Exceptional Circumstances guidance issued to Scottish Local Authorities: FOI release

Information requested

1. Whether the Scottish Government provided guidance and/or advice to Scottish Local Authorities as to the definition of "Exceptional Circumstances" (reference SSI 2021 No. 289 Clause 5B) and/or under what circumstances Exceptional Circumstances should be considered by Scottish Local Authorities.

2. Copies of any/all guidance and/or advice issued to Scottish Local Authorities related to "Exceptional Circumstances" (reference SSI 2021 No. 289 Clause 5B).

Response

We have interpreted your request as referring to the term “exceptional circumstances” as used in regulation 5B of the Council Tax (Dwellings and Part Residential Subjects) (Scotland) Regulations 1992 (“the 1992 regulations”), as inserted by regulation 3 of the Council Tax (Dwellings and Part Residential Subjects) (Scotland) Amendment Regulations 2021 (“the 2021 regulations”). This is because there is no clause 5B and no reference to “exceptional circumstances” in SSI 2021, No. 289 - the Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment (No. 2) Rules 2021.

The Scottish Government has not provided specific guidance and/or advice to Scottish Local Authorities as to the definition of, or related to, "exceptional circumstances". The below sets out the documents published by the Scottish Government relating to the term as used in regulation 5B of the 1992 regulations.

Regulation 5B of the 1992 regulations provides that a local authority may determine lands and heritages in all or part of the local authority area which would fall within the class of self-catering holiday accommodation but for the requirement in paragraph 2(b)(ii) of schedule 2 of these regulations, to fall within the class of self–catering holiday accommodation where it is satisfied that—

(a) there are exceptional circumstances which have prevented the requirement in paragraph 2(b)(ii) of schedule 2 being met in the financial year, and

(b) it is reasonable to do so, having regard to the interests of persons liable to pay council tax.

Paragraph 2(b)(ii) of schedule 2 of the 1992 regulations sets out that any lands and heritages or parts thereof which have in practice been let in the way described in paragraph 2(b)(i) of schedule 2 of these regulations in the financial year for a total of 70 nights or more of the period of 140 nights referred to in paragraph 2(b)(i), subject to the other requirements set out in paragraph 2 being met, are excluded from the definition of dwelling.

It is for Scottish Local Authorities as democratically elected bodies to use these powers as they see fit and Scottish Ministers have no powers to provide statutory guidance on how these powers may be used. The Policy Note of the 2021 regulations provides an explanation of regulation 5B and states:

“This instrument also provides for a discretion for local authorities to determine that properties that would be classed as self-catering holiday accommodation, but for the fact that they fail to meet the 70 days actual letting requirement, can be treated as though they have met that requirement, where they have been prevented from letting as a result of exceptional circumstances. The circumstances that might be appropriate for this consideration include events that would physically prevent the premises from being let, such as a pandemic, environmental or seasonal conditions, or any other physical impediment that would hinder access to the property (landslides, floods and fire).”

The background section in the Policy Note further explains:

“The Scottish Government’s consultation on the implementation of the Barclay Review highlighted the risk “extenuating” and “exceptional” circumstances could preclude self-catering businesses from achieving 70 days of let and called for local authority discretion in these circumstances. Example of and (sic) exceptional circumstances might include: Seasonal/environmental based discretion (e.g. where travel to and from an island is limited to ferries which can be restricted due to the weather or season, this would then impact the amount of time for which any properties on the island can be let.) In order to deliver this, the Non-Domestic Rates (Scotland) Act 2020 amended the Local Government Finance Act 1992 to confer a discretion on local authorities, in prescribed circumstances, to determine whether partiuclar (sic) classes of lands and heritages fall within the definition of “dwellling” (sic).”

More information on this consultation be accessed at: Barclay Implementation: A consultation on nondomestic rates reform - Scottish Government consultations - Citizen Space

Regulation 5B of the 1992 regulations was made under Section 72, subsection 4A of the Local Government Finance Act 1992 (“the 1992 Act”), as inserted by section 6 of the Non-Domestic Rates (Scotland) Act 2020 (“the 2020 Act”), which provides that regulations made under this subsection, may confer discretion on a local authority to determine, in such circumstances as may be prescribed, whether particular lands and heritages fall within that class. Further information is provided on section 6 of the 2020 Act in the Explanatory Notes of the 2020 Act which are accessible at: Non-Domestic Rates (Scotland) Act 2020 - Explanatory Notes; and paras 64 and 65 of the Policy Memorandum of the Non- Domestic Rate Bill which are accessible at: Non-Domestic Rates (Scotland) Bill Policy Memorandum

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.