Part 3 – Information notices and notifications of changes of circumstances
121.Part 3 sets out powers for assessors and local authorities to send notices requiring certain persons to provide certain types of information about particular lands and heritages. It also contains a duty on certain persons to notify a local authority of changes in circumstances that might affect their non-domestic rates liability. There are associated offences and civil penalties for failure to comply with the requirements.
Section 26 – Assessor information notices
122.Section 26 gives power to assessors to give written notices to a range of persons requiring those persons to provide such information as the assessor may need for the purpose of carrying out the assessor’s functions in relation to the lands and heritages referred to in a notice. The principal function of assessors is valuing lands and heritages.(30) Examples of the types of information needed for assessors to carry out their functions might include, for example, information about the purposes for which the lands and heritages are used or information needed to establish the identity of the proprietor, tenant or occupier of the lands and heritages.
123.The persons to whom notices may be given are: (a) a person who the assessor thinks is a proprietor, tenant or occupier of the lands and heritages, and (b) any other person who the assessor thinks has information which is reasonably required for the exercise of the assessor’s functions.
124.Subsection (4) of section 26 provides for legal professional privilege to apply if, for example, a person to whom a notice under subsection (1)(b) is sent is a lawyer.
125.An assessor information notice must be given in writing and the person who receives it has 28 days, starting with the day the notice is given, to comply. A person who knowingly provides false or misleading information in reply to an assessor information notice commits an offence – see section 29. Section 30 provides for civil penalties for failing to comply with a notice.
126.These provisions are a more modern, broader replacement for section 7 of the 1854 Act and that section is therefore repealed by section 26(5).
Section 27 – Local authority information notices
127.Section 27 gives power to local authorities to give written notices to proprietors, tenants or occupiers of lands and heritages requiring them to provide such information as the local authority may need for the purpose of issuing demands or other documents relating to non-domestic rates in respect of the lands and heritages.(31)
128.The power is exercised on behalf of a local authority by a person authorised in writing for the purpose of this section.
129.A local authority information notice must be given in writing and the person who receives it has 21 days, starting with the day the notice is given, to comply. A person who knowingly provides false or misleading information in reply to a local authority information notice commits an offence – see section 29. Section 33 provides for civil penalties for failing to comply with a notice.
Section 28 – Duty to notify changes of circumstances
130.Section 28 requires a ratepayer (or a person who would be liable to pay rates in respect of particular lands and heritages but for the fact that no rates are payable) to tell the local authority about certain types of changes in circumstances.
131.The changes in circumstances covered by section 28 are changes (whether in relation to the ratepayer’s personal circumstances or in relation to the lands and heritages concerned) which the person either knows, or might reasonably be expected to know, would affect whether rates are or are not payable in relation to the lands and heritages or would affect the amount of rates that should be payable.
132.The ratepayer must tell the local authority within 42 days of the change in circumstances occurring. A person who knowingly provides false or misleading information in a notification commits an offence – see section 29. A person who fails to tell the local authority of the change within the time allowed is liable to a civil penalty – see section 33.
Section 29 – Offences in relation to information notices and notifications under section 28
133.Section 29 creates a number of criminal offences to enforce the duties in sections 26 to 28.
134.It is an offence (under subsection (1)) to knowingly provide false or misleading information in purporting to comply with an assessor information notice or local authority information notice.
135.It is also an offence (under subsection (2)) to knowingly provide false or misleading information in a notification under section 28.
136.A person who commits any of these offences is liable on summary conviction to a maximum fine of level 3 on the standard scale (£1,000 at the time of publication of these Notes).
Section 30 – Civil penalties for failure to comply with assessor information notices.
137.Section 30 gives an assessor power to give a person who fails to comply with an assessor information notice a penalty notice imposing a civil penalty. The penalty notice must, under subsection (2), set out the reasons for giving it, specify the amount of the penalty, explain a person’s right to appeal and also warn the person that further, escalating penalties may be imposed if the person continues to fail to comply. Subsection (3) provides for how the amount of the penalty is to be determined – if the lands and heritages to which the assessor information notice relates are already entered in the valuation roll, the penalty is either £200 or (if greater) 1% of the rateable value of the lands and heritages (as stated in the valuation roll on the day on which the penalty notice is given).(32) If the lands and heritages are not already entered in the valuation roll, the penalty is £1,000.
