[2023] UKUT 292 (LC)

Mr Thompson did not refer to section 30(4), 2004 Act in his evidence and submissions to the FTT or in his grounds of appeal. He might have done so, since the Council’s final notice stated that the offence in respect of which the financial penalty was being imposed on the appellant was that of failing, without reasonable excuse, to comply with an improvement notice. But the FTT’s directions of 7 February 2023 which identified the issues for consideration and to which evidence should be directed did not mention the statutory defence. If those directions are a standard template for these cases then consideration might be given to providing a clearer statement of the relevant housing offence and, where appropriate, drawing attention to the existence of the statutory defence.

The fact that Mr Thompson did not refer, in terms, to the defence did not absolve the FTT of the need to consider it. His evidence clearly raised the issue of whether the appellant had a reasonable excuse for its failure to comply fully with the improvement notice in relation to the only matters the Council took into account when imposing the financial penalty. I repeat what I said in I R Management Services Ltd v Salford City Council [2020] UKUT 81 (LC), at [31]:

“I would add, finally, that the issue of reasonable excuse is one which may arise on the facts of a particular case without an appellant articulating it as a defence (especially where an appellant is unrepresented). Tribunals should consider whether any explanation given by a person managing an HMO amounts to a reasonable excuse whether or not the appellant refers to the statutory defence.”

The same issue was also raised in the grounds of appeal when Mr Thompson complained both that the FTT had “totally ignored” the fact that he could not gain access to repair the alarm in Flat 2, and that it was “impossible to keep the stairs clear if the occupiers will not cooperate”. Mr Thompson reiterated those points in his oral submissions.

In his submissions on behalf of the Council Mr Ward acknowledged that the FTT had made no reference in its decision to the existence of the statutory defence, nor was there any indication in the decision that the availability of the defence had been considered. He nevertheless submitted that the FTT had considered the facts on which the appellant relied when it dealt with the issue of culpability; it said specifically that the evidence showed the Mr Thompson’s “genuine efforts to deal with the fire alarm” had been “foiled by the obstructive tenant in Flat 2” and that he had “tried to ensure that the tenants had cleared obstructions from the stairway”.

I agree that the FTT seems to have accepted Mr Thompson’s evidence about the steps he took; in giving its account of the appellant’s case it recorded his repeated written communications with the leaseholder of Flat 2 about access and about items stored in the common parts and it did not say that it disbelieved his evidence. But what the FTT did not do was to ask itself specifically whether the denial of access by the leaseholder of Flat 2, his refusal to remove objects from the common parts when asked to do so, and his restoring of those same objects to their original position when they had been removed by the appellant, amounted to a reasonable excuse for not having achieved full compliance with the improvement notice by 7 December 2021, that being the date specified in the financial penalty notice as the date of the offence.

Only when it refused permission to appeal did the FTT refer to the issue of reasonable excuse, saying that there was “some mitigation, which was not found to amount to a ‘reasonable excuse’”. There are a number of difficulties in treating that reference as sufficient consideration of the statutory defence. It appeared in the refusal of permission to appeal for the first time and was not part of the FTT’s original reasons, nor was it included by way of further explanation of something in the original reasons. It did not state, in clear terms, that ‘reasonable excuse’ had been considered as a defence. It did not say what facts provided mitigation without amounting to a reasonable excuse and it did not explain why those facts did not provide a defence. Its only reference to specific facts was in answer to the complaint that it had ‘totally ignored’ the difficulties of gaining access to Flat 2, and it rebutted that accusation by saying that it had taken account of those difficulties by reducing the level of culpability; it did not say that it had taken account of them for the purpose of considering whether they provided a complete defence.

Even taking account of the terms in which the FTT refused permission to appeal, it is not possible for the appellant, or the Tribunal, to be confident that proper consideration was given to its reasonable excuse defence in relation either to the fire hazard or to the fall on stairs hazard. If the FTT did consider and reject the defence on either of those limbs of the improvement notice, it gave no reasons explaining its thinking.

Mr Ward submitted that even if the difficulties of gaining access to Flat 2 were capable of amounting to a reasonable excuse which ought to have been dealt with specifically by the FTT, the other remedial action required by the improvement notice was to be taken in the common parts of the building, by removing the items stored on the escape route and at the top of the cellar stairs. The required condition had not been achieved and the FTT was therefore right to find that an offence had been committed by the appellant. But in my judgment that conclusion would only be justified if, assuming the relevant facts in the appellant’s favour (since the FTT made no specific findings of fact) those facts are incapable of amounting to a reasonable excuse for the presence of the items in the hallway and at the top of the cellar stairs. I do not think it is possible to reach that conclusion.

The evidence was that the items stored in the common parts had been removed to the cellar and instructions had been given to all of the leaseholders not to return them, but that those instructions had been ignored by the leaseholder of Flat 2. Mr Ward submitted that compliance with the improvement notice required the appellant to make regular inspections (at the leaseholders’ expense) to remove any items which had been returned and, if necessary, that it should have sought an injunction (again at the leaseholders’ expense) to prohibit the leaseholder of Flat 2 from doing so again. He acknowledged that those steps were not listed in the improvement notice and, if required, could not have been completed within the time allowed by the notice, or by 7 December, the date on which the offence was said to have been committed. Whether it was reasonable for the appellant not to take those steps, and whether the behaviour of the leaseholder provided a reasonable excuse for non-compliance, are matters of judgment which depend on the context and which are not obviously capable of only a negative answer.

I therefore reject Mr Ward’s submission and I find that the FTT’s failure to give proper consideration to the defence of reasonable excuse requires that the appeal must be allowed and its decision set aside.