[2023] UKUT 118 (LC)

On behalf of the appellant Mr Auld made three points about the FTT’s approach to the requirement in section 16(4)(a) that it consider the seriousness of the offence. He first suggested that the FTT had wrongly treated all banning order offences as sufficiently serious to justify the making of an order. Secondly, he submitted that the FTT had been wrong to rely on its own experience in forming the view that the level of fines imposed for these offences indicated that they were serious. Finally, and more fundamentally, he submitted that it was the duty of the FTT to “assess” the seriousness of the breaches of the HMO Management Regulations on the basis of the evidence placed before it. It had been wrong, as Mr Auld put it, for the FTT to “delegate to the Magistrates Court the decision whether the offences were serious or not”. Had it carried out its own assessment Mr Auld suggested that the FTT “should have concluded that the offences were not sufficiently serious to justify the making of a banning order.”

The first of these criticisms can be disposed of quickly. The part of the FTT’s decision against which it is directed was a discussion of a submission recorded at paragraph 101 to the effect that the banning order offences identified in the 2018 Regulations should be ranked in order of seriousness with contraventions of the HMO Management Regulations at the bottom of the range. The FTT said that it understood the appellant’s case to be that “convictions for offences under the 2006 Regulations were not sufficiently serious to merit the imposition of a banning order”. It then referred to statements made in Parliament when the 2018 Regulations were introduced, and to a statement in the Guidance that “all banning order offences are serious”. Despite these references it is clear that the FTT did not consider that all banning order offences merited a banning order. At paragraph 104 it stated that “as a starting point, the respondent’s convictions for banning order offences, including her breaches of the 2006 Regulations, should be treated as serious offences which might warrant a banning order.” That direction demonstrates two matters which undermine Mr Auld’s submission: first, that the FTT had in mind the particular offences of which the respondent had been convicted (“her breaches”); and secondly that it regarded those convictions as “a starting point” which “might” justify a banning order. In my judgment that direction, and the rejection of the proposition that breaches of the HMO Management Regulations would never be serious enough to merit a banning order, were legally correct and involved no error of law or other flaw.

The second complaint is that the FTT relied on its own experience of penalty levels without informing the parties what that experience was or allowing them the opportunity to comment on it. The context of this complaint is that the level of the fines was debated during the hearing. The Council contended that they were set at a high level notwithstanding being discounted for guilty pleas while the appellant herself regarded them as “excessive”. Mr Auld had suggested that the level of fines “reflected low to medium culpability”. In resolving this dispute the FTT said that it had applied its “general knowledge and expertise” when accepting the Council’s submission that the fines were “at the upper level”. It also considered that the seriousness of the offences was “aggravated” by the fact that the appellant committed similar offences at three different properties between July and September 2020. It adopted the language of the Guidance when, at paragraph 111, it said that a total fine of £22,000 for the offences was “a severe sentence which reflected the seriousness of the respondent’s offending.”

In my judgment there was nothing inappropriate in the way the FTT made its assessment. As a specialist tribunal dealing regularly with housing enforcement cases it is to be expected that the FTT panel (and the panel in this case was particularly experienced) would have come across many examples of fines imposed by magistrates for housing offences. Making use of that experience to calibrate the offences in this case on a scale of seriousness was part of the FTT’s everyday function. Both parties limited their observations on the level of the fines to bare assertions, and neither advanced any evidence or referred to any sentencing guidelines or to the levels of fines imposed for other offences. In those circumstances there was little the FTT could do other than explain that, based on its own experience, the fines were at the high end for housing offences. That did not involve reliance on specific evidence which had not been referred to at the hearing, nor was it a fact-finding determination, either of which would have required that the parties be given an opportunity to comment. Rather, it was an example of a specialist tribunal making use of its general (rather than specific) knowledge and expertise accumulated in determining similar cases and deploying it quite appropriately to come to a judgment on an issue in dispute.

In order to understand the appellant’s third point under this ground of appeal it is necessary to refer in more detail to the FTT’s decision.

The parties’ rival positions on the approach the FTT should take to its consideration of the seriousness of the offences were recorded at paragraphs 80 and 84 of the decision.

The Council contended that the seriousness of the offences should primarily be measured by the amount of the fines imposed by the magistrates, and that a total penalty of £22,000 for eight offences “reflected the serious nature of the offences”. It also referred to events predating those which gave rise to the prosecutions, and to subsequent enforcement action, all of which were recorded in some detail in paragraph 83. Apart from those matters putting the offences themselves in context, the Council appears to have based its case on the seriousness of the offences on the record of the convictions themselves and on the quantum of the fines.

In contrast, Mr Auld is recorded as submitting that “it was for the Council to demonstrate that the appellant had committed the most serious offences”, which was a “high hurdle” which it had not cleared. He argued that some breaches of the HMO Management Regulations were trivial and that the offences of which the appellant had been convicted were “minor and cosmetic” with the possible exception of the two missing fire doors. The respondent’s evidence about these contraventions was referred to in paragraphs 87 to 89 where reference was also made to the Council’s recognition that, individually, the convictions were not of the most serious offences in terms of their potential to cause harm.

