[2024] UKUT 93 (LC)

The issue of service goes to the elements of the offence. Had the Improvement Notice not been correctly served then the offence under section 30 could not have been committed. But it was correctly served and therefore the elements of the offence have been proved, beyond reasonable doubt. The question then arises whether Mrs Tabassam can show, to the civil standard of proof, that she had the defence of reasonable excuse.

As I said. Mrs Tabassam was unrepresented in the FTT and it is likely that this point was not comprehensively argued. The FTT dealt with the point very briefly at its paragraph 42, where it said:

“…we accept the submissions of Mr Whatley that Ms Tabassam’s default in failing to keep her address details up to date with the Land Registry cannot amount to a ‘reasonable excuse’. To find otherwise would be for the Applicant to rely upon her own failures to avoid culpability.”

In the appeal Mr Charles argued that Mrs Tabassam had the defence of reasonable excuse because she did not receive the Improvement Notice and other communications when the respondent could easily have checked its council tax records properly – as it eventually did and found her without difficulty. Mrs Tabassam had not hidden her whereabouts; the respondent had her address all along. Moreover, the FTT accepted her evidence (at its paragraph 47) that she was entirely unaware of the problems at her property and that “once she became aware she refurbished the property and rectified the problems identified”. I take it that the FTT therefore accepted her evidence that she was unable to gain access before the tenant left because the tenant would not let her in, which was why the property got into a bad state.

Mr Whatley argued that provided service is effected correctly a landlord has deemed knowledge of the Improvement Notice, unless through the action of a third party the notice does not reach them. The fact that this notice did not come to Mrs Tabassam’s attention was her own doing. Mr Whatley submitted that Mrs Tabassam’s failure to update her address with the Land Registry could not provide a reasonable excuse. To allow that as a reasonable excuse would be to rob the legislation of its purpose, because all that a landlord would need to do to avoid liability for disrepair, or indeed other offences, would be to avoid updating his or her address at HM Land Registry.

I am not persuaded by that argument. Local housing authorities and tribunals should be able to distinguish between landlords deliberately evading service and those who have simply failed to update their address details., and on the basis of the evidence accepted by the FTT it is clear that Mrs Tabassam fell into the latter category. The FTT accepted that she did not deliberately avoid receiving the Improvement Notice. She had been registered all along for council tax at her home address and she was easy to find once the respondent tried to do so for the purposes of enforcement. To find her guilty of a criminal offence in those circumstances seems to me exceptionally harsh.

Mr Whatley could not point to any authorities where a landlord had been found to have committed the offence of failing to comply with an Improvement Notice where he or she never received the notice.

There are of course many cases where the offence of failure to obtain an HMO licence is found to have been committed despite the fact that the landlord did not know that a licence was needed. And Mr Whatley referred to IR Management Ltd v Salford City Council [2020] UKUT 81 (LC) where the fact that the landlord did not know that its property was an HMO was not accepted as a reasonable excuse.

58 Ollier Avenue was not an HMO; it is accepted that such landlords are responsible for keeping themselves abreast of licensing requirements, but Mrs Tabassam was not in that position. And as to IR Management , the ease with which a property owner can find out how many people live at their property has to be contrasted with the difficulty for a small-scale landlord of working out that they have an address for service recorded on the Land Register (how many home-owners know that?), and the further difficulty of working out that they need to update it in case the local housing authority wants to serve a notice upon them.

In Marigold and others v Wells [2022] UKUT 33 (LC) the Tribunal (The Deputy Chamber President, Martin Rodger KC) referred at paragraph 47 to the decision in Perrin v HMRC [2018] UKUT 156 (TCC), where the Tax and Chancery Chamber of the Upper Tribunal said this:

“82.

One situation that can sometimes cause difficulties is when the taxpayer’s asserted reasonable excuse is purely that he/she did not know of the particular requirement that has been shown to have been breached. It is a much-cited aphorism that “ignorance of the law is no excuse”, and on occasion this has been given as a reason why the defence of reasonable excuse cannot be available in such circumstances. We see no basis for this argument. Some requirements of the law are well-known, simple and straightforward but others are much less so. It will be a matter of judgment for the FTT in each case whether it was objectively reasonable for the particular taxpayer, in the circumstances of the case, to have been ignorant of the requirement in question, and for how long.”

I accept that the respondent served the Improvement Notice correctly on Mrs Tabassam; it did all that was required of it. But the notice did not come to her notice and I am not persuaded that service of the Improvement Notice amounts to deemed knowledge of its contents. Mr Whatley resorted to Latin: ex turpi causa non oritur actio, which means that a party does not have a cause of action arising from his or her wrongdoing. But this is not about having a cause of action, it is about having a defence to a criminal offence carrying a heavy penalty. And it is unrealistic to regard the failure to update one’s address for service at HM Land Registry as “turpis” (quite a strong term in Latin), or in English as wrongdoing. The FTT described it as “negligent” (in the context of its consideration of the landlord’s conduct in the context of the amount of the penalty); but I regard that as an overstatement. It was an error, but a very technical one that most people would have no idea they could commit.

In my judgment the FTT was wrong and irrational to find that Mrs Tabassam did not have the defence of reasonable excuse. I substitute the Tribunal’s own finding that she did have that defence, with the result that no offence was committed and no financial penalty was payable.

Does that make life impossible for a local housing authority? I do not think so. Service itself remains straightforward. But in a case like this where a series of communications went unanswered it may be worth a little further checking (not, as Mr Whatley put it, trawling through all their records) in case there is a simple explanation for the failure to respond.

Mr Charles also argued that the penalty imposed by the FTT was too high; permission to appeal on that basis was neither sought nor granted, and in any event the point is now academic.