[2024] UKUT 24 (LC)

After a hearing at which the respondent was represented by her solicitor and which she attended, the FTT handed down its decision on her appeal on 16 November 2022.

At the hearing the FTT had first invited submissions on the validity of two of the three notices of intent and had then informed the parties that it considered them to have been invalid. It confined its consideration of other issues to the third notice, which is not the subject of this appeal.

In its decision, the FTT explained what it considered was required of a valid notice of intent (which it referred to as an “NOI”). At paragraph 35 it described the legislation as providing for “a criminal penalty” requiring proof of an offence beyond reasonable doubt. Therefore:

“An appellant is entitled to know precisely what allegation is being made against them in the NOI, to enable the representation process to be as effective as possible; clear allegation met by apposite representation; it is akin to counts on an indictment or a charge sheet. To provide specific information is to know the allegation, and it is not adequate to rely on previous correspondence, which might have been had up to six months before, and when the nature of the works and allegations may well (and usually does) evolve over time; had it [the schedule of works] been attached or referred to as the detailed allegations made therein, the matter could have been different.”

At paragraph 36 the FTT contrasted the “sparse detail” given by the Council in the notices of intent with the final notices and pointed out that no explanation had been suggested for this difference. It was not sufficient to rely on a schedule of works issued at the end of October 2021 as providing particulars of offences in notices of intent issued in February 2022. An appellant was entitled to have clarity over what she was being accused of, which was not achieved by these notices of intent. Although the FTT accepted that the allegations concerning overcrowding had been included in error, they had “muddied the waters”. The FTT also criticised the Council for failing to explain properly why it considered that a financial penalty was the most appropriate course of action in this case (there was other formal or informal action the Council could have taken, including prosecution or issuing a warning). The information it had provided in paragraph 4 of the notices of intent did not explain anything. The FTT concluded that the procedure in paragraphs 3 to 8 of Schedule 13A had not been complied with by the Council and that the notices of intent and the final penalty notice were therefore invalid and should be struck out.

The remainder of the decision related to the third financial penalty imposed in respect of the delay in supplying an EICR report. The respondent did not dispute that there had been a breach of the relevant regulation and her challenge was to the quantum of the penalty, which the FTT reduced from £2,500 to £500.