[2025] UKUT 2 (LC)

The temptation for the First-tier Tribunal to review a decision of its own under the power conferred by section 9 of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act) is sometimes strong, but it should usually be resisted. Anyone who doubts that should read the Court of Appeal’s decision in Point West GR Ltd v Bassi [2020] 1 WLR 4102. Anyone still in doubt might read this decision.

In all, the First-tier Tribunal, Property Chamber (the FTT) produced four decisions in this matter. In the first, it explained its reasons for allowing an appeal against a financial penalty imposed on a letting agent by a local authority. Its second decision was in response to the authority’s application for permission to appeal, and included an additional, alternative reason why the FTT said it would reach the same conclusion, supposedly inserted under the power of review in section 9 of the 2007 Act. Because the FTT had taken that course without giving the parties the opportunity to make representations, it was obliged by rule 55(3) of its procedural rules to entertain an application to set aside the second decision on the grounds that it was a misuse of the power of review. This gave rise to a third decision in which the FTT explained its action and suggested further procedural routes by which it could supplement its original reasoning. Undaunted, the Council sought permission to appeal the second decision and a review of the third decision, which led to a fourth decision in which the FTT added further clarification of its additional reasoning.

Shorn of these complexities, the simple issue in these proceedings is whether the FTT misinterpreted the London Borough of Waltham Forest’s private sector housing enforcement policy when it allowed an appeal against a civil penalty imposed on Marble Properties (London) Ltd under section 249A of the Housing Act 2004. I will refer to the appellant as the Council and to the respondent as MPL.

MPL managed a house at 1 Janson Road, London E15 on behalf of a landlord. The house was an HMO, a house in multiple occupation. It should have been licensed under an additional licensing scheme for HMOs introduced by the Council on 1 April 2020 under Part 2 of the Housing Act 2004. MPL was aware of the need to obtain a licence, but it did not apply for one until 28 January 2022. By managing the house without a licence MPL committed an offence under section 72, Housing Act 2004.

Rather than prosecuting MPL, the Council decided to impose a civil penalty of £12,000. It offered a 20% discount if the penalty was paid within 28 days. MPL did not pay but instead exercised its right to appeal to the FTT. By a decision issued on 15 January 2024 the FTT reduced the penalty to £6,000, having decided that the Council had misunderstood its own enforcement policy.

Two separate proceedings are now before the Tribunal.

The first is an appeal by Council against the FTT’s original decision to reduce the penalty. The FTT granted permission to appeal that decision on two grounds. But when it did so it added an alternative justification for reducing the penalty. It decided that if the Council’s interpretation of its policy was correct, then in the circumstances the application of the policy was “too rigid”, and that the FTT was entitled not to follow it. That enabled the FTT to arrive at its original destination by a new and different route. At the same time the FTT granted permission to appeal against its additional reasoning (before the Council was even aware of it).

The second proceedings are an application for judicial review of the FTT’s decision to review its original decision, which led to the inclusion of its additional reasoning. The Council says that the FTT had no power to review its decision in that way. Moreover, it maintains that the only way it can challenge the decision to review is by judicial review and it sought permission to do so from the Administrative Court which transferred the claim to this Tribunal for determination. The defendant in the judicial review claim is the FTT itself, with MPL joined as an interested party.

I directed that I would determine the appeal, the application for permission and (if permission is granted) the substantive judicial review at the same hearing. Apart from the FTT’s acknowledgment of service, neither it nor MPL have participated in the proceedings. The Council was represented at the hearing by Mr Calzavara, who had appeared on its behalf before the FTT. I am grateful to him for his helpful submissions.