[2024] UKUT 24 (LC)

In support of the appeal Ms O’Leary first stressed some propositions derived the Tribunal’s decision in Younis. At [48] the Tribunal stated that appeals against financial penalties are civil proceedings which do not import criminal procedure, notwithstanding that they offer an alternative to prosecution and the facts which amount to the commission of an offence must be proved beyond reasonable doubt. No form of notice had been prescribed, nor would it be possible to be prescriptive about the contents of the reasons which must be stated, given the variety of circumstances in which civil penalties may be imposed. The purpose of requiring an authority to state its reasons was so that the recipient could respond with their own representations, and what was required of a notice of intent was that it provide a sufficient account of the authority’s reasons for proposing the penalty “to enable the recipient to understand what conduct or omission is being said to amount to the offence which has been identified”.

Pausing there, it should not be thought that, in stressing that these are civil rather than criminal proceedings, the Tribunal was implying that a lax approach to compliance with procedural requirements was acceptable. As the passage from which that observation was taken makes clear when read as a whole, the point which was being made was that financial penalty proceedings are governed by tribunal rules and import the tribunal’s overriding objective of dealing with cases fairly and justly. That requires that the recipient of a notice of intent should not be subjected to substantial financial penalties (often much higher than those which would be imposed by a criminal court for the same offence) without being given fair warning of the case against them and a fair opportunity to respond to it. In this respect, civil and criminal practice do not operate by reference to different standards of transparency. Moreover, as the criminal case of Nash, referred to in paragraph [24] above,illustrates, while a “wide and vague” statement of a charge will not be sufficient for the purpose of a criminal summons, a summons which is defective in that way will not render the subsequent proceedings a nullity or any resulting conviction unsafe, provided that the requisite information was given to the recipient in good time to enable them to be able fairly to meet the case against them.

Ms O’Leary submitted that the FTT had been wrong to regard the notices of intent as inadequate, and it should have found that they provided a sufficient statement of the Council’s reasons. Both notices identified the property concerned, the name of the intended recipient, her relevant capacity (licence holder, owner and person managing), the particular regulation which was said to have been breached in each case (regulations 4 and 7), the statutory provision which made it an offence to commit that breach (section 234), the provision under which the financial penalty was proposed as an alternative to prosecution (section 249A), and the amount of the proposed penalty. In each case the statement of the offence was sufficient to identify the conduct or omission said to amount to the relevant offence and to identify the date on which it was said to have been committed, 27 October 2021. There was therefore substantial or adequate compliance with the requirement to state the Council’s reasons and the notices of intent were valid.

The FTT had erred, Ms O’Leary suggested, when it said that a notice of intent must state the allegation “precisely” so that the recipient’s representations could be “as effective as possible”.

I do not believe it is productive to compare the terms used by different decision makers to describe the requirements of a sufficient notice of intent. What is important is that the notice should equip the recipient with the information they require to enable them to answer the charge against them. In my judgment the only important distinction is between a notice which achieves that purpose and one which does not.

How precise or particular the contents of a notice must be to achieve that requirement will depend on the circumstances of the case which may include the recipient’s knowledge of other facts. As Lord Steyn explained in Mannai Investment Co Ltd v Eagle Star Life Assurance Co. Ltd [1997] AC 749, at 767D, the validity of a notice is to be assessed objectively, by asking how a reasonable recipient would have understood it. In considering that question the reasonable recipient is taken to be aware of what Lord Steyn called “the relevant objective contextual scene”. That scene will include matters known to the actual recipient which would influence their understanding of the notice. Those matters are taken to be within the knowledge of the notional reasonable recipient.

Thus, if a notice of intent contains a mistake, such as a reference to the wrong address for an HMO or an incorrect date for an inspection at which offences were observed, the mistake may be sufficient to confuse some recipients but not others. It may be obvious to a reasonable person who manages only one HMO or who was in attendance at the inspection and knows the date it took place what information the notice is intended to convey. The manager of a large estate of HMOs may not find it so easy to understand what is being alleged against them by an inaccurate notice of intent. An obvious mistake which does not mislead the intended recipient of a notice which otherwise provides a sufficient statement of the reasons it has been served will not render the notice a nullity.

In this case the notices of intent were not inaccurate in the information they conveyed. They suffered from a different defect, namely that they were vague and did not clearly identify the facts which amounted to the offence being alleged. Both pinpointed the offence and the location and date at which it was alleged to have been committed, but the only description of the regulation 4 offence was that “numerous fire safety deficiencies were identified at the premises”, while the regulation 7 offence was described only as “poor management and disrepair, and poorly maintained deficiencies”.

