[2023] UKUT 263 (LC)

The concept of totality is perhaps of most critical importance in the context of custodial sentencing and in the choice between concurrent and consecutive sentences: will this defendant spend five years or ten years in prison? Two or three medium-length sentences for identical or similar offences when added together may mean that an offender would spend most of the rest of his life in prison, and that will often be obviously inappropriate. The same stark choice does not arise where the penalty is purely financial, and the local authority or the court is looking at the financial resources of the individual offender, which may be small or great, rather than at the common human life-span. The search for a just and proportionate sentence may lead the local housing authority or the court not to impose separate penalties for two or more separate offences where the total would be disproportionate to the landlord’s resources or perhaps to the value of the property, but it has not been suggested that that is the case here. Totality does not in itself require that where there are two or more separate but identical offences only one should attract a civil penalty.

A further factor that distinguishes the civil penalty context from the criminal application of the totality principle is that where there are several offences in question they may carry very different sentences. Where the defendant is going to be sentenced to, say, ten years for street dealing in class A drugs there is really no point in adding for example a sentence of a few months for possession of another substance, and the lesser offence can be addressed either by imposing no separate penalty or by a concurrent sentence. That sort of disparity is less likely to arise in the context of housing offences where local housing authority, and the FTT on appeals, will be looking at financial penalties which will often be of similar amounts, none exceeding £30,000, so that there is no single stand-out offence which may well reflect the overall criminality of the landlord. Nevertheless the Tribunal in Sutton v Norwich City Council [2020] UKUT 90 (LC) imposed no separate penalty for the offence of failing to display the contact details of the manager in the common parts of the property, where the appropriate penalty would have been £100; the Tribunal took the view that the addition of that sum to the other penalties, together amounting to tens of thousands of pounds, would have been pointless. No such argument is available here.

A further difference from the criminal context may be the fact that the local housing authority has a considerable discretion as to how many civil penalties to impose. In the present case one can see the sense in serving separate improvement notices for each flat even though the same work – new kitchen and suitable heating – was required in each, because circumstances may change as regards different flats (as happened here when at least three were vacant by the time the respondent came to assess compliance). The respondent then had a choice as to whether to impose one civil penalty or two, and it chose to impose two. It also had a choice whether to impose one penalty or several for the breaches of HMO regulations; it chose to impose one. So decisions had been made about totality before the respondent, and later the FTT, began to consider the amount of the penalty.

In the light of what I have said above it is difficult to see how there could be an argument that only one penalty should be imposed in respect of the two section 30 offences. They were different offences in respect of different flats and therefore in respect of different tenants. The argument would be obviously very weak had the two flats been in separate buildings and they are equally weak in reality where two identical offences were committed in respect of two flats in the same building. It is worth noting that it was pretty much by chance that the same work was required in each flat; the argument would have been obviously hopeless had the work left undone in each flat been different.

This ground of appeal therefore fails.