning Council Tax variation for unoccupied dwellings. The relevant wording is:

“Section 33(1): The Scottish Ministers may, by regulations...

(b) provide that the amount of Council Tax payable in respect of a chargeable dwelling and any day is to be subject to a variation if, on that day, there is no resident of the dwelling and for the calculation of the amount of that variation.”

“Section 33(2): Regulations made under subsection (1)(b) may, in particular:

(a) provide in relation to some circumstances in which there is no resident of a chargeable dwelling but not in relation to others;

(b) confer on local authorities powers to modify the application of the regulations within their respective areas so that a different amount of variation, or no variation, applies in relation to some circumstances in which there is no resident of a chargeable dwelling but not in relation to others (and to make different modifications for different cases or different classes of case, including for different areas);

(c) make different provision for different cases or different classes of case, including different provision for different areas or for different local authorities.”

These provisions enable the Scottish Ministers to legislate for increased Council Tax liability for unoccupied dwellings, including second homes, and to confer discretionary powers on local authorities.

Question 2: Discretionary powers of local authorities to vary Council Tax for second homes

Yes, local authorities have discretionary powers to vary Council Tax charges for second homes and other unoccupied dwellings and these powers explicitly allow for differentiation:

(a) by geographical area within the local authority: Authorities may apply different Council Tax variations in different parts of their area. For example, they may choose to apply a higher rate in areas with acute housing pressure or tourismrelated second home concentrations.

(b) by property circumstances: Authorities may also vary charges based on the characteristics or use of the property, such as whether it is a second home, undergoing renovation, or unoccupied long-term.

These powers are conferred by Regulation 4(2) of the Council Tax (Variation for Unoccupied Dwellings) (Scotland) Regulations 2013 (SSI 2013/45), which states:

"The power conferred by paragraph (1) may be exercised to make different modifications for different cases or different classes of case, including for different areas."

This flexibility is subject to limits set out in Regulations 5 and 6, which define the permissible range of variation and exempt certain classes of dwellings.

Further detail and practical guidance for local authorities is provided in the Scottish Government’s official guidance, available here: https://www.gov.scot/publications/localgovernment-finance-circular-6-2024-council-tax-on-second-and-long-term-unoccupiedhomes-guidance/.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.