[2024] UKUT 24 (LC)

When drafting the notices of intent it would have been a straightforward matter for officers to transpose the deficiencies recorded in the note of their discussion into the Council’s standard notice of intent template, but that was not what they did.

The first notice was addressed to the respondent, describing her as the “prospective licence holder, owner and person managing” the property. It informed her that the Council intended to impose a civil penalty of £20,000 under section 249A and Schedule 13A, 2004 Act. Under the heading “Reason” the following explanation was given:

“3.

The reasons for proposing to impose a Financial Penalty are failure to comply with the following legal requirement: The Housing Act 2004, Houses in Multiple Occupation Management Regulations 2006 Regulation 4 offences contrary to section 234 of the Housing Act 2004.

Because: during a routine Licenced House of Multiple Occupation inspection on 27 October 2021 numerous fire safety deficiencies were identified at the premises.

4.

The Council considers the service of a Financial Penalty as the most appropriate course of action for the following reasons. The Housing and Planning Act 2016 specifies that the amount of penalty imposed is to be determined by the Local Housing Authority but must not be more than £30,000.

5.

In determining the amount of penalty to be issued in this instance, the Authority has considered evidence relating to matters of this case and consulted governmental guidance. Specifically, we have taken into account:

•

The severity and seriousness of the offence/s.

•

The culpability and past history of the offender.

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The harm caused to the tenant/s.

•

That the penalty should act as a deterrent to repeating the offence.

•

That the penalty should remove any financial benefit obtained as a result of committing the offence.

6.

In particular, the Authority has considered:

•

You let the property to unrelated tenants and were aware that the property was occupied by five occupants in four unrelated households.

•

In order to fall outside of licensing requirements there should be no more than four residents in the property.

•

You took no steps to reduce numbers in the property.

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You did not approach the “Council” for a house of multiple occupation exemption for the period the property became licensable.”

The notice of intent concluded by inviting the respondent to make written representations within 28 days and suggested she might wish to take advice. Attached to the notice were notes setting out the text of section 249A and paragraphs 1 to 4 of Schedule 13A, 2004 Act. The notes did not refer to regulation 4 of the 2006 Regulations, which might have been more useful, but full copies of the Regulations had previously been supplied to the respondent by the Council on a number of occasions, most recently in June 2019.

The second of the notices of intent served on 2 February 2022 informed the respondent of the Council’s intention to impose a financial penalty of £1,000 for breach of regulation 7 of the 2006 Regulations. The reasons given were in the same form as in paragraph 3 of the first notice, substituting regulation 7 for the reference to regulation 4, and then providing the following explanation:

“Because: During a routine Licenced House of Multiple Occupation inspection on 27 October 2021 there was poor management and disrepair, and poorly maintained deficiencies were identified at the premises.”

The remainder of the second notice was in identical terms to the first, as quoted above.

The respondent did not reply to the notices of intent.

On 17 March 2022 the Council served three final notices confirming the financial penalties which had been proposed in the three notices of intent. This time, however, the Council provided considerable detail concerning its reasons for imposing the penalties.

The first of the three notices listed the deficiencies in fire precautions which the Council considered to be breaches of regulation 4 of the 2006 Regulations, dividing them into three categories and incorporating the text of the relevant part of the regulation breached in each case. Thus, the first category referred to the missing smoke and heat detector heads, the missing fire blanket and the fact that no valid fire alarm test certificate had been available at the inspection on 27 October 2021, and stated that these were breaches of regulation 4(2) (fire fighting equipment and fire alarms to be maintained in good working order). Next, it was said that a protected fire escape route was obstructed by excess furniture, boxes and a large rolled carpet, all in breach of regulation 4(1)(a) (ensuring means of escape are free from obstruction). Finally, the first floor emergency light did not illuminate when isolated from the lighting circuit and there was no valid emergency lighting test certificate, both of which were said to be breaches of regulation 4(1)(b) (means of escape to be maintained in good repair).

The second notice provided similar details concerning alleged breaches of regulation 7. Thus, the manager was said to have failed to maintain the common parts in good clean decorative repair in breach of regulation 7(1)(a) because the first-floor communal bathroom was unclean and in poor decorative repair, with evidence of orange and black mould. The missing spindle on the first-floor stair guard was a breach of regulation 7(2)(a), the requirement to keep handrails and bannisters in good repair.

The Council also gave a specific and fuller explanation in the final notices of why it considered a financial penalty was the most appropriate course of action. It referred to the Council’s confidence that the offences could be proved beyond reasonable doubt, to the absence of any previous prosecution, to the potential for harm to the occupants of the property, to the fact that the respondent also managed another licenced HMO, and to the fact that she had been supplied with a copy of the 2006 Regulations on a previous occasion.

The respondent appealed to the FTT. At that time she was professionally represented. The main grounds of her appeal focussed on the lack of notice of the original inspection, on her prompt completion of all the scheduled work, and on the impact which the Covid 19 pandemic had had on the respondent and her tenants, who were said to have spent much more time at home, causing the property to deteriorate. The respondent also took issue with the quantum of the financial penalty which, she pointed out, exceeded the total annual rent of the whole property. No complaint was made about the form of the initial notice and it was not suggested that the penalty should be set aside because the respondent had not understood what it was she was being said to have done wrong.