[2023] UKUT 190 (LC)

On 20 February 2020 housing officers visited a house in Wisbech and came to the conclusion that it was an unlicensed HMO. There appeared to be nine people living there in six separate households, each occupying one room as their main residence. The Council’s officers also found a number of fire and safety deficiencies.

On 2 April 2020 the Council posted two notices of intent to impose financial penalties under section 249A, Housing Act 2004 to the property, addressed to Mr Naujokas, who was believed to be the person managing the HMO. The notices informed him of the Council’s intention to impose a penalty of £17,000 for breaches of the Management of Houses in Multiple Occupation Regulations 2006 and a further penalty of £7,000 because he was managing an unlicensed HMO. An improvement notice was also served by the same method.

Mr Naujokas was living at the property and received the three notices. He is from Lithuania and does not speak English. He took the notices to an advice centre and on 1 May 2020, through an interpreter, he telephoned the Council about them. The Council agreed to extend the time for him to make representations about the proposed penalty.

No representations were received by the Council and on 21 May 2020 it issued two final notices confirming the penalties proposed in the original notices of intent. These were sent by first class post addressed to Mr Naujokas at the property and at a second property in March with which the Council understood he also had connections.

Mr Naujokas says he did not receive the final notices addressed to him, and that that is why he did not exercise his right of appeal.

The following month the Council became aware that Mr Naujokas had moved to a different address in Wisbech and on 26 August 2020 it sent copies of the final notices to him at that address. Mr Naujokas says that he did not receive those notices either. At the hearing of the appeal Dr Van Dellen offered various suggestions why the final notices might not have been received by Mr Naujokas at any of the three addresses to which they were sent, but it is not necessary for me to express any view on them.

In December 2020, about eight months after he had received the original notices of intention, Mr Naujokas again sought advice. The circumstances in which he did so were not explained and, of course, his instructions to his counsel are privileged. But for whatever reason Dr Van Dellen sent a letter to the Council’s Head of Housing by email on 26 December 2020. In it he said that he had seen the three notices served on Mr Naujokas on 2 April 2020 (i.e. the two notices of intent and the improvement notice) and asked that they be withdrawn, because Mr Naujokas had been the tenant of the property and could not be liable for a licensing offence or responsible for fire safety defects. Dr Van Dellen did not ask for copies of any document and did not refer to the final notices.

Mr Brown, the Council’s officer responsible for the matter, responded with a lengthy email of his own on 5 January 2021. That email was not shown to the FTT, nor was it included in the bundle for the appeal hearing, but only emerged during the appeal in response to the Tribunal’s questions. In it Mr Brown explained that final notices imposing civil penalties totalling £24,000 had been served at the property and at the address in March on 21 May 2020. He also asked Dr Van Dellen to provide signed authorisation from Mr Naujokas so that the Council could communicate with him about the matter.

The Council’s request for a signed authorisation received no immediate response. More than a year later, on 19 February 2022, Mr Naujokas signed a letter confirming that Dr Van Dellen was indeed his representative. That was shortly after the Council had transferred the matter to a debt recovery firm who sent a number of letters to Mr Naujokas demanding payment of the outstanding penalty. Those letters were not shown to the FTT or produced on the appeal, but I was told that one sent on 3 February 2022 referred to the date the final notice had been served and the amount of the penalties.

Although Dr Van Dellen had Mr Naujokas’ authority to communicate with the Council, he did not do so for a further five months. On 20 July 2022 he lodged a notice of application (an appeal) with the FTT against the penalties and it was only when the FTT asked for copies of the notices that Dr Van Dellen responded to the Council’s request of 5 January 2021 by sending the authorisation. The explanation for these long delays which Dr Van Dellen gave at the hearing was that communication with Mr Naujokas is always difficult because instructions have to be taken through an interpreter.

The Council sent copies of the final notices to Dr Van Dellen on 29 July 2022. It is Mr Naujokas’ case that that was the first occasion on which he or his representative had received them.

The file was shown to the FTT Judge, and on 19 August 2022 a member of staff wrote to Dr Van Dellen pointing out that the notice of application appeared to be more than two years late. She referred to the FTT’s power to extend time but pointed out that the delay was extreme and that the Judge proposed to strike the application out. She then continued:

“The applicant may make representations to the tribunal as to why the proceedings should not be struck out. These must include an explanation for the delay. Any representations must be made by 31 August 2022 after which the file will be passed back to the Judge.”

The response to that invitation came on 14 September 2022 in the form of an email from Dr Van Dellen. He said this:

“The reason that the appeal has been filed is that the respondent was requested to provide a copy of the notices. These were only provided by the respondent on 29 July 2022. Any prejudice that has been caused to the appellant by the respondent only providing these notices on 29 July 2022, rather than prejudice caused to the respondent. Further or alternatively, it is in the interest of justice for the appellant to be granted an opportunity to appeal the notices, as the respondent is seeking to enforce the notices.”

In a separate email sent on 17 September 2022 Dr Van Dellen suggested that the time for appealing should run from 29 July 2022, the date the final notices were said first to have been received.

The Council provided the FTT with a certificate of service confirming that the final notices had been posted on 21 May 2020.