138.If the person continues to fail to comply after a further period of 42 days, the person may be given a further penalty under subsection (4). Subsection (4) also provides for how the amount of the further penalty is to be determined. Where the lands and heritages to which the assessor information notice relates are entered in the valuation roll, the penalty is either £1,000 or (if greater) 20% of the rateable value of the lands and heritages (again as stated in the valuation roll on the day on which the original penalty notice is given).(33) If the lands and heritages are not already entered in the valuation roll, the further penalty is £10,000.
139.Under subsection (5), the person becomes liable to a further penalty if, 56 days after the giving of the original penalty notice (and 14 days after becoming liable to the higher penalties set out in subsection (4)), the person has still not complied with the original assessor information notice. In this case, the amount of the penalty is, where the lands and heritages to which the assessor information notice relates are entered in the valuation roll, either £1,000 or (if greater) 50% of the rateable value of the lands and heritages (the rateable value being that stated in the valuation roll on the day the original penalty notice was given).(34) If the lands and heritages are not entered in the valuation roll, the further penalty at this point is £50,000.
140.Subsection (7) provides that an assessor may mitigate or remit any penalty given.
141.The Scottish Ministers may by regulations (under subsection (8)) modify the rules set out in subsections (3), (4) and (5) for determining the amount of penalties (including by amending the figures and percentages specified in those subsections). The regulations are subject to the affirmative procedure. Before laying a draft of such regulations before the Scottish Parliament, the Scottish Ministers must consult such persons as they consider appropriate.
142.The Scottish Ministers may make regulations (under subsection (12)) about the form of penalty notices and how they may be given (for example, they might allow notices to be given by name or by a description such as “the occupier”). The regulations are subject to the negative procedure.
Section 31 – Penalties under section 30: appeals and enforcement
143.Section 31(1) provides that a person who gets a penalty notice relating to an assessor information notice may appeal to a valuation appeal committee. An appeal must be made within 28 days of the day on which the penalty notice is given.
144.Where an appeal is made and the appellant has incurred further penalties under section 30(4) or (5) for continued non-compliance with the assessor information notice, the appeal is, by virtue of subsection (3)(a), to be treated as including an appeal against the further penalties. Making an appeal does not prevent the appellant becoming liable to further penalties (subsection (3)(b)).
145.The valuation appeal committee may cancel the penalty or reduce its amount if they think that the person had a reasonable excuse for not complying with the notice or that the information that the notice asks for is not in the person’s possession or control (subsections (4) and (5)).
146.Under subsection (7), the Scottish Ministers may make regulations to make further provision about appeals under this section, including things like the procedure for appeals and whether penalties have to be paid while an appeal is pending. The regulations are subject to the negative procedure. Before making such regulations, the Scottish Ministers must consult such persons as they consider appropriate.
Section 32 – Payment of penalties into the Scottish Consolidated Fund
147.Penalties imposed under section 30 (for failure to comply with an assessor information notice) are initially payable to the assessor. But the assessor does not retain the penalties – section 32 requires assessors to then pay the penalties into the Scottish Consolidated Fund. Subsection (2) allows assessors to deduct reasonable expenses before doing so. Subsection (3) enables the Scottish Ministers to make further provision in regulations (subject to the negative procedure) about the expenses that can be deducted.
Section 33 – Civil penalties for failure to comply with local authority information notices and for failure to notify changes in circumstances
148.Section 33 gives a local authority power to give persons who fail to comply with a local authority information notice a penalty notice imposing a civil penalty of £95 (subsections (1)(a) and (2)(b)(i)). If the person continues to fail to comply after being asked again for the same information (see section 27(3)), the person may be given a further penalty of £370 (subsections (1)(a) and (2)(b)(ii)).
149.A person who fails to comply with the section 28 (duty to notify a change of circumstances) may be given a penalty notice imposing a civil penalty of £370 (subsections (1)(b) and (3)(b)).
150.In each case, a penalty notice must set out the reasons for giving it and explain a person’s right to appeal (subsections (2)(a) and (c) and (3)(a) and (c)).
151.Subsection (4) provides that an authorised officer may mitigate or remit any penalty given.
