[2023] UKUT 139 (LC)

The background can be simply stated. The appellant is the owner of 1037A Forest Road, London E17 4AH. It is a ground floor flat, and was let in May 2015 to a Mrs Muza who remains the tenant to this day. The property is within an area where there is a selective licensing scheme in operation under Part 3 of the Housing Act 2004, and so must be licensed under section 85 of that Act. The respondent had a licence for the property from July 2015 until it expired on 31 March 2020. He failed to apply for a new licence until October 2021 despite reminders from the appellant. In September 2021 the appellant informed the respondent of its intention to issue a civil penalty of £6,000 (pursuant to section 249A of the Housing Act 2004); on 22 November 2021 the respondent issued a final notice, reducing the penalty by 20% to £4,800 because of the receipt of the licence application in October.

The level of penalty was set by the appellant in accordance with its enforcement policy – a policy that it has developed in compliance with government guidance (Civil Penalties under the Housing and Planning Act 2016: Guidance for Local Housing Authorities (April 2018)). In accordance with that policy and on the basis of the information it held about the respondent the appellant regarded his offence as one committed by a landlord controlling five or fewer dwellings and therefore as a “moderate band 2 offence” attracting a civil penalty of at least £5,000.

The respondent appealed that penalty to the FTT under paragraph 10(1) of Schedule 13A to the 2004 Act. Paragraph 10 of that Schedule goes on to provide:

“ (3) An appeal under this paragraph—

(a)

is to be a re-hearing of the local housing authority's decision, but

(b)

may be determined having regard to matters of which the authority was unaware.

(4)

On an appeal under this paragraph the First-tier Tribunal may confirm, vary or cancel the final notice.

(5)

The final notice may not be varied under sub-paragraph (4) so as to make it impose a financial penalty of more than the local housing authority could have imposed.”

The appeal to the FTT is a re-hearing. If the FTT is satisfied beyond reasonable doubt that the offence has been committed then it may impose a penalty. The decision as to the level of the penalty is the FTT’s own, but the local housing authority’s own enforcement policy remains crucial to its decision on the level of penalty. In Waltham Forest LBC v Marshall [2020] 1 WLR 3187 (LC) the Tribunal took a tour of the authorities relevant to judicial decisions about matters on which the primary decision-maker was a public authority with a policy. It concluded as follows:

“The court can and should depart from the policy that lies behind an administrative decision, but only in certain circumstances. The court is to start from the policy, and it must give proper consideration to arguments that it should depart from it. It is the appellant who has the burden of persuading it to do so. In considering reasons for doing so, it must look at the objectives of the policy and ask itself whether those objectives will be met if the policy is not followed. …

55.

Nothing in these cases, or in the present appeals, detracts from the court's or a tribunal's ability to set aside a decision that was inconsistent with the decision-maker's own policy. Nor have the above cases said anything to cast doubt upon the ability of a court or tribunal on appeal to substitute its own decision for the appealed decision but without departing from the policy. … It goes without saying that if a court or tribunal on appeal finds, for example, that there were mitigating or aggravating circumstances of which the original decision-maker was unaware, or which of which it took insufficient account, it can substitute its own decision on that basis.”

A video hearing of the appeal to the FTT took place on 9 August 2022. In its decision following that hearing, dated 31 August 2022, the FTT said at its paragraph 18:

“Both parties attended the hearing, The Appellant was joined by his son Mr Arfan Ahmed, who largely spoke on his father’s behalf. The Respondent was represented by Mr R Calzavara of counsel.”

The FTT then went through the evidence, including evidence about the condition of the property. It said:

“32.

The Appellant was asked whether he had any other properties in Waltham Forest. He said that he had a few others, and then said that he had 3 others. He and his son appeared very unclear as to the precise addresses of these properties. Eventually they identified three specific properties which, they said, also had selective licences.”

Later the FTT said:

“When asked to further clarify what properties he owned, the Appellant disclosed that he also had a property in Lewisham and several properties in Birmingham, the latter being managed by agents. Again, he and his son appeared very unclear as to the actual addresses of those properties.”

The FTT went on to state that it was satisfied beyond reasonable doubt that the offence had been committed; it rejected a defence of reasonable excuse. As to the level of the penalty to be imposed, Mr Calzavara argued that a higher penalty should now be imposed. The appellant’s policy states that where a landlord controls or owns “a significant property portfolio” the failure to licence is viewed as a “band 4 offence” and attracts a civil penalty of £15,000 or above, and Mr Calzavara argued for a penalty on that level.

The FTT declined to increase the penalty, saying:

“56.

Whilst the Tribunal accepted that it had the power to increase the penalty imposed, it decided that it would not be appropriate to do so on this occasion. It considered that as the Appellant was unrepresented it would not be fair to consider such a course without giving him time to consider his position and an opportunity to take advice.”

The appellant appeals that decision, with permission from the FTT. The Tribunal in giving directions in the appeal said that two issues were raised, namely:

The Tribunal directed that the hearing would be a review of the decision of the FTT; that meant that there was no scope for further evidence to be adduced by either party as to the number of properties owned by the respondent.