[2023] UKUT 292 (LC)

The appellant sought permission to appeal in an email from Mr Thompson which raised a number of issues. The FTT divided these into 7 discrete points and gave permission to appeal on only one, while refusing the rest. The appellant requested this Tribunal to grant permission to appeal on the grounds refused by the FTT and I directed that that request, and the appeal on all grounds for which permission was granted, included the one permitted by the FTT, would be considered at a single hearing.

The substance of the first and second grounds of appeal was that, as Mr Thompson put it: “The tribunal totally ignored the fact that we could not gain access to repair the alarm in Flat 2”. This was relied on both as regards the issue of compliance with the improvement notice and on the assessment of culpability.

The FTT had refused permission to appeal on both those aspects of the application, and its reasons, given on 7 July 2023, are informative. As to the suggestion that it had been misguided in finding that the improvement notice had not been complied with, the FTT said this:

“Despite some mitigation, which was not found to amount to a ‘reasonable excuse’, the evidence was that the improvement notice expired on 23 November 2021 and the only matter which had been resolved by Ms Dunbar’s visit on 7 December 2021 was the fixing of the handrail to the cellar. All other items in the improvement notice therefore remained outstanding, and the applicant had not complied with its requirements ‘within the time limit set’.

The FTT also rejected the suggestion that they had ‘totally ignored’ the difficulties of gaining access to Flat 2, saying this:

“This is incorrect, as the tribunal specifically made allowance for these difficulties in reducing the level of ‘culpability’ [paragraph 54(c)] and reduced the score from 15 points to 6.”

The single ground of appeal for which the FTT granted permission concerned what it regarded as “an anomaly in the Government Guidance on Civil Penalties, Point 5.01d – ‘Track record of the offender’, which states that, where the individual has previous convictions from the same type of offence: - “For 1st offences, a score of 10 points will be added …”. The FTT considered that anomaly ought to be reviewed by the Upper Tribunal “because it may have a significant impact on the final score and upon the appropriate bracket for level of penalties.”

The remaining grounds of appeal expressed the appellant’s dissatisfaction with a number of aspects of the FTT’s decision. In particular in relation to the penalty points imposed in respect of the “falls on stairs” hazard as to which the appellant complained:

“… again it is impossible to keep the stairs clear if the occupiers will not cooperate. We have no control over this and cannot be expected to inspect the stairs on a daily basis. The inspector mentions on a final visit to the property that the stairs was clear of obstructions. We are doing our best to keep the stairs clear of obstruction, as such the three points awarded for this should be removed.”

The FTT refused permission to appeal on this ground, saying that the hazard had not been properly dealt with, neither Mr Thompson nor any agent of his had access to the common parts, and the Council’s evidence was that “some obstructions had remained in the same place throughout the proceedings”.

Although the FTT identified seven issues in the appellant’s grounds of appeal the application appeared to me to raise only three questions which need to be determined: