[2024] UKUT 140 (LC)

The FTT found that Mr Abdallah was a truthful and credible witness. It accepted his evidence that he had moved from Primrose Lane in June 2017 and that in 2018 (and again a year later) he had informed the Council’s council tax department of his current address when providing information about changes of tenants at Gillies Street. It found that he had attempted to contact the Council’s licensing department about other matters in 2017 by telephone and email but had received no response. But he had never informed the licensing department of his change of address. The FTT was also satisfied that if Mr Abdallah had been aware of the request for information, he would at all times have been in a position to comply with it by providing the necessary safety certificates and declarations.

The FTT then directed itself that, before it could be satisfied that Mr Abdallah had committed the offence of failing to comply with the licence conditions, it was for the Council to show that the required information had been properly demanded from him.

The Council’s position was that by sending the original request for information to the address given by Mr Abdallah in his application for a licence, it had made the necessary demand. It also maintained that the notice of intention to impose a financial penalty had been validly served at the same address.

The FTT must have been unaware of the Court of Appeal’s decision in Bravington (published a few months before the hearing) because itrelied on this Tribunal’s decision in Akhtar and directed itself that the relevant statutory provisions were section 196, 1925 Act and section 7, 1978 Act. It explained that section 196 did not apply directly because the Council’s request for information had not been sent by recorded delivery or registered post. It nevertheless considered that section 7 of the 1978 Act was engaged, because the request had been sent by ordinary post. It directed itself that service would therefore be deemed to be effective when the letter containing the demand was delivered in the ordinary course of the post unless the contrary was proved. At paragraph 73 it said that:

“The case of Calladine-Smith v Saveorder Ltd [2011] EWHC 2501 (Ch) confirms that service will not be effective where an addressee can prove, on the balance of probabilities, that it has not been received in the ordinary course of the post.”

The FTT then considered whether Mr Abdallah had proved on the balance of probabilities that he did not receive the original request for information and concluded that he had, as he had long since moved from the address to which the demand was sent. That finding enabled it to determine, at paragraph 76, that: “because the original request letter was not received, the demands which were a necessary pre-condition to any breach of the licence conditions, were not effectively communicated to Mr Abdallah and cannot be said to have been properly made”. It followed that he had committed no offence and that the financial penalty should be cancelled.

That conclusion made it unnecessary for the FTT to consider additionally whether the same facts supplied Mr Abdallah with a “reasonable excuse” defence to the offence of failing to comply with licence conditions.

A little earlier in its decision the FTT had ruled out any reliance by the Council on section 233, 1972 Act. Its original treatment of that issue in the decision issued on 9 August 2023 said this:

“Whilst it is possible that the Council might contend that the provisions contained in section 233 of the Local Government Act 1972 apply, the tribunal considers that the best view is that they do not apply to the original request letter (albeit they would apply to the notice of intent, because of the distinction between the former as the Council’s own creation and the latter being a notice required under statute). In any event, it is a requirement of section 233 that a document must be posted to the last address known to the Council, which the tribunal considers, in this context, means the last address known to the Council as a whole, rather than limited to a specific department within it. The tribunal found that by the time the original request letter was sent, Mr Abdallah had reported changes of tenancy and occupation of property to the council tax department on multiple occasions when his changed address should have been properly noted even if that was not then properly translated to some or all of the Council’s databases.”

It can be seen that the FTT originally dismissed any reliance on section 233, 1972 Act on two separate grounds. The first was that the request for information was not required by a statute, but was a request the Council had chosen to make, while the second was that the request had not been sent to Mr Abdallah at his last known address, since the council tax department had been supplied with a more up-to-date address.

The Council then asked the FTT for permission to appeal and drew its attention to the decision of the Court of Appeal in Bravington. Having considered Bravington the FTT concluded (correctly I believe) that the first of the two grounds on which it had discounted section 233 was wrong. It therefore reviewed its decision (as it was entitled to do having come to that conclusion) and deleted the first of its two reasons for dismissing reliance in section 233. Its final decision that the demand for information had not been made therefore rested solely on its conclusion that Mr Abdallah’s last known address was Cheviot Close, as the council tax department was aware, and not Primrose Place, to which the demand had been sent.

The Council was granted permission to appeal by this Tribunal on three separate grounds.

