Financial Penalty Reduced in Housing Act Case

OUTCOME: Allowed in Part

© CROWN COPYRIGHT 2019

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case References

:

CHI/45UB/HNA/2018/0004 Property

: 15A [NAME], Lancing, West Sussex [POSTCODE]

Appellant: [redacted]

:

In person

Respondent: [redacted] Representative

: Ms [COUNSEL] of counsel

Type of Application : Appeal against Financial Penalty Para 10 of Sch.13A Housing Act 2004

Tribunal Members

: Judge M [NAME] Judge A [NAME] / venue of hearing

: 15 November 2018, Havant Justice Centre 20 November 2018 (Inspection/reconvene)

Date of Decision

: 8 January 2019

DETERMINATION

Summary

1. This is an appeal under para 10 of Sch.13A to the Housing Act 2004 (“the Act”) against a decision by the Respondent to impose a financial penalty of £22,100. A Final Notice imposing the penalty was given to the Appel- lant on 20 June 2018. This alleged a failure to comply with an Improve- ment Notice relating to 15A [NAME], Lancing, West Sussex [POSTCODE].

2. A hearing took place on 15 November 2018. The Appellant appeared in person and the Respondent was represented by Ms [RESPONDENT] of coun- sel. The Tribunal inspected on 20 November 2018 and reconvened after the inspection to determine the appeal.

The Premises

3. 15 [NAME] is a bungalow c.1950 in a residential area, close to the centre of Lancing. 15A [NAME] is the former garage for the bungalow which has been converted into self-contained residential ac- commodation. On inspection, 15A was accessed from the street across along a concrete driveway running along the flank of the main house and under a timber framed car port roofed with corrugated plastic sheets. Between the main house and 15A is a solid timber gate (“the side gate”) giving access to a small enclosed area. The side gate can be operated in- ternally by a thumb latch. On the left-hand side of this enclosed area is a raised area with a door to the kitchen of the house and a gate to the rear yard (“the garden gate”). On the right-hand side, at slightly lower level, is the main door to 15A (“the main door”). In the yard, towards the back on the right-hand side adjacent to 15A is a raised plinth which is con- sistent with the position of the former “summer house” referred to be- low. The right-hand edge of this plinth (now covered) is approximately 300mm from a uPVC glazed window set into the left-hand flank wall of 15A (“the bedroom window”).

4. 15A itself is a brick-built structure with a felt covered flat roof. The [NAME]’s inspection suggested the external walls were solid brickwork and there was no external evidence of any membrane or chemical-injection type Damp Proof Course. The Tribunal did not inspect the roof, but the skylight and exterior suggested there was limited scope for a cavity or insulation between the ceiling and roofing felt.

5. Internally, the accommodation comprises: • A living room to the front, with a window onto the car port. The main door is on the left-hand side of the living room. On the left- hand side there is also a small separate kitchen area with its own uPVC window looking onto the rear yard. Opposite the kitchen area on the right-hand wall is an enclosure with a small fridge. A door at the rear of the living room gives access to the bedroom. The kitchen area is heated with a portable oil-filled electric heater and there is a wall-mounted electric extractor fan (which ap- peared to operate satisfactorily). There are mains-powered smoke

detectors which again appear to operate properly. The living room has laminated flooring which is lifting in parts revealing that it is laid directly on the concrete screed below. • A bedroom to the rear. This has a window to the rear, a skylight set into the ceiling and the bedroom window to the yard men- tioned above. Although the bedroom window was behind a bed on the day of inspection, the Tribunal was shown that it opened out- wards and was secured with a lockable handle. There were again mains-powered smoke detectors. • On the left-hand side of the bedroom is a small shower room with its own uPVC window onto the yard. The room has a shower en- closure, WC and wash handbasin. It is heated with an electric wall mounted fan heater and there is another wall mounted electric extractor fan. Both appear to work satisfactorily. The rear yard is rather cluttered, with seating and tables. The Tribunal was shown some minor storm damage to felt attached to the kitchen roof of the bungalow. Power to 15A is connected to an RDL M100 single tariff coin-operated meter.

