[2024] UKUT 202 (LC)

First, that the FTT had erred in law when deciding to impose a financial penalty at all, when a proper application of the Council’s policy should have resulted in a warning.

Second, that the FTT erred in law in determining the appropriate amount of any penalty in multiple respects: by failing to treat the appellants’ ignorance of the licensing requirement as a significant mitigating factor; by treating the seriousness of the deficiencies in fire protection as an aggravating factor in determining the penalty for the licensing offences at the same time as imposing separate penalties for the same condition as breaches of the 2006 Management Regulations; by failing to take proper account of the different responsibilities of the two appellants and in particular, of the fact that Mr Shorr had very little to do with the management of the Flat; by failing to take Mr Shorr’s limited responsibility into account at all in respect of two of the management offences; by failing to determine a single penalty for each offence, and then apportioning it between the two appellants in accordance with their relative responsibility.

“A Tribunal’s decision as to what civil penalty it should impose for either a breach of the 2007 Regulations or failure to comply with an improvement notice involves, as I see it, both evaluation and discretion. An appellate tribunal is not, accordingly, entitled to overturn a penalty just because it thinks it would have imposed a different one. To interfere, the Court/Tribunal must conclude that the decision under appeal was an unreasonable one or is wrong because of “an identifiable flaw in the Judge’s reasoning such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion”.”