26/11/2025

Ultra Vires NDR Evidence Demands

The Association of Scotland’s Self-Caterers (ASSC) has written to the Scottish Assessors Association (SAA)

“I am writing on behalf of the Association of Scotland’s Self-Caterers to formally reiterate our position that the current evidence demands being imposed on self-catering operators go beyond the powers granted to assessors under the Council Tax (Dwellings and Part Residential Subjects) (Scotland) Amendment Regulations 2021 and 2024 and are therefore ultra vires and unlawful.

The regulations establish two clear statutory tests only:

The property must be intended to be made available for letting on a commercial basis, with a view to profit, for at least 140 nights in the financial year.
The property must be actually let for 70 nights or more in the financial year.

While assessors are entitled to request evidence sufficient to confirm whether these tests are met, the legislation does not prescribe the type, form, or volume of evidence to be provided. It simply requires that evidence be sufficient and submitted within the statutory timescale if requested. By mandating specific categories of documentation such as bank statements, itemised booking income, tariff structures etc, the current approach imposes requirements which are not supported by statute and extend far beyond what the law authorises.

This approach represents a disproportionate intrusion into private and commercially sensitive information while creating a significant administrative burden on compliant businesses. It also risks establishing an unlawful precedent where additional conditions are effectively created through practice rather than through legislation. As one ASSC member, who spent eight years as an auditor of FTSE 100 companies, has observed: “I spent 8 years as an auditor, auditing FTSE 100 companies, and never once did I do 100% transaction testing!” This comparison clearly illustrates the excessive and unreasonable nature of the current evidential expectations.

In light of this, we consider the present requirements to be legally unsound. Unless these evidence demands are immediately reviewed and brought back into alignment with the statutory tests set out in the regulations, we will be forced to instruct solicitors to initiate a formal legal challenge to their lawfulness.

We would strongly encourage the SAA to revisit its current evidential guidance and operational practice as a matter of urgency. Our strong preference is to resolve this through constructive engagement and lawful compliance rather than through formal litigation. We remain open to dialogue in order to achieve a proportionate, legally robust and fair approach for all parties.”

We look forward to written confirmation that these concerns are being addressed and that evidence requests will be revised accordingly.