[2023] UKUT 118 (LC)

The remaining grounds of appeal are weak.

Mr Auld took issue with the FTT’s statement that the appellant had “flouted” her legal obligations. He submitted that “flouting” could not provide sufficient grounds for making a banning order. He also suggested that the FTT’s finding was inconsistent with its conclusion that the appellant had “no understanding of the scope of [HMO] Regulations”, since someone who did not understand their legal obligations could hardly be said to “flout” them. This appears to me to be a point of no substance. The FTT did indeed state, in the first line of its decision, that the appellant had “flouted her legal obligations”. It then proceeded over the following 45 pages to explain what it meant by that expression. By adopting the language of the Guidance the FTT was not in any sense modifying the statutory scheme or substituting the Guidance for the conditions in section 160. Nor can it seriously be suggested that a landlord who has been convicted of a number of housing offences and who has no understanding of the legal context in which they operate their business is not exactly the sort of landlord against whom banning orders were intended to be deployed.

Mr Auld next argued that the FTT had failed to deal with a point he had made about paragraph 11(2) of the HMO Management Regulations. This provides that any duty imposed by the Regulations to maintain or keep the property in repair is to be construed as requiring a standard of maintenance or repair that is “reasonable in all the circumstances, taking account of the age, character and prospect of life of the house and the locality in which it is situated.” It was suggested to Mr Riddell, the Council’s housing officer, in cross examination that he was unaware of this part of the Statute, and Mr Auld suggested that this cast doubt on the conclusions of the magistrates. There are a number of answers to this criticism. First, the appellant pleaded guilty to the offences of which she was charged and it follows that any suggestion that the condition of her properties did not amount to a breach of the HMO Management Regulations is not open to her. Secondly, the transcript of the FTT hearing shows that Mr Riddell confirmed that he did have regard to regulation 11(2) when inspecting residential property (which is hardly surprising since it simply repeats in statutory form what is already implied at common law). Finally, the FTT is not required to deal with every point made in submissions and its refusal of Mr Auld’s invitation to conduct an investigation into the detailed facts of the offences, rather than relying on the facts admitted by the appellant, meant that this point fell by the wayside. I dismiss this ground of appeal for those reasons.

Mr Auld next argued that the FTT had been wrong to take into account the appellant’s track record of failing to implement proposals for improving the standard of management of her properties which she had made in order to buy off earlier threats of enforcement action. This ground of appeal is manifestly hopeless. Section 16(4) contains a non-exhaustive list of matters which the FTT may take into consideration. Three of those matters relate directly to the conduct of the people concerned and to enforcement action taken against them. If relevant evidence is available, it is obviously relevant for the FTT to consider what any previous dealings with a local housing authority suggests about a landlord’s willingness to comply with her legal responsibilities. In this case the FTT was therefore entitled to have regard to the appellant’s history of failing to comply with promises she had made (as when she had agreed to hand the management of her properties over to BPP but was then found to have by-passed and ignored them).

The next point taken by Mr Auld was, in effect, a challenge to the FTT’s finding of fact that the decision to seek a banning order had been made by Mr Mallinson, having read the report of Mr Riddell, which had been discussed by him with a number of his Council colleagues. Mr Auld submitted that the Council had not approached the consideration of the appellants’ representations with an open mind because all relevant decisions had been taken by Mr Riddell who was, in effect, judge and jury in his own cause. The short answer to that submission is that the FTT heard the evidence of Mr Riddell about his involvement and considered the documents, including the decision document signed by Mr Mallinson, before finding that the final decision had been Mr Mallinson’s and that the Council had given proper consideration to the appellant’s representations. It is not open to this Tribunal to go behind those findings of fact which the FTT was entitled to make.