[2025] UKUT 234 (LC)

The fourth ground of appeal relates to the FTT’s decision not to impose a penalty on Mrs John. The argument is that whereas the FTT thought it was following the decision in Shorr, in this case the facts are different. In Shorr both Mr Shorr and Ms Ro (a married couple) were the registered proprietors of the property, but Ms Ro alone managed it and applied for a licence; all the income was accounted for on her tax return even though it was paid into the joint bank account. As we saw (paragraph 15 above, in the FTT’s paragraph 77) the Tribunal took the view that it was not appropriate to impose any penalty on Mr Shorr.

The present case, says the appellant, is quite different. Mrs John, unlike Ms Ro, is the sole proprietor of the property. Moreover, her culpability was irrelevant; the matrix of penalties imposes a band without regard to culpability, although the position within the band can then be adjusted to take into account aggravating and mitigating factors. In the present case both Mr and Mrs John were committing an offence, and Mrs John’s lesser culpability takes her to the bottom of the band but does not enable the FTT to take her outside that band and outside the civil penalty matrix altogether.

There are two points there. The first is about culpability. The appellant’s argument assumes that a civil penalty was the inevitable consequence of the commission of an offence. But it was not. As we saw above, the policy requires the local housing authority first to consider whether any formal action is needed at all and, if it decides it is, then to consider whether to administer a warning or a caution rather than imposing a financial penalty or prosecuting. In making a decision not to impose a penalty because – in its view – there was little or no culpability – the FTT was not stepping outside the bounds of the policy.

The grounds of appeal refer to there having been repeated reminders to both respondents before the penalty was imposed. But the evidence was that those warnings were addressed to Mr John and that all communications were with him. His email address looked like an address for Mrs John since it started with “lisa”, but Mrs John in her written statement said that that was Mr John’s email address, and the FTT has given no indication that it did not accept that. There is no finding that anything was sent to Mrs John before the notice of intention in February 2023. Again, therefore, in my judgment the FTT was right to consider afresh whether to impose a financial penalty at all.

The second point is the appellant’s argument that the circumstances here are quite different from those in Shorr. This is difficult to assess. The parties there were joint proprietors of the property; here Mrs John is sole leaseholder. In Shorr Ms Ro was the landlord under the tenancy agreement; but I can see no evidence as to which of Mr and Mrs John or both were named as landlord on the tenancy agreement, nor even whether there was a written agreement.

The appellant also takes issue with the FTT’s point at its paragraph 72 that “punishing one [of the couple] is effectively punishing both”; that, it says, is an irrelevant consideration. There can be no double punishment here, it is argued, as there are two separate offenders. I agree that that is correct in principle, but it does not mean that the two separate offenders are equally culpable, nor does it necessarily mean that a financial penalty should be imposed on both.

What the FTT found was that the reality of thesituation was that Mr John was in control of the property and was the one who in practice undertook the responsibilities of the landlord. There is no finding of fact about Mrs John in the FTT’s decision; nor is there really any evidence of her doing anything until the application for a licence in March 2023. The FTT conducted a hearing. It was best placed to make its own assessment as to who was, in practical terms, in control of the property and tenancy. It took the view that that was Mr John and that although Mrs John had committed the licensing offence she was not sufficiently at fault to justify the imposition of a financial penalty. That is an exercise of judgment with which the Tribunal will not interfere, even if it might not have reached the same conclusion itself.