6. However, it is also necessary to set out a brief history of the premises. The Appellant has been the registered proprietor of 15 [NAME] since April 1994. At least 15 years ago, the Appellant converted the gar- age into a residential unit and applied the street address of 15A to this property. At some stage before 2016, the Appellant constructed a timber framed and clad single storey outbuilding in the yard which has been described as a “summer house”. It was built in the position described above, close to the left-hand flank wall of 15A. At that stage, the wall of the summer house facing 15A [NAME] was uninterrupted, and it was built so close to the flank wall of 15A that the bedroom window could not open outwards fully. There was no access on foot from the bed- room of 15A into the yard, except by a circuitous route leading through the living room and main door of 15A, then through the covered area and garden gate into the yard.

The Law 7. The matter under appeal is a financial penalty imposed on a person un- der s.249A of the Act for failing to comply with an Improvement Notice. That penalty is an alternative to prosecution for an offence under s.30(1) of the Act. If no appeal is brought against the Improvement Notice, s.30(2)(a) of the Act provides that “compliance with an [NAME] means, in relation to each hazard, beginning and completing any re- medial action specified in the notice … not later than the date specified under section 13(2)(e) and within the period specified under section 13(2)(f)”. The amount of the penalty must not be more than £30,000: see s.249A(4) of the Act. Prior to imposing the financial penalty, the local housing authority must give an initial Notice of Intent and a Final Notice. Sch.13A to the Act contains the requirements for these notices.

8. In any proceedings, it is a defence that the person had a “reasonable ex- cuse for failing to comply with the” Final Notice: see s.30(4) of the Act

In this respect, there is a material decision of the High Court in [NAME] v Goremsandhu [2013] EWHC 3834 (Admin). The Tribunal will re- turn to this case below.

9. The person on whom the penalty is imposed may appeal to the Tribunal. An appeal is by way of re-hearing: see para 10(3) of Sch.13A. The Tribu- nal can confirm, vary or cancel the Final Notice. The same criminal standard of proof is required for a civil penalty as for a prosecution – and this is the standard which the Tribunal must apply on appeal. On appeal, the Respondent must therefore be able to demonstrate beyond reasona- ble doubt that the Appellant has committed an offence under s.30(1) of the Act.

10. As to the level of any financial penalty, para 10(12) of Sch.13A of the Act provides that a local housing authority must have regard to any guidance given by the Secretary of State about the exercise of its functions under the Schedule or s.249A. The relevant guidance is contained in Guidance for Local Authorities: Civil Penalties under the Housing and Planning Act 2016 (April 2018) made under this provision (“the Guidance”). In particular, para 3.5 of the Guidance sets out a list of factors to be taken into account when assessing the level, of penalty: • Severity of the offence. • Culpability and track record of [NAME]. • The harm caused to the tenant. • Punishment of [NAME]. • [NAME] from repeating the offence. • Deter others form committing similar offences. • Remove any financial benefit [NAME] may have obtained as a result of committing the offence.

Evidence: The Respondent 11. The main evidence for the Respondent was given by [NAME] [RESPONDENT], a senior Environmental Health Officer. 12. On 8 March 2016, the Respondent served Demolition Orders under s.265 of the Housing Act 1985 to remove two structures from the yard (including the summer house) by 6 May 2016.

13. On 17 May 2016, the Respondent served an Improvement Notice on the Appellant under ss.11 and 12 of the Act. In essence, Sch.1 to the Improve- ment Notice stated that the Respondent was satisfied the following Cat- egory 1 hazards existed on the premises: (a) Excess Cold. The notice stated that “the heating is inadequate to heat the unit based on thermal insulation and room sizes, and supplemen- tary heaters were in use”. It also stated that “the electricity for the property is spurred off the supply for 15 [NAME] and funded through single tariff rate coin meter” so it was “not economic to op- erate”.

