[2023] UKUT 292 (LC)

The appellant appealed against the imposition of the financial penalty. The basis of the appeal in relation to the defective fire alarm in Flat 2 was that all its efforts to gain access to Flat 2 had been met with a complete lack of cooperation from the leaseholder. Attempts to arrange appointments to service the fire alarm had been ignored and, when an engineer had attended to carry out work, he had been unable to gain access to Flat 2. The basis of the appeal in relation to the items obstructing the cellar staircase and the means of escape was that these belonged to the leaseholder of Flat 2 who had failed to remove them in response to requests and who had retrieved them from the cellar when Mr Thompson and his contractors had put them there. Mr Thompson asserted that realistically there was nothing he could do to ensure that the staircase was permanently kept clear of items which one individual chose repeatedly to return there.

Mr Thompson attended the appeal hearing before the FTT and explained that he lived 200 miles from Teignmouth where the appellant owned only two properties. He did not have a key to the building but had an arrangement with one of the leaseholders that they would carry out any necessary maintenance of the common parts. The appellant’s only source of funds was the service charge but none of the leaseholders were well off, and the charges were set according to how much they could afford. Collecting it was difficult and the leaseholder of Flat 2 had not paid for three years.

Mr Thompson also maintained that the fault shown on the fire alarm panel because of the defect in Flat 2 did not compromise the whole fire alarm system which functioned properly in the common parts and in the other two flats. He suggested that the integrated system fitted in the building was not normal for self-contained flats and was not a requirement of building regulations. His evidence concerning remedial works to the fire alarm in Flat 2 was recorded by the FTT as follows:

“… he had tried his best to comply with the improvement notice by repeatedly trying to arrange with Mr Collett for an engineer to attend the flat and repair that part of the system. Unfortunately the tenant (Mr Collett) had refused to cooperate and had made it impossible to gain access. [Letters exhibited at pages 48, 50, 51]. Mr Thompson said that if he could not get access, even though the lease might give him a power to enter to carry out repairs, there was little more he could do: court action against the tenant could cost up to £10,000 and he could not afford it.”

In relation to the presence of hazards on the stairs and in the common parts Mr Thompson’s evidence was recorded as follows:

“Mr Thompson stated that the items stored or placed on the staircases – both the main staircase in the common parts and the cellar staircase – were mainly put there by the tenant of flat 2. He claimed that he had cleared the stairs in response to the Improvement Notice but the tenant merely continued to put items there, despite written warnings [page 49]. Mr Thompson argued that it was impossible for him to ensure compliance because he lived 200 miles away.”

The Council’s housing officer gave evidence on its behalf. She disputed the suggestion that a fully integrated fire alarm was not required and emphasised the Council’s view that as freeholder Mr Thompson was responsible for the overall safety of the building and had sufficient powers under the lease “to require the works to be done”. As for the suggestion that the staircase and escape route had been cleared, only for the leaseholder of Flat 2 to block them again, she pointed out that some items appeared to have remained in the same place on each of her visits.

In its decision the FTT recited the evidence and submissions it had heard. It did not give itself any specific direction about the elements of the offence under section 30, 2004 Act, and made no reference to the statutory defence provided by section 30(4). Instead it structured its decision making around a list of issues contained in directions given by a procedural judge at an earlier stage of the proceedings.

The first of those issues, and the entirety of the FTT’s consideration and conclusion on it, appeared in paragraph 47 of the decision, as follows:

“Whether we are satisfied beyond reasonable doubt that a “relevant housing offence” has been committed (section 249A Housing Act 2004). In this case, despite some efforts to carry out the necessary works, we were satisfied that Mr Thompson had failed to comply with the Improvement Notice fully and/or within the timescale set.”

The first sentence was not an incorrect statement of what the FTT had to decide, but it was not a particularly helpful starting point. It was taken from what appears to be a standard form of directions and did not focus on the specific issues in this case, including in particular whether the appellant could establish that it had a reasonable excuse for failing to comply fully with the improvement notice (on that issue, of course, it was for the appellant to satisfy the FTT on the normal civil standard of proof).

In this part of its decision the FTT made no specific findings of fact about what the appellant had done (other than the general reference to “some efforts to carry out the necessary works”) and said nothing at all about its case that it had been unable to obtain access to carry out the work.

After deciding that the Council had complied with the relevant procedures for imposing the financial penalty (which the appellant had not disputed) the FTT next proceeded to consider the amount of the penalty to be imposed and whether it was set at an appropriate level having regard to a list of relevant factors identified in the Council’s policy.

The relevant factors that the FTT took into account included the severity of the offence. It confirmed the authority’s assessment that, as at October 2022, the level of fire hazard was “level 1 – major impact” while the risk of falls on stairs was “level 2 – serious impact” attracting 5 and 3 points respectively in the Council’s scoring system.

The FTT then considered the culpability of the appellant. It found that Mr Thompson had a casual attitude to statutory management requirements and had effectively abdicated his responsibility for maintenance of the building by not holding a key to the common parts. It acknowledged that he had been willing to address the issue once the improvement notice was served and had taken steps to reduce the risk from fire by purchasing temporary smoke detectors to address any immediate problem. The FTT went on:

“The evidence as a whole showed that initially the fire hazards may have arisen as a result of Mr Thompson’s negligence in failing to visit and ensure compliance with safety requirements, but latterly his genuine efforts to deal with the fire alarm had been foiled by the obstructive tenant in flat 2.

There was also evidence that Mr Thompson had tried to ensure that the tenants had cleared obstructions on the stairways, and that he had not ignored the local authority’s concerns in this respect. Similarly, the evidence was that contractors had repeatedly attended the premises and tried to resolve the damp problem from the leaking roof.

Although a number of assurances were given during the relevant period and there were delays and deadlines that were missed, the tribunal found that Mr Thompson’s failure to comply with the local authority’s requirement was not ‘deliberate’ or even ‘reckless’ but was somewhere between ‘negligent’ and ‘low culpability’. The notes as to ‘culpability of the offender’, …, specifically state that ‘low or no culpability’ may be found where there is some fault on the part of the landlord but there are other circumstances – for example obstruction by the tenant to allow a contractor access for repairs…’

The tribunal thus disagrees with the [Council’s] categorisation of culpability as ‘reckless’ with a score of 15 points, and categorised it instead as ‘negligent/low culpability’, with a score of 6 points.”

The next topic in the Council’s list of relevant considerations was the appellant’s “track record and previous offences (if any)”. Under the Council’s policy the minimum score which can be attributed to this category is 10. The FTT found no evidence of any previous offences and continued:

“The tribunal could not see the logic of applying an additional ‘10 points’ for an offender who had no track record and no previous offending. It would seem far more logical for a landlord who did have a previous offence to be given a score of 10 points on the next occasion, and 20 points thereafter. Nevertheless the guidance notes appear to confirm that this is the system and the tribunal did not seek to challenge it. There was no suggestion that Mr Thompson had ever offended previously, and therefore the tribunal simply confirmed the arbitrary position for this category of 10 points”.

The scoring exercise undertaken by the FTT reduced the Council’s score of 53 points to 34 points which, applying the Council’s policy, attracted a penalty of £5,000.