First, it is said that the FTT erred in finding that section 233, Local Government Act 1972 did not apply to the request of 15 April 2021 for the provision of information under the licence conditions. It is said that the FTT was wrong to focus on section 196 of the Law of Property Act 1925 and to place reliance on Southwark v Akhtar.

Secondly, the Council takes issue with the FTT’s conclusion that Mr Abdallah’s “last known address” for the purposes of section 233 was the address he had notified to the council tax department rather than the address he had given in his licence application and which he had never informed the Council’s licensing team he had changed.

Thirdly, it is said that the FTT misinterpreted section 7 of the Interpretation Act 1978 and that for the purpose of applying section 233, 1972 Act it was irrelevant that the request had not in fact been received by Mr Abdallah.

On behalf of the Council it was submitted by Miss Salmon that the FTT had been wrong to doubt the applicability of section 233 to requests for the provision of information to satisfy licence conditions. Section 233 applies to any document “required or authorised by or under any enactment”. The whole licensing regime is authorised by the 2004 Act and the inclusion of conditions is provided for by section 90. Those conditions which require the provision, on demand, of information about the safety of electrical appliances and furniture and the condition and position of smoke and carbon monoxide alarms are required by section 90(4) and Schedule 4, 2004 Act to be included in every licence. At the very least the demands contemplated by those mandatory conditions must be regarded as communications authorised by an enactment.

I agree with the appellant’s submissions on these points. The FTT, in its reviewed decision, also seems to have rowed back from the original basis of its treatment of section 233. I take it that, having had its attention drawn to Bravington, in which Devonish was explained, the FTT considered that a request for information required to satisfy a licence condition did not fall outside section 233 simply because the request was one which the Council had a discretion to make.

On examination, therefore, the first ground of appeal falls away as a result of changes made by the FTT to its own reasoning. The appeal is against the reviewed decision, which supercedes the original version. While I agree with Miss Salmon’s submission that section 233 is applicable to requests for information required by licence conditions, that does not advance the Council’s position significantly.

Miss Salmon was also critical of the FTT’s reliance on section 196, 1925 Act, which she sought to persuade me was inapplicable. It is not necessary to consider those submissions, since they do not advance the appeal, but I can see no reason why section 196 could not have been relied on if the demand had been delivered by registered post. I do not accept Miss Salmon’s submission that a demand for information required under a statutory licence cannot be regarded as a notice “required to be served under any instrument affecting property” within the meaning of section 196(5). Notwithstanding that it cannot be transferred, a licence under section 85, 2004 Act is obtained in respect of a Part 3 house and seems to me clearly to be an “instrument affecting property”.

Section 233(2), 1972 Act permits service by a local authority of any document required or authorised by or under any enactment by delivering it to the person to be served, or by leaving it or sending it to them by post, at their “proper address”. Section 233(4) provides that the “proper address” of any person is their “last known address”. The FTT decided this requirement was not satisfied by the demand sent to Mr Abdallah because in 2017 and 2018 the Council’s council tax department had been informed of a different address from the one he had given the licensing department in his licence application in 2016.

Ms Salmon submitted that the FTT’s conclusion was wrong, and that the only address which was relevant to the licensing department was the address given to it, which had never changed. It was not incumbent on that department to make enquiries of other departments of the Council, including the council tax department, to find out if they were aware of a different address and, if so, whether it was more recent than the one supplied to the licensing team.

In support of these submissions Miss Salmon referred me to a number of authorities concerning knowledge held by local councils.

Oldham MBC v Tanna [2017] EWCA Civ 50 concerned the service by a local authority of a notice under section 215 of the Town and Country Planning Act 1990 requiring steps to be taken to improve the condition of a derelict building. The authority served the owner at the address given for them in the proprietorship register for the land, which was an address at which the owner no longer lived. The planning department, by whom the enforcement notice was served, was unaware that their colleagues in another department had the owner’s email address and were in communication with him on an unrelated matter. The trial judge held that the notice had not been properly served. He relied on Collier v Williams [2006] EWCA Civ 20, where “last known” was construed by the Court of Appeal, at [71], as including knowledge of information which could have been acquired by someone exercising reasonable diligence. The same approach had been taken by Mitting J in Tull, R (on the application of) v Camberwell Green Magistrates' Court & Anor [2004] EWHC 2780 (Admin), at [18].

