[2024] UKUT 24 (LC)

Section 234, 2004 Act authorises the Secretary of State to make regulations for the purpose of ensuring that every house in multiple occupation (HMO) is satisfactorily managed. Such regulations may, in particular, impose duties on the person managing an HMO in respect of the repair, maintenance, cleanliness and good order of the house and facilities and equipment in it (section 234(2)(a)). By section 234(3) a person commits an offence if they fail to comply with regulations made under the section, but that offence is subject to a reasonable excuse defence (section 234(4)).

Regulations made under section 234 include the Management of Houses in Multiple Occupation (England) Regulations 2006 (the 2006 Regulations). Regulations 4 and 7 of the 2006 Regulations are relevant to this appeal.

Regulation 4 requires the manager of an HMO to ensure that all means of escape from fire are kept free from obstruction and maintained in good order and repair, and that all fire fighting equipment and fire alarms are maintained in good working order.

Regulation 7 imposes duties on the manager of an HMO to ensure that all common parts are maintained in good and clean decorative repair and in a safe and working condition and that they are kept reasonably free from obstruction. In performing that duty the manager must, in particular, ensure that handrails and banisters are kept in good repair (regulation 7(2)(a)).

Section 249A, 2004 Act authorises a local housing authority in England to impose financial penalties on a person if it is satisfied beyond reasonable doubt that the person’s conduct amounts to a “relevant housing offence”. Relevant housing offences are those listed in section 249A(2). The offence of failing to comply with regulations made under section 234 is one such offence.

Schedule 13A, 2004 Act, deals with the procedure for imposing financial penalties, and with appeals. By paragraph 1, before imposing a financial penalty an authority must first give the person on whom the penalty is intended to be imposed notice of its proposal to do so. Such a notice is referred to as a “notice of intent”. By paragraph 2, a notice of intent must be given within six months of the authority having sufficient evidence of the conduct to which the intended financial penalty relates.

The content of a notice of intent is prescribed by paragraph 3 of Schedule 13A, as follows:

“3.

The notice of intent must set out –

(a)

the amount of the proposed financial penalty,

(b)

the reasons for proposing to impose the financial penalty, and

(c)

information about the right to make representations under paragraph 4.”

By paragraph 4, a person who is given a notice of intent may make written representations to the authority about the proposal to impose a penalty within 28 days of the date on which the notice of intent was given. After the end of the period for representations the authority must decide whether to impose a financial penalty and, if so, the amount of the penalty.

If the authority decides to impose a financial penalty it must give the person on whom it served the notice of intent a further notice imposing the penalty, referred to in paragraph 6 as a “final notice”. The final notice must state the amount of the financial penalty, and the authority’s reasons for imposing it (paragraph 8).

A person to whom a final notice is given may appeal to the FTT against the decision to impose the penalty, or against the amount (paragraph 10(1), Schedule 13A)). Such an appeal is to be a re-hearing of the authority’s decision (paragraph 10(3)(a)). On an appeal the FTT may confirm, vary or cancel a final notice.

It is clear from paragraph 1 of Schedule 13A that the service of a notice of intent is an essential pre-condition to the imposition of a financial penalty under section 249A.