Local taxes for second homes and self-catering accommodation

17 June 2022 

Dear ,

LOCAL TAXES FOR SECOND HOMES AND SELF-CATERING ACCOMMODATION CONSULTATION (16133) INTERNAL REVIEW

I have conducted an internal review of the Welsh Government’s (WG) decision to: 

Decision 1. 

Withhold copies of advice provided to Ministers and a record of their responses on changes to the council tax premium in connection with the consultation from 6 May 2021 

Decision 2.  

Not to provide information on which councils supported passing legislation to raise premiums above the current 100% and which were against.

Information in relation to decision 1. 

In relation to the information requested my decision is to uphold the original decision.  You raised two main objections to the original decision; firstly, the applicability of section 36 exemption to this case and secondly that the public interest test has not been properly applied. 

The applicability of the Section 36 exemption to this information request

Section 36 of the Freedom of Information Act allows the refusal of a request for information where disclosure would or would be likely to: 

• inhibit the free and frank provision of advice, or 
• inhibit the free and frank exchange of views for the purposes of deliberation, or otherwise prejudice the effective conduct of public affairs

To engage the section 36 exemption in this case, the Counsel General as a ‘Qualified Person’ gave his reasonable opinion about the engagement of section 36.

I am satisfied that the Counsel General took account of the specific facts and circumstances of this case before reaching his decision.  In applying the test of ‘reasonableness’ I have applied the plain meaning of the word -if it is an opinion that a reasonable person could hold – then it is reasonable. It does not have to be the only reasonable opinion that could be held on the matter. 

For clarity I have set out the prejudices or inhibitions below together with the assessment of the likelihood of prejudice or harm which, I apologise, should have been included in our original response to you. 

Section 36 (2)(b)(i) would, or would be likely to, inhibit the free and frank provision of advice 

• Officials are expected to provide comprehensive briefing to Ministers which reflects the views of all those involved.  Disclosing the advice of officials may question Ministers intentions to conscientiously consider responses when finalising policy decisions. Ministers are entitled to make a decision which is not compatible with the majority’s view but need confidence to rely on the services and support of officials without any concern that information provided, consulted, or relied on may be compromised by being revealed at a later date.  

• Officials would be less candid in the advice they provide. This would likely lead to less rigorous and in-depth exploration of options and advice being provided to Ministers. Resulting in less comprehensive policy with the potential to do unintended harm, leading to reputational damage to Ministers and Welsh Government.

The release of the information would be likely to inhibit the free and frank provision of advice

Section 36(2)(b)(ii) – would or would likely to inhibit the free and frank exchange of views for the purposes of deliberation

Disclosing the frank and challenging communications between Ministers would significantly undermine ministerial unity and effectiveness and result in less robust, wellconsidered or effective ministerial debates and decisions.

• Disclosing would prevent future open and honest discussions between Ministers leading to superficial deliberation which would undermine confidence in the ability of Ministers to scrutinise issues rigorously, resulting in less robust and effective outcomes.

The release of the information would be likely to inhibit the free and frank provision of views for the purposes of deliberation 

Section 36(2)(c) – would otherwise prejudice the effective conduct of public affairs 

• Policy development in relation to connected areas of local taxation is ongoing: this will include setting out plans for a review of council tax premiums as part of a wider council tax consultation to be held over the summer. That consultation is expected to be the first step in a series of consultations and actions to support the reform of the council tax

system. Releasing the information at this stage may prejudice the consultation processes and outcomes and further policy development. It may also distract official, political, media and public attention from these processes and from addressing the issues identified.

• Policy development in relation to other areas of the Welsh Government’s three-pronged approach to dealing with the issues arising from the impact of large numbers of second home and holiday lets on certain communities and the availability of affordable housing is still ongoing. These developments span a number of different Ministerial portfolio interests and are expected to involve the coordinated integration and phasing of a suite of complementary interventions. Releasing the information at this stage may prejudice the formulation and development of these policies and undermine public confidence in the consultation processes and outcomes. Releasing the information could also lead to the disruption and less effective coordination of the expected package of interventions, reducing their overall impact in tackling the issues identified.

If this information were to be released it would be likely to prejudice the effective conduct of public affairs in that it could lead to confusion and ill-informed debate, public scrutiny, speculation or interpretation on the possible direction of matters.

The application of the public interest test 

Once the ‘qualified person’ has confirmed the exemption is engaged, then as Section 36 is a qualified exemption the WG must carry out a public interest test to decide whether the public interest in maintaining the exemption outweighs the public interest in disclosure. My assessment of the balance of public interest, and drawing on the public interest arguments in your email of 24 May is set out in the table below: 

Public interest in maintaining  the exemption	Public interest in disclosure
The significant inbuilt weight of public interest in maintaining the effective conduct of public affairs and avoiding the likelihood of prejudice or harm. The harms, as outlined above, are:  inhibiting the free and frank provision of advice. inhibiting the free and frank exchange of views for the purposes of deliberation otherwise prejudice the effective   conduct of public affairs.	General argument for transparency and a public interest about the issue the information relates to.   Public interest in releasing the advice provided to Ministers and their subsequent reasoning for their decisions to ensure justice and fair treatment for all and effective decision making.
Policy development in relation to local taxation, the impact of large numbers of second homes and holiday lets on certain communities, and the availability of affordable housing is ongoing, and the advice is still ‘live’, in the sense that it is still being relied on.	The issue in question is no longer live  as the policy has been decided so an exemption should no longer be applied.
Similar information is already available in the public domain.  Such as the policy rationale for the decision on council tax premiums as is the summary of responses to the consultation which has been published.  Further the regulations which enable local authorities to increase the maximum level of council tax premiums were scrutinised and approved through the affirmative procedure in the Senedd.   The regulations were accompanied by Explanatory Memorandum. Part 2 of the EM sets out the likely costs and benefits of the regulations.   The further release of information would not significantly inform public debate about this policy or its future impacts	A public interest in this policy decision that has a widespread or significant impact on the public at large in Wales, not just those who own a second home, but on the communities within which second homes are based, there is a strong public interest in furthering open and informed debate on the issue.   Public interest in fully understanding the reasons for the Senedd’s decision given the controversial nature of this decision and to evidence on what basis this decision has been arrived at A public interest in providing legal certainty with respect to future impacts this decision will have on individuals, local property markets, and those seeking to purchase property in Wales.

Weighed in the round, I consider on balance that the Welsh Government was correct to withhold the requested information as the public interest arguments to release the information are outweighed by the public interest arguments to withhold this information. 

Point 2 

In relation to point 2 you requested information on which councils supported passing legislation to raise premiums above the current 100% and which were against. In our previous response we told you that “we do not hold this information in the format you have requested”. This response should have been clearer, and I would like to take this opportunity to clarify that the Welsh Government does not hold this information in any form. Where a public authority does not hold the information requested, the Freedom of Information Act does not oblige them to obtain it from a third party.

Next steps

If you are dissatisfied with the Welsh Government’s handling of your request, you also have the right to complain to the Information Commissioner. The Information Commissioner can be contacted at:  Information Commissioner’s Office,

Wycliffe House
Water Lane
Wilmslow
Cheshire 
SK9 5AF.

Yours Sincerely 

Bethan Bateman 

Deputy Director 

Covid Recovery & Local Government Group

 

11 May 2022

Dear

ATISN 16133 – Consultation on local taxes for second homes and self-catering accommodation

Information requested

You requested:

1. A response from each of the category of respondees set out in the summary of responses.
2. Gwynedd Council's response to the consultation.
3. A response from a Council that does not support raising the maximum level of premiums to 300%. 
4. Which councils supported passing legislation to raise premiums above the current 100% and which were against.
5. Copies of advice provided to Ministers and a record of their responses on changes to the council tax premium in connection with the consultation from 6 May 2021.

Our response

Points 1-4

I wrote to you on 27 April disclosing the information for Points 1-4.

Point 5

I have decided that the information described in Point 5 is exempt from disclosure under Section 36 of the Freedom of Information Act 2000, specifically:

Section 36(2)(b)(i) – inhibiting the free and frank provision of advice;

Section 36(2)(b)(ii) – inhibiting the free and frank exchange of views for the purposes of deliberation;

Section 36(2)(c) – otherwise prejudice the effective conduct of public affairs.

The reasons for applying the exemptions are set out at Annex 1 to this letter.

Next steps

If you are dissatisfied with the Welsh Government’s handling of your request, you can ask for an internal review within 40 working days of the date of this response.  Requests for an internal review should be addressed to the Welsh Government’s Freedom of Information Officer at:

Information Rights Unit 
Welsh Government
Cathays Park
Cardiff
CF10 3NQ. 

or Email: Freedom.ofinformation@gov.wales

Please remember to quote the ATISN reference number above.   

You also have the right to complain to the Information Commissioner.  The Information Commissioner can be contacted at: 

Information Commissioner’s Office 
Wycliffe House
Water Lane
Wilmslow
Cheshire 
SK9 5AF.