The Court of Appeal reversed the trial judge’s decision and held that an address given for a landowner in the proprietorship register of the land in question was a proper address for service for the purpose of section 233, notwithstanding that another department of the Council was communicating with the owner by email. The planning department, which had served the enforcement notice, was unaware that their colleagues in another department had the owner’s email address. The basis of the Court of Appeal’s decision was that the address obtained from the proprietorship register was the landowner’s last known address. At [28, Lewison LJ explained:

“ I would hold that as a general rule, unless there is a statutory requirement to the contrary, in a case in which (i) a person (in this case the local planning authority rather than the council taken as a whole) wishes to serve notice relating to a particular property on the owner of that property, and (ii) title to that property is registered at HM Land Registry, that person's obligation to make reasonable inquiries goes no further than to search the proprietorship register to ascertain the address of the registered proprietor. It is the responsibility of the registered proprietor to keep his address up to date. If the person serving the notice has actually been given a more recent address than that shown in the proprietorship register as the address or place of abode of the intended recipient of the notice, then notice should be served at that address also.”

The general rulein Oldham v Tanna is not of direct assistance in this case because the address at which the Council was trying to communicate with Mr Abdallah was not the address recorded as his in the proprietorship register for the Gillies Street flat. Nevertheless, Lewison LJ certainly appears to have accepted that the relevant knowledge of the person serving the notice was that of the local planning authority rather than the Council taken as a whole. But he also proceeded on the basis that it was necessary for that person to make reasonable inquiries to establish the intended recipient’s address, and he did not suggest that Collier v Williams or Tull were in doubt.

In his judgment (with which Arden LJ agreed), Lewison LJ referred to two other authorities on which Miss Salmon also relied. The first of these was London Borough of Newham v Ahmed [2016] EWHC 679 (Admin) in which an enforcement notice relating to land was sent by a planning officer to the address of the registered proprietors shown at HM Land Registry. The registered proprietors did not live there, and the Council was corresponding with them at a different address on matters unconnected with the enforcement notice or the land. The Council subsequently prosecuted the owners for failing to comply with the enforcement notice, but the District Judge acquitted them on the grounds that they had not been properly served with the notice. The Council argued on appeal before the Divisional Court that the notice had been served at their last known address “as demonstrated by the fact that it was their registered address at the material time.” The Divisional Court (Hamblen J, with whom Laws LJ agreed) allowed the appeal and found that the District Judge's contrary conclusion is wrong in law. In Oldham v Tanna Lewison LJ acknowledged that the decision contained little reasoning but said that “If anything the facts found by the District Judge (namely that Newham was in fact corresponding with the Ahmeds at a correct current address) were stronger than the facts of our case.” The Divisional Court’s conclusion was reinforced by consideration of the Land Registration Rules, on which the Court of Appeal’s decision was based.

A more substantial consideration of the relevance of knowledge held by different departments of a local authority is found in Newham LBC v Miah [2016] EWHC 1043 (Admin), [2016] PTSR 1082. Officers in Newham's planning department served an enforcement notice on Mr Miah, relating to a breach of planning control at a property that he owned. They served it at the address given for him in the proprietorship register for the property at HM Land Registry, but he did not live there. Newham's finance department was aware of Mr Miah's home address and used it to bill him for council tax. The magistrates found that Newham had not served the enforcement notice at Mr Miah's last known address because of the knowledge of the finance department. Cranston J reversed their decision, and in Oldham v Tanna, Lewison LJ agreed with him, identifying the following passage, at [21], as containing his key reasoning:

“To my mind the statutory framework points clearly to the knowledge of the local planning department being relevant as regards service of an enforcement notice, not the Council as a whole. That knowledge comes from the proprietorship register at the Land Registry. That construction of the 1990 Act is supported by the policy context. The planning department cannot be expected to trawl through the records of the Council as a whole to see whether the registered owners of property have another address in the borough for council tax purposes, by reason of having a market stall or other licence, because they receive some sort of welfare benefit or because their children are in local authority schools. Moreover, even if the planning authority did find another address elsewhere in the Council it would not always be evident which would be the current address for the person on whom an enforcement notice is to be served.”

