[2024] UKUT 24 (LC)

Fecha: 29-Ene-2024

Conclusions

Disposal

90.

For the reasons given above in relation to ground 1, I allow the appeal.

91.

It was suggested by Ms O’Leary that the matter should now be remitted to the FTT for it to determine the respondent’s original appeal against the penalties imposed on her for breaches of regulations 4 and 7.

92.

It would not be fair to the respondent to determine her appeal against the outstanding penalties without allowing her to give evidence about the management of the property and in support of her case that Covid 19 restrictions and the more intensive use of the property by her tenants provides either a reasonable excuse for some of the defects or at least material which should be considered in mitigation of the penalty. I therefore agree with Ms O’Leary that the appeal against the two final notices should be remitted to a differently constituted panel of the FTT for determination.

93.

When it considers the appeal against the final notice relating to fire safety deficiencies, the FTT should have regard to the matters identified in paragraph 1(a), (b) and (d|) of the schedule of works as particulars of the alleged offence. In her evidence (at paragraph 38) Ms Cooper states that the Council did not have regard to the wedged open kitchen door (item 1(c)) when it decided to impose the penalty. The FTT should also note that the allegation in paragraph 1(a) is confined to the intermittent bleeping from the fire detection installation (which, in her evidence, Ms Cooper attributed to the backup batteries in a mains powered fire detection system having run out). The schedule of work does not refer to the disabled detector heads which were discussed by Ms Cooper with the respondent on the telephone and then remedied, and I do not consider that they can properly be regarded as falling within the scope of the allegation on which any penalty can be based. Similarly, the FTT should consider whether the fire escape route from the room whose door was blocked by a sofa can reasonably be said to have been through the blocked door, rather than through the room’s second door which led to the garden.

94.

When it considers the allegations which relate to the regulation 7 final notice, the FTT should treat the matters identified in paragraph 2(b) and (d) of the schedule of works as the relevant particulars of the offence. In her evidence Ms Cooper states that the items in paragraph 2(a) and (c) were not relied on when the penalties were assessed. Ms Cooper relied additionally on a failure to provide test certificates in a timely manner as an offence. That allegation should be disregarded as regulations 4 and 7 do not require a manager to produce test certificates.

95.

On that basis I remit the appeals to the FTT for determination by a differently constituted panel.

Martin Rodger KC,

Deputy Chamber President

29 January 2024

Right of appeal

Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.