[2023] UKUT 263 (LC)

Section 249A of the Housing Act 2004 enables a local housing authority to impose a financial penalty, often referred to as a civil penalty”, upon a person if they are satisfied beyond reasonable doubt that he or she has committed any of the housing offences listed in that section, as an alternative to prosecution. Among the offences listed are the offence under section 30 of the 2004 Act of failure to comply with an improvement notice, and the offence under section 234 of the 2004 Act of failure to comply with HMO regulations. The maximum amount of a single civil penalty is £30,000, but an individual may be subject to more than one penalty amounting in aggregate to more than the maximum (Sutton v Norwich City Council [2020] UKUT 90 (LC)). Paragraph 12 of schedule 13A to the 2004 Act states that the local housing authority must have regard to any guidance given by the Secretary of State about civil penalties; such guidance was issued in 2018, entitled Civil penalties under the Housing and Planning Act 2016, Guidance for Local Housing Authorities.

Paragraph 10 of Schedule 13A to the 2004 Act makes provision for appeal to the First-tier Tribunal against the decision to impose a civil penalty and the amount of that penalty. The appeal is a re-hearing and the FTT is to make its own decision whether to impose a penalty and about the amount of the penalty.

In making that decision the FTT must give special regard to the local housing authority’s enforcement policy and will normally follow it. But it is not bound by that policy. In London Borough of Waltham Forest v Marshall [2020] UKUT 35 (LC) the Tribunal discussed the relevant authorities and said:

“54… The court can and should depart from the policy that lies behind an administrative decision, but only in certain circumstances. The court is to start from the policy, and it must give proper consideration to arguments that it should depart from it. It is the appellant who has the burden of persuading it to do so. In considering reasons for doing so, it must look at the objectives of the policy and ask itself whether those objectives will be met if the policy is not followed.

55.

Nothing in these cases, or in the present appeals, detracts from the court's or a tribunal's ability to set aside a decision that was inconsistent with the decision-maker's own policy. Nor have the above cases said anything to cast doubt upon the ability of a court or tribunal on appeal to substitute its own decision for the appealed decision but without departing from the policy … It goes without saying that if a court or tribunal on appeal finds, for example, that there were mitigating or aggravating circumstances of which the original decision-maker was unaware, or which of which it took insufficient account, it can substitute its own decision on that basis.””

That guidance was approved by the Court of Appeal in Sutton v Norwich City Council [2021] EWCA Civ 20.

It is a principle of administrative law that a public body may not adopt a policy that has the effect of “fettering its discretion”; that means, in the present context, that it must not adopt a rigid policy that deprives it of the ability to consider the merits of the case and reflect them in its decision. The classic authority is R v Port of London Authority ex p Kynoch [1919] 1 KB 176. The FTT is likely to depart from a local housing authority’s policy if it has that effect.