If notices in this form had been the only material available to the recipient, I would have had no doubt that they were incapable of informing her in sufficient detail of what it was that was being alleged against her, and the requirements of paragraph 3 of Schedule 13A that a notice of intent must set out the authority’s reasons for proposing a financial penalty would not have been met. Regulation 4 covers a range of subjects from ensuring all means of escape are free from obstruction and maintained in good order and repair, maintaining fire alarms and fire fighting equipment, ensuring notices are displayed, taking all measures reasonably required to protect occupiers from injury, preventing access to unsafe roofs or balconies, and barring windows. A notice alleging “numerous fire safety deficiencies” could cover any or all of those matters and, without clarification, the recipient would be left guessing which deficiencies the Council was referring to (although they might appreciate that the complaint was specifically about something to do with fire safety). Similarly, regulation 7 covers maintaining common parts in repair, and in safe working condition and free from obstruction, and extends to a catalogue of specific features including handrails and bannisters, stair coverings, means of ventilation, light fittings, common appliances, outbuildings, yards, gardens, boundary walls and fences. To be told that the Council had observed “poor management and disrepair” would leave the recipient in ignorance of the case against them, a state which would not be relieved by trying to work out what “poorly maintained deficiencies” could possibly mean.

The description of the facts of the alleged offence contained in each of the notices added little if anything to the identification in the notices of intent of the statutory provisions which were alleged to have been breached. Viewed in isolation, that would not be good enough to enable the recipient to know what they were being accused of, or to enable them to seek advice and make an informed response.

But the notices of intent did not contain the only information available to the respondent. She had spoken to Ms Cooper on the day of her inspection, 27 October, and had been informed what Ms Cooper had observed. She had also been told to replace the missing detector heads within 24 hours, which she appears to have done. On 29 October she received Ms Cooper’s letter of that date by email enclosing the schedule of works and the photographs of each of the defects. The letter was headed with a reference to the 2004 Act and to the 2006 Regulations and began with a reference to Ms Cooper’s inspection on 27 October and a statement that “at the time of the inspection the property did not meet the standards prescribed by the above legislation”.

The schedule of works served with the letter of 29 October began with a statement that “the deficiencies listed are considered as legal requirements” and required that the remedial measures identified should be undertaken within the stipulated time. The first part of the list was headed “Fire safety” while the second was titled “Regulation 7 maintain common parts”. Each defect was then clearly identified and remedial action specified.

The FTT had no complaint about the information supplied in the schedule of works and it considered that the notices of intent might have been valid if the schedule had been referred to in them (“had it been attached or referred to as the detailed allegations made therein, the matter could have been different”). I agree that that would have been a compliant approach. But I do not agree that the notices were rendered defective because they did not repeat or refer to the detailed information supplied on 29 October. While it is true that almost four months elapsed between the schedule of condition and the notices of intent, it can hardly be suggested that the respondent would have forgotten about the schedule. She took prompt steps to carry out the scheduled work and completed it by the end of the year. She knew that the Council wished to interview her under caution about the condition of the property. When she received the notices of intent, she was informed that the offences were said to have been committed on 27 October.

Any reasonable person with the knowledge available to the respondent would, in my judgment, have been in no doubt that the fire safety deficiencies observed by the Council’s officer on 27 October and referred to in the regulation 4 notice were the same deficiencies as had been listed in the first part of the schedule of works of 29 October. Similarly any reasonable person would have understood that the issues concerning poor management and disrepair referred to in the regulation 7 notice were those identified in the second part of the schedule of works.

Nor is there any evidence that the respondent did not understand that that was what the notices of intent were referring to. I am left in no doubt that she would have been in a position to identify the defects and, had she wished to do so, to respond effectively to them on the basis of the information in the notices of intent and the material sent to her on 29 October. In her expanded grounds of appeal addressed to the FTT she later admitted that “deficiencies were found at the property”. By that time, of course, she had received the final notices which contained much more detail, but that detail was the same detail as had been provided in the schedule of work.

In my judgment, therefore, the notices of intent were not invalid and complied with the requirement that they set out the Council’s reasons for proposing the financial penalties. They depended for their validity on the detailed information contained in the schedule of work and the selection of photographs served earlier but, in the circumstances of this case, I do not consider that the lapse of time made any difference or that the notices lacked clarity by reason of it.

The FTT considered that the Council should have explained why it had decided to propose a financial penalty rather than a different course of action, such as a prosecution or an informal disposal. I do not think it is necessary to provide that information, although it might be sensible to do so if there is some particular reason which influenced the Council’s thinking and on which it would wish a tribunal considering an appeal to place particular weight.