[2025] UKUT 234 (LC)

Part 3 of the Housing Act 2004 enables a local housing authority to adopt a selective licensing scheme, with the effect that certain properties that are not houses in multiple occupation are nevertheless required to be licensed. Under section 95(1) of the 2004 Act it is an offence to be a person managing or in control of a house that is required to be licensed under a selective licensing scheme and is not licensed.

A local housing authority may respond to a failure to licence in a number of ways, ranging from a warning to the imposition of a civil penalty under section 249A of the 2004 Act to prosecution. In deciding what to do it must (by virtue of paragraph 12 of Schedule 13A to the 2004 Act) have regard to the Secretary of State’s guidance, Civil Penalties under the Housing and Planning Act 2016 (April 2018); that guidance provides (at paragraph 3.5) that local housing authorities should develop their own policies on determining the appropriate level of penalty and the appellant has done so. The policy relates, of course, to a range of offences and is not specific to the selective licensing offence.

Schedule 13A to the 2004 Act also prescribes the procedure for imposing financial penalties, which involves the service of a notice of intent, an opportunity for the person to make representations, and a final notice imposing a penalty. A person upon whom a civil penalty is imposed may appeal to the First-tier Tribunal. On such an appeal the First-tier Tribunal must make its own decision, rather than reviewing the decision of the authority; but it must start from the authority’s own policy and should not depart from it without explaining why: Waltham Forest LBC v Marshall [2020] UKUT 35 (LC) at paragraph 55.

One of the grounds of appeal in the present case is that the FTT failed to follow the appellant’s policy. The following points from that policy are important.

The document sets out the aims of the policy, and says:

“The council considers the need for transparency and consistency in the discharge of its functions under the above legislation to be of primary importance. The objective of this policy is to promote both principles in the exercise of the council’s functions and, in particular, to maximise consistency on the use of the council’s enforcement powers.”

It continues:

“3.3

Reasonable effort will be made to ensure compliance with the law by a process of advice and education. Formal action must be considered in the following circumstances:

• Where there is a serious risk to public health

• Where there is a blatant or deliberate contravention of the law

• Where there is history of non-compliance, or cooperation for an informal approach is not forthcoming

• Where landlords fail to take action in the timescales agreed within an informal process.”

Later the policy looks specifically at the formal actions available

“7.1

If formal action is considered appropriate in accordance with paragraph 3.3, the following options are available:

… 7.5.6 A failure to meet one or more of the licensing requirements will be individually assessed but may result in one, or a combination of 2 or more, enforcement outcomes including:

• A written warning or simple caution

• Prosecution

• The imposition of a civil penalty

• The service of formal notices

• Refusal or revocation of a licence and/or the granting of a shorter licence period through a consequent failure to meet fit and proper person criteria.”

The policy then provides notes on each of those options. There is no specific reference to a written warning, but as to a “simple caution” the policy says:

“7.6

Simple Caution

The purpose of a Simple Caution is to deal quickly and simply with less serious offenders by diverting them away from the courts, and to reduce the chances of repeat offences. Simple Cautions will be kept on file for three years.”

The reference to “band 2” is to a table or matrix in familiar form setting out the range of penalty to be imposed for different levels of offence; band 2 is from £5,000 to £9,999. The policy also states that the authority will exercise its discretion to increase or decrease a penalty beyond the band limits “in exceptional circumstances only” in view of the need for transparency and consistency. The policy provides for an automatic 20% discount where the offender complies with the identified breach within the representation period at the ‘Notice of Intent’ stage, and also where the offender pays the penalty within a specified time period, normally 28 days.

I come back to the policy later in this decision. I remind myself of this Tribunal’s role in this appeal from the FTT’s decision, which Newey LJ explained in Sutton v Norwich City Council [2021] EWCA Civ 20 at [31]: