[2023] UKUT 118 (LC)

In Sutton v Norwich City Council [2021] EWCA Civ 20, Newey LJ reviewed authorities casting light on the approach which an appellate court or tribunal should take to an appeal against an assessment of a civil penalty imposed under section 249A, 2004 Act. He said this, at [30]-[31]:

“Where the decision of a lower Court or Tribunal involved evaluation or the exercise of a discretion, an appellate Court or Tribunal is not entitled to interfere merely because it might have come to a different conclusion. In G v G (Minors: Custody Appeal) [1985] 1 WLR 647, Lord Fraser said at 652 that an appellate Court should interfere with an exercise of discretion only if it considers that the judge of first instance “has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which reasonable disagreement is possible”. In Abela v Baadarani [2013] UKSC 44, [2013] 1 WLR 2043, Lord Clarke spoke at paragraph 23 of an appellate Court interfering with a value judgment based on the evaluation of a number of different factors only “if satisfied that the judge erred in principle or was wrong in reaching the conclusion which he did”. In R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47, [2018] 1 WLR 4079, Lord Carnwath said this at paragraph 64 in the context of a challenge to a proportionality assessment:

“The decision may be wrong, not because of some specific error of principle in that narrow sense, but because of an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. However, it is equally clear that, for the decision to be ‘wrong’ under CPR r 52.11(3), it is not enough that the appellate court might have arrived at a different evaluation.”

31.

A Tribunal’s decision as to what civil penalty it should impose for either a breach of the 2007 Regulations or failure to comply with an improvement notice involves, as I see it, both evaluation and discretion. An appellate Court/Tribunal is not, accordingly, entitled to overturn a penalty just because it thinks it would have imposed a different one. To interfere, the Court/Tribunal must conclude that the decision under appeal was an unreasonable one or is wrong because of ‘an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion’.”

The appeal in Sutton did not concern a banning order or the HMO Management Regulations but was against substantial civil penalties imposed for breaches of a different part of the network of regulations governing the licensing and management of HMOs. Nevertheless, the description of the function of an appellate tribunal when considering an appeal against a discretionary or evaluative decision of a lower tribunal is exactly in point. It follows that it is not for this Tribunal to consider whether the offences of which the appellant was convicted were sufficiently serious to justify the making of a banning order – that was the FTT’s job. In the absence of some error of law I may only set aside or interfere with the FTT’s decision if I am satisfied that there is some identifiable flaw in its reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of its conclusion.