(b) Fire. The notice stated that “the bedroom is an inner room, accessed through an open plan kitchen/living room”. The “proximity of the ad- jacent shed” meant “the only window cannot be opened fully”, result- ing in there being “no place of final safety”. There was also no provi- sion for smoke detection, and the door between the bedroom and kitchen was “not a fire door”. The supplementary heaters resulted in fire risk. Finally, the door to 15A “requires a key to open and so may prevent escape in an emergency”. It was also satisfied that the following Category 2 hazards existed: (a) Damp and mould growth. The notice referred to heating which was inadequate to control condensation in the bedroom and damage to the laminated floor suggesting water ingress. The “likely cause of this would be the absence or failure of the damp proof course”. There was no mechanical air extractor in the bathroom and no heat- ing. Similarly, the kitchen lacked mechanical ventilation. (b) Electrical hazards. There was evidence of overloading of sockets in the unit. Sch.3 to the Improvement Notice set out three items of works (relating to fire safety) to be completed by 18 June 2016 and a further seven to be completed by 20 August 2016. These items are set out in full in full in the first three columns of the Schedule at Appx.A to this determination.

14. There was no appeal against the Improvement Notice.

15. Following service of the Improvement Notice, two meetings took place on 31 May and 14 June 2016, details of which were given in a letter from the Respondent dated 20 June 2016. The meetings related to both the Improvement Notice and to the Demolition Orders. The letter suggests that at the meetings, the Appellant admitted he “had not carried out any works to comply with the first timescale” in the Improvement Notice. As far as the Demolition Orders were concerned, the Appellant stated he had said he wished to appeal them but had not yet done so.

16. On 21 June 2016, [NAME] [NAME] inspected the premises with a Building Con- trol Officer named [NAME] and (according to [NAME] [NAME]) a Pri- vate Sector Housing Manager named [NAME]. Smoke detection had been installed to the living room and bedroom, but the layout had not changed. The Appellant had cut a hole in the wall of the summer house approx. 60cm wide opposite the bedroom window to allow the window to open fully. The Appellant was advised this did not fully com- ply with the Improvement Notice, and Ms [NAME] again advised him he would have to make a regularisation application for the works in the no- tice.

17. On 1 August 2016, the Appellant emailed [NAME] [APPELLANT] stating that he had come to see him on 4 July 2016, when he had given [NAME] [NAME] a photo of the bedroom window. [NAME] [NAME] replied on the same day, stating that “To re-iterate, the replacement window hinges allow the bedroom hinges for 15A [NAME] to open at 90 degrees which would comply with the criteria for an escape window. Once the tim- ber structure has been removed from the rear garden of 15 [NAME], and all locks have been removed from the gates separat- ing the rear garden of 15 [NAME] from the final exit gate then we would accept this as a viable means of escape.”

18. [NAME] [NAME] attended the premises again on 12 and 18 October 2016. He was unable to gain access on the former date, but he was able to do so on 18 October 2016. His file note records that at that stage: • Item 3 of Sch.3 to the Improvement Notice: The internal layout “had not been changed”. However, a hole had been cut in the wall of the summer house facing the bedroom window, so that the win- dow could now open outwards to its full extent. In the gap be- tween 15A and the summer house, a piece of chipboard had been laid over some breeze blocks laid on their ends to provide level access from the window to the hole cut into the summer house wall. [NAME] [APPELLANT] records that “I commented to [NAME] [APPELLANT] that this was still not acceptable, he challenged why and I told him that the room was still an inner room and escape through a shed was not acceptable. He said he was going to get a second opinion.” • Items 6 and 7 of Sch.3 to the Improvement Notice: The laminate floor still showed signs of water damage and there were high damp readings in several areas. It could be seen that in places the laminated floor covering was laid directly on the concrete screed below, with no thermal insulation. There was mould growth to one wall of the premises with high damp meter readings. • Item 8 of Sch.3 to the