[2023] UKUT 263 (LC)

Grounds 1 and 2 succeed and I have set aside all three civil penalties. Rather than remit the matter to the FTT I substitute the Tribunal’s own decision since there is enough material before me to do so. I remind myself that the Tribunal can make any decision that would have been open to the FTT to make, and that an appeal under paragraph 10 of Schedule 13A, Housing Act 2004 takes the form of a re-hearing.  The Tribunal must make its own determination of the appropriate penalty to be imposed, and must exercise its own discretion about mitigating factors and totality – albeit untrammelled either by the respondent’s rule that any mitigating factor may only make a difference of 5% or by the “final determinant” discussed under ground 2.

There is no appeal from the FTT’s agreement with the respondent that culpability in respect of each of these offences was high and the risk of harm was medium. I note that while the absence of proper heating in each flat was a category 1 hazard, the problem was that the heating was inadequate rather than that it was dangerous in itself; the kitchen was regarded by the local authority as a category 2 hazard. I agree with the assessment of harm as medium. Accordingly the starting point for each offence is £15,000.

For the reasons I explained above each penalty should be mitigated by the fact that Mr Kazi had done some of the works required by the improvement notices. How much mitigation is appropriate must depend not only upon the amount of work done but also upon the importance of the items left undone. In each case one of the category 1 hazards has been addressed (a trip hazard in flat 1; the external door in flat 4) but one remains, and a number of category 2 hazards have been addressed. The items left undone would probably have been the most expensive. I apply a discount of 25% to each penalty.

In addition, for the reasons explained, each penalty should be mitigated by the role the tenants played in either causing the disrepair or making it difficult to do the work. I apply a further discount of 20% (of the £15,000) to each penalty.

There is no further step to be taken to ensure that Mr Kazi does not profit from the offences as he still has to do the work. There is no double-counting because these are two separate flats and two separate offences.

Accordingly the penalty for each of the two the section 30 offences stands at £8,250; I go on to consider the section 234 offence and then to look at the application of the totality principle in respect of all three.

Again the starting point is £15,000 as there has been no suggestion that that starting point is incorrect.

It is more difficult to assess the level of discount to be allowed on the basis that some of the work has been done than it was in the case of the two flats and the section 30 offences. My sense is that rather less of the work had been done; but the whole is unknown because the respondent was not able to gain access to all the flats. It is also difficult to assess the extent to which the tenants were responsible for the disrepair to the common parts.

Moreover there is or may be in the case of this offence an element of double-counting, because in its schedule of the work required to be done to remedy this offence (referred to by the FTT at its paragraphs 44 and 45) the respondent included the renewal of the kitchens in all the flats and a new door for flat 4 – all of which has already been penalised in the section 30 offences as far as flats 1 and 4 are concerned. I say “is or may be” because the notice of intention and the final notice in respect of the section 234 offence did not specify exactly what was to be done, but it appears that the respondent regarded that offence as being comprised of the matters referred to in the improvement notice in respect of the common parts together with some at least of the work required in the individual flats.

There is no readily calculable answer; taking into account some double-counting and the elements of mitigation referred to above I impose a penalty of £10,000 in respect of the section 234 offence.

So as things stand there are three penalties to be paid, of £8,250 for the two section 30 offences and £10,000 in respect of the section 234 offence, making a total of £26,500.

Where mitigation is given proper weight, and where care has already been taken to avoid double counting there is less scope for argument that the whole is unjust or disproportionate. The FTT does not appear to have been presented with evidence of Mr Kazi’s means, and I take it from his own statement that he owns numerous properties that his means are considerable. None of the offences is trivial by comparison with the others; and there is no reason to regard the total as a disproportionate penalty for the very bad state of this property. Accordingly I make no further adjustment in the operation of the totality principle.

The appeal succeeds, and I have substituted the Tribunal’s own determination of the three civil penalties: £8,250 for each of the two section 30 offences and £10,000 for the section 234 offence and the Tribunal will make an order accordingly.