152.The Scottish Ministers may by regulations (under subsection (5)) increase or decrease the penalty amounts set out in subsections (2)(b)(i) and (ii) and (3)(b). Regulations are subject to the affirmative procedure. Before laying a draft of such regulations before the Scottish Parliament, the Scottish Ministers must consult such persons as they consider appropriate.
153.The Scottish Ministers may make regulations (under subsection (9)) about the form of penalty notices and how they may be given (for example, they might allow notices to be given by name or by a description such as “the occupier”). The regulations are subject to the negative procedure.
Section 34 – Penalties under section 33: appeals
154.Section 34(1) provides that a person who gets a penalty notice relating to failure to comply with a local authority information notice or to notify a change of circumstances may appeal to a valuation appeal committee. An appeal must be made within 28 days of the day on which the penalty notice is given.
155.Where an appeal is made and the appellant incurs further penalties for failing to comply with further requests for the same information, the appeal is, by virtue of subsection (3)(a), to be treated as including an appeal against the further penalties. The making of an appeal does not prevent the local authority making another request for the information or imposing further penalties (subsection (3)(b)).
156.The valuation appeal committee may cancel the penalty or reduce its amount if they think that the amount of the penalty is excessive (subsection (4)).
157.Under subsection (5), the Scottish Ministers may make regulations to make further provision about appeals under this section, including things like the procedure for appeals. The regulations are subject to the negative procedure. Before making such regulations, the Scottish Ministers must consult such persons as they consider appropriate.
Section 35 – Penalties under section 33: enforcement
158.Section 35 makes provision about the enforcement of penalties imposed under section 33. Subsection (1) provides that such a penalty is recoverable as a civil debt due to the local authority.
159.Under subsection (2), the Scottish Ministers may make regulations containing further provision about the collection of penalties under section 33. Subsection (3) gives examples of the provision that might be made: regulations could, for example, provide for the penalty to be added to the amount of rates due or make provision about repayment where a penalty is mitigated. Regulations could also provide for the penalty to be suspended while an appeal is made. The regulations are subject to the negative procedure, unless they change the text of an Act, in which case they are subject to the affirmative procedure.
Section 36 – Sections 31 and 34: consequential modifications
160.Section 36 modifies enabling powers contained in section 13 of the 1956 Act and section 15 of the 1963 Act as a consequence of the enabling powers in sections 31 and 34. This is to avoid an overlap between the existing powers and the new ones. These provisions will be added to the 1956 and 1963 Acts to follow those added by section 11 of the Act.
Assessors are responsible for valuing lands and heritages in the area of their valuation authority or joint valuation board. But, in addition, some assessors have responsibility for valuing particular types of lands and heritages throughout Scotland. This means that, for example, the assessor for Lanarkshire may give an assessor information notice requiring information to be provided about lands and heritages used for electricity generation, even if the lands and heritages are outwith Lanarkshire (because that assessor is, at the time of publication of these Notes, responsible for valuing all such facilities across Scotland).
The power includes power to require the provision of information about lands and heritages outside the area of the local authority on behalf of which the notice is given – for example, where a person owns lands and heritages in one area, the local authority for that area might also need information about lands and heritages owned by the person in other local authority areas in order to assess entitlement to relief under the Small Business Bonus Scheme.
In practice, this means that lands and heritages would need to have a rateable value of more than £20,000 in order for a penalty under subsection (3)(a) to exceed the £200 specified in sub-paragraph (i) of that subsection – although the £200 figure can be altered by regulations, as can the percentage specified in sub-paragraph (ii) (see subsections (8) to (11)).
In this case, lands and heritages would need to have a rateable value of more than £5,000 in order for a penalty under subsection (4)(a) to exceed the £1,000 figure specified in sub-paragraph (i) of that subsection – again, though both the £1,000 figure and the percentage specified in sub-paragraph (ii) can be altered by regulations under subsection (8).
Finally, in this case, lands and heritages would need to have a rateable value of more than £2,000 in order for a penalty under subsection (5)(a) to exceed the £1,000 figure specified in sub-paragraph (i) of that subsection. Once again, though, both that £1,000 figure and the percentage specified in sub-paragraph (ii) can be altered by regulations under subsection (8).