Once again, Newham v Miah is not directly on point, because, unlike this case, it concerned a notice served at the address shown for the registered proprietor of the land in question at HM Land Registry. Nevertheless, Cranston J approached the issue both as a matter of statutory interpretation and with an eye to policy, finding that both supported his conclusion. In this case the policy considerations are the same, but the statute is different. Nevertheless, in the same way as under the Town and Country Planning Act 1990 the function of serving an enforcement notice is specifically given to “the local planning authority” rather than to the council as a whole, so too under Part 3 of the 2004 Act responsibility for selective licensing of residential accommodation is given to the “local housing authority”, rather than to the council in any other capacity.

I therefore agree with Miss Salmon’s submission that knowledge held by the council tax department is not to be imputed to the housing department when considering what was Mr Abdallah’s last known address. The licensing team satisfied the requirement of due diligence by looking no further than the licence application, which gave the applicant’s address at the time he made the application, and at the licence, which required that he notify the licensing team (specifically) of any change of circumstances, including a change of address. The Council was entitled to assume, in the absence of any such notification received by the licensing team, that Mr Abdallah still lived at 6 Primrose Lane.

I therefore allow the appeal on the second issue. The FTT was wrong to find that Mr Abdallah had not been served at his last known address and should have found that he was under a duty to supply the information requested.

In Bravington the Court of Appeal held that section 233 is intended to allow a local authority “to achieve service regardless of whether the addressee receives, or even learns of, a document”. The FTT, on the other hand, was satisfied that because Mr Abdallah had not in fact received the documents sent to him at Primrose Lane, service could not be deemed to have taken place. Miss Salmon submitted that the FTT was wrong.

Miss Salmon’s submission was that once it was shown that the document had been sent to Mr Abdallah at his last known address, section 233 meant that the risk of non-receipt lay on Mr Abdallah and that section 7 was irrelevant. I think that goes too far, but it is certainly the case that the first limb of section 7 (as explained by the Court of Appeal in Rossi) means that (for the purpose of deciding whether service was effective) Mr Abdallah cannot be treated as never having received the documents sent to him. Although the Court of Appeal in Bravington was not asked to consider the effect of section 7, I do not think Morgan J’s decision in Calladine-Smith v Saveorder can be relied on to produce a different result.

I am therefore satisfied that the FTT was wrong to find that Mr Abdallah was not properly served. But that is not the end of the matter.

The FTT did not consider Mr Abdallah’s defence of reasonable excuse. In Tabassam v Manchester City Council [2024] UKUT 93 (LC), the Tribunal (Judge Cooke) found that it was open to a landlord against whom a financial penalty had been levied for failing to comply with an improvement notice, to make out a defence of reasonable excuse, based on the fact that the notice, properly served at her last known address, had not come to her attention because she no longer lived there. If the same defence was made out in this case, Mr Abdallah would have committed no offence and no financial penalty could be imposed on him.

The facts on which Mr Abdallah relies in support of his defence are not in doubt. He was, as the FTT found, unaware of the Council’s requests for information (and, incidentally, would have been able to satisfy them if he had received the request). But Mr Abdallah’s position is different from that of the landlord in Tabassam because he was under a duty to report his change of address to the licensing team and had not done so. In Tabassam the Tribunal was satisfied that the landlord would not have known that the Council might use an out of date address taken from HM Land Registry. Mr Abdallah would no doubt seek to counter that distinction by referring, as he has done in his brief comments on the appeal, to his efforts to communicate with the Council by telephone and email, all of which went unanswered. A determination of the issue of reasonable excuse is likely to be finely balanced in this case and it is not one on which I would wish to embark without giving Mr Abdallah the opportunity to state his position in person.

The sum at stake in this case is modest and the principles which the Council sought to establish have been vindicated. When I asked her whether the Council would like the matter to be remitted to the FTT for it to consider the defence of reasonable excuse and, if relevant, the quantum of the penalty (on which it had also refrained from making any decision), Miss Salmon was in some doubt as to what her client’s preference was likely to be. She acceded to my suggestion that the Council be given some time to consider its position.

I therefore allow the appeal and direct that, if the Council submits a request for the matter to be remitted to the FTT within 21 days of this decision being published, it will be remitted for consideration by the same panel. If the Council indicates that it does not seek remission the parties will be taken to have agreed either that Mr Abdallah had a reasonable excuse and had committed no offence, or that, in the circumstances no penalty was appropriate.