However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.

Yours sincerely

 

Annex 1

I have decided to withhold the following information. 

Information being withheld	Section number and exemption name
Copies of advice provided to Ministers and a record of their responses on changes to the council tax premium in connection with the consultation from 6 May 2021.	Section 36(2)(b)(i) – inhibiting the free and frank provision of advice Section 36(2)(b)(ii) – inhibiting the free and frank exchange of views for the purposes of deliberation Section 36(2)(c) – otherwise prejudice the effective conduct of public affairs

This Annex sets out the reasons for the engagement of Section 36 of the Freedom of Information Act and our subsequent consideration of the Public Interest Test. 

Section 36 is a public interest tested exemption. This means that in order to withhold information under it, the public interest in withholding must outweigh that in releasing.

Public Interest arguments in favour of disclosing

The Welsh Government acknowledges the general public interest in openness and transparency that release of information engenders.

Public Interest arguments in favour of withholding

Section 36 (2)(b)(i) would, or would be likely to, inhibit the free and frank provision of advice

The timely provision of information and advice to Ministers on topics and issues on a range of matters is a key role of officials. There is concern that public disclosure of the information would be likely to inhibit the free and frank provision of views to Ministers and open discussions between Ministers during the early stages of thinking or at a future point in time where a policy has been developed and a decision is sought. It is normal practice for officials to provide advice and exchange views in an open and frank way, and to explore various options. It is believed that disclosure of information would mean that future discussions would be likely to be inhibited in that officials would be less candid, would be likely to lead to less rigorous and in-depth exploration of options and this in turn would harm the Welsh Government’s deliberations resulting in less robust and effective outcomes.

When formulating policy it is important that officials and Ministers are able to express themselves openly so there can be a full consideration of advice and views before any decisions are reached. If discussions are inhibited when formulating and implementing policy, there is a real risk that the advice provided to Ministers will be less comprehensive since it will not reflect the full range of views expressed by officials and Ministers. As part of the decision‑making process Ministers will expect comprehensive briefing which reflects the views of all those involved.

Section 36(2)(b)(ii) – would or would likely to inhibit the free and frank exchange of views for the purposes of deliberation

During the deliberative process it is important that those involved can express themselves openly so that there can be a full consideration of different points of view before any final decision is reached.

Some exchanges may contain significantly different points of view regarding the work under consideration. The disclosure of this information would be likely to inhibit the open expression of views when considering whether to take forward options and recommendation when formulating and implementing policy in relation to council tax premiums. For example, if officials can no longer be assured their opinions will remain private, they may seek to be more circumspect in what they express for fear of being misinterpreted. This would be likely to lead to a narrower range of discussions taking place between participants as they seek to be more guarded in what they express.

Formulating and implementing council tax policy requires Ministerial agreement. If discussions are inhibited at the formative stage, there is a real risk that the advice provided to Ministers will be less comprehensive since it will not reflect the full range of views expressed by officials. As part of the decision-making process, the Minister will expect comprehensive briefing which reflects the views of all those involved in consideration of formulating and implementing policy. This will not be possible if, at any stage of the development or implementation of policy, officials have been restricted in what they are able to say.

Section 36(2)(c) – would otherwise prejudice the effective conduct of public affairs

Advising Ministers is a fundamental role of the civil service. This can be in the context of Ministers being required to make a decision or for information purposes.

In providing briefing and information to Ministers, officials provide formal and informal advice in relation to a new decision relating to policy, operations, legislation or any other matter. 

In order for the formal or informal advisory process to function properly, officials must be able to conduct themselves in a frank and open way where ideas and views can be expressed within a ‘safe space’ environment.

The information withheld provided advice, options and recommendations to Ministers as well as the exchange of opinions between Ministers in the formulation and implementation of council tax premium policy. If this information were to be released it would be likely to prejudice the effective conduct of public affairs in that it could lead to confusion and ill‑informed debate, public scrutiny, speculation or interpretation on the possible direction of matters.

Release would also negatively impact the ‘safe space’ environment which a government requires in order to develop ideas or make decisions, consider live issues and reach decisions away from external interference and distraction. Further, erosion of this ‘safe space’ may lead to a loss of frankness and candour on behalf of officials if they believed their early policy considerations or opinions would be exposed to public scrutiny at an early stage which in turn could damage the quality of advice and lead to poorer decision making.