Mr Auld also directed the FTT to the decision of a different panel, Telford and Wrekin Council v Hussain, in which a landlord had been convicted of banning order offences for which fines of only £180 for each offence had been imposed by magistrates. The FTT in that case had said that:

“the severity of the sentence is not a determinative factor for the present purposes. It is for the tribunal to assess the seriousness of the offences based on the evidence available to it.”

Mr Auld submitted to the FTT that that was the approach which it should follow.

The FTT disagreed with Mr Auld’s suggested approach. It explained that his proposition that the appellant’s offences were “minor” down-played the importance of the HMO Management Regulations. They applied to all HMOs whether requiring to be licensed or not (with few exceptions) and were designed to push up standards and to be the means by which poor day to day management was addressed in the statutory scheme as a whole.

The FTT next referred to “a more fundamental difference”:

“Counsel argued that the tribunal should make its own assessment of the seriousness of the offences based on all the circumstances and not be swayed by the sentence imposed by the magistrates which, in Counsel’s view, had no weight in law because the penalty imposed by the magistrates was no more than their opinion.

“The tribunal demurs from the approach advocated by Counsel. Effectively, Counsel was inviting the tribunal to re-open the case heard by the magistrates and start with a blank canvass. This cannot be correct on various levels. First the respondent had an opportunity to challenge the facts before the Court but chose to plead guilty. Second the respondent had the right to appeal to the Crown Court against the sentence but decided not to pursue it. The tribunal observes that the respondent was legally represented throughout the Court proceedings. Third the legislation and the 2016 Guidance give weight to the sentence in determining the seriousness of the offence. This is supported by the wording of the 2018 Regulations which exclude housing offences carrying a sentence of an absolute or conditional discharge from being banning order offences, and by the wording of [3.3] of the 2016 Guidance which states: “The more severe the sentence imposed by the Court, the more appropriate it could be for a banning order to be made.”

The FTT said that it was not assisted by the Telford and Wrekin case, pointing out that the very low fines imposed in that case had required the panel to consider for itself whether the offences were sufficiently serious to warrant a banning order. It went on:

“Where this Tribunal differs from the other tribunal is the scope of the enquiry to confirm or otherwise the seriousness of the offences as indicated by the sentence imposed by the magistrates. This tribunal maintains that it is not correct as part of its enquiry into the seriousness to re-open the case before the magistrates and undermine the conviction and sentence particularly where the offender has participated fully in those proceedings.”

Mr Calzavara pointed out that the FTT is not required to “determine” or “assess” the seriousness of the offence but instead is required by section 16(1) to “consider” its seriousness. The material provided by the parties will form the basis of that consideration, but the weight which the FTT places on different aspects of that material is a matter for it. In my judgment it would certainly be entitled to disregard or give limited weight to the level of fines imposed if it considered that they were an inadequate or incomplete reflection of the seriousness of the offence, or if it simply disagreed with the magistrates’ assessment. But the FTT would also be entitled to give considerable weight to that assessment, as it did in this case. There is nothing in the Act which directs the FTT to adopt one approach or the other when it “considers” the seriousness of the offence and provided it has done so when determining whether to make a banning order it will have carried out the exercise Parliament intended. That is enough to dispose of this ground of appeal.

Additionally, however, I draw a number of further conclusions from the FTT’s decision.

First, contrary to Mr Auld’s submission, it did not base its consideration of the seriousness of the offences exclusively on the levels of fines imposed on the appellant. While it did not refer to the facts of the offences themselves in the same detail as it devoted to the other evidence of the quality of the appellant’s management, that was because it took the facts relevant to the offences as having been admitted by the appellant by her guilty plea. It clearly had the facts of the offences in mind.

Secondly, in concluding that the offences were serious, the FTT was accepting the submission made on behalf of the Council. The Council is the body responsible for the enforcement of housing standards and the prosecution of offences and is ideally placed to comment on the relative severity of different penalties imposed by magistrates. The FTT was entitled to give weight to the Council’s view of the level of the fines.

Thirdly, the FTT also gave weight to the Guidance and to the Council’s policy, both of which treated the sentence imposed as a guide to the relative seriousness of offences. As the FTT itself pointed out, by excluding from the definition of a banning order offence any offence for which the sentence imposed was an absolute or conditional discharge, the 2018 Regulations also recognise that the level of penalty imposed is an appropriate reference point.

Fourthly, the proposition which the FTT rejected was an extreme one, namely, that no weight whatsoever should be given to the sentence imposed and that it should in effect “reopen the case before the magistrates”. In my judgment the FTT was right not to entertain the invitation to begin with a blank canvass and assess for itself whether the offences were serious. The appellant’s evidence sought to place the blame for her contraventions of the HMO Management Regulations on other people and circumstances (the tenants occupying the HMOs, the quality of her contractors’ workmanship, the difficult of obtaining contractors due to Brexit and the Covid pandemic, and on advice given by the Council itself). Any of those matters could have provided grounds for the statutory defence of reasonable excuse and a submission to the magistrates that no offences had been committed at all. The time to determine whether the elements of the offence were proven was at the criminal trial, not when the FTT came to consider the seriousness of the offences.

I therefore reject both the proposition that the FTT were not entitled to have regard to the fines imposed by the magistrates, and the proposition that, in doing so, the FTT in this case impermissibly sub-contracted the necessary consideration of the seriousness of the offences to the magistrates.