[2025] UKUT 234 (LC)

Ground 1 is that the FTT went outside the relevant penalty band without identifying any exceptional circumstances, and thereby went outside the bounds of the appellant’s policy without explanation or justification. Nothing in the facts, says the appellant, could have amounted to exceptional circumstances taking the penalty outside band 2.

Ground 2 is that the FTT erred in identifying mitigating circumstances in respect of Mr John; First, it is not the case that he applied for a licence as soon as he realised one was required. He began the process of application in December 2022 after several reminders but the application was not submitted until 4 March 2023. Indeed, the appellant does not accept that Mr John was unaware of the need to obtain a licence when the designation was renewed in May 2020, since Mr John had signed up to the appellant’s email news service. The FTT did not make a finding of fact as to when Mr and Mrs John knew they needed a licence; they both said that emails had not reached them but so far as I can see from the written evidence they did not suggest that the telephone calls to and from Mr John, referred to by the appellant, did not happen. Second, Mr and Mrs John’s son’s ill-health took place in 2022, according to the medical evidence, and the appellant argues that it can have had no bearing on the failure to licence the property from May 2020 onwards, nor in early 2023.

The third ground of appeal is that the FTT erred in affording Mr John a discount outwith the policy. The 20% discount for early payment is granted when payment is made within 28 days, and there is nothing to say that that period is suspended pending an appeal.

I take those three grounds together.

As to mitigation, on the facts found by the FTT Mr John did not make an application as soon as he was aware of the need to make one. There was no challenge to the evidence that an application was commenced, but not submitted in December 2022. And there was no challenge to the evidence that Mr John had spoken to a housing officer on the telephone on at least two occasions during the preceding months. On any reckoning there was a delay of at least several months before an application was made. So I cannot see that there was a prompt application that amounted to mitigation.

As to Mr and Mrs John’s son’s illness, I accept that that did amount to mitigation. The FTT heard their evidence about that at the hearing; the medical evidence does indeed span a limited period, but a sustained period of caring for a sick-child can have a far-reaching impact on a parent’s ability to cope with other demands. I accept the FTT’s finding, as a mixture of fact and judgment, that this was a mitigating factor.

As to the 20% discount, the appellant is clearly right that the grant of that discount by the FTT was an unexplained departure from the appellant’s policy.

It is apparent that the FTT took the view that £7,000 was too high; however, whilst it was entitled to take account of the respondents’ son’s ill-health as mitigation that was not an “exceptional circumstance” that could justify the reduction of the penalty to £4,000, outside the appellant’s band 2. Nor was there any justification for reducing the penalty further to £3,200 by way of 20% discount. As the policy itself says, one of its objectives is consistency in the appellant’s response to offenders and there is no justification for an inconsistent approach in Mr John’s case. Grounds 1, 2 and 3 succeed and the FTT’s decision is set aside.

I substitute the Tribunal’s own decision. The FTT, which determined the facts, accepted that Mr John’s knowledge of the licensing requirement amounted to an aggravating factor. The FTT did not make any finding of dishonesty against Mr John, and I take it therefore that the FTT accepted that this was a case where the licensing requirement, of which Mr John had experience, was overlooked. Either he did not receive or did not pay attention to the appellant’s email newsletter which would have informed him about the new designation, and he failed to check the position after the earlier designation expired. Even when the appellant gave him further reminders in the autumn of 2022 by email and telephone he failed to apply for a licence for several months. That is an aggravating factor. But equally the FTT found that there was mitigation in the form of Mr and Mrs John’s son’s ill-health. I have not heard the oral evidence about that and I accept the FTT’s judgment. Accordingly I substitute a penalty of £5,000, thus remaining within but at the bottom of band 2; I then allow a 20% discount, in accordance with the policy, because a licence was applied for (see paragraph 11 above), so that the penalty is £4,000.