Balance of Public Interest test

I consider that the public interest arguments to withhold the requested information outweigh the public interest arguments to release the information. I believe that the information should be withheld on the basis that its release would be likely to prejudice the effective conduct of public affairs.

The decision on council tax premiums and the rationale for the decision has been made public. The summary of responses to the consultation was published on 1 March and the policy intention was made clear through an announcement on 2 March. The regulations to effect the decision to increase the maximum level at which local authorities may choose to set council tax premiums were scrutinised and approved through the affirmative procedure in the Senedd on 22 March. The regulations were accompanied by the relevant explanatory material. The regulations amend the discretionary powers available to local authorities to apply a council tax premium. It will be for individual authorities to determine whether to apply a premium and at what level, taking account of the potential impact in their areas.

Policy development in relation to connected areas of local taxation is ongoing, as is policy development in relation to other areas of the Welsh Government’s three-pronged approach to dealing with the issues arising from the impact of large numbers of second home and holiday lets on certain communities and the availability of affordable housing.

 

 

27 April 2022

 

Dear

 

ATISN 16133 – Consultation on local taxes for second homes and self-catering accommodation

Information requested

Thank you for clarifying your request which I received on 7 April. I have taken this to mean you asked for:

1. A response from each of the category of respondees set out in the summary of responses.
2. Gwynedd Council's response to the consultation.
3. A response from a Council that does not support raising the maximum level of premiums to 300%. 
4. Which councils supported passing legislation to raise premiums above the current 100% and which were against.
5. Copies of advice provided to Ministers and a record of their responses on changes to the council tax premium in connection with the consultation from 6 May 2021.

Our response

I confirm we hold some of the information relating to your request.

Point 1

You asked for a response from each of the category of respondees set out in the summary of responses. An anonymised response for each category is at Annex 1. We are in the process of collating all the consultation responses into a format suitable for distribution and this will be available in due course.

Point 2

You asked for Gwynedd Council's response to the consultation. Gwynedd Council’s consultation response is included in the consultation responses provided in Annex 1 to this letter. Their response is provided for the Local Authority category.

Point 3

You asked for a response from a Council that does not support raising the maximum level of premiums to 300%.  We do not hold this information in the format you have requested. The consultation did not specifically ask for views on whether respondents did or did not support raising the maximum level of premiums to 300%.

Point 4

You asked which councils supported passing legislation to raise premiums above the current 100% and which were against. We do not hold this information in the format you have requested. The consultation did not specifically ask for views regarding passing legislation to raise the premium above the current 100%.

Legislation to increase the maximum level at which local authorities can set council tax premiums on long-term empty dwellings and dwellings occupied periodically in their areas to 300% was made by the Welsh Ministers on 22 March 2022. Further information about The Council Tax (Long-term Empty Dwellings and Dwellings Occupied Periodically) (Wales) Regulations 2022 is available at the link below:

SL(6)167 - The Council Tax (Long-term Empty Dwellings and Dwellings Occupied Periodically) (Wales) Regulations 2022 (senedd.wales)

Point 5

You asked for copies of advice provided to Ministers and a record of their responses on changes to the council tax premium in connection with the consultation from 6 May 2021.

Whilst I can confirm the Welsh Government holds information of this description, we are considering if it is exempt from disclosure under Section 36 of the Freedom of Information Act 2000, specifically:

Section 36(2)(b)(i) - inhibiting the free and frank provision of advice;

Section 36(2)(b)(ii) - inhibiting the free and frank exchange of views for the purposes of deliberation

Section 36(2)(c) – otherwise prejudice the effective conduct of public affairs.

The Freedom of information Act provides a right for anyone to ask a public authority to make requested information available to the wider public. As the release of requested information is to the world, not just the requester, public authorities need to consider the effects of making the information freely available to everybody. Any personal interest the requester has for accessing the information cannot override those wider considerations.

I will write to you again when a determination has been reached.

Next steps

If you are dissatisfied with the Welsh Government’s handling of your request, you can ask for an internal review within 40 working days of the date of this response.  Requests for an internal review should be addressed to the Welsh Government’s Freedom of Information Officer at:

Information Rights Unit 
Welsh Government
Cathays Park
Cardiff
CF10 3NQ. 

or Email: Freedom.ofinformation@gov.wales

Please remember to quote the ATISN reference number above.   

You also have the right to complain to the Information Commissioner.  The Information Commissioner can be contacted at:  Information Commissioner’s Office,

Wycliffe House
Water Lane
Wilmslow
Cheshire 
SK9 5AF.

However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.

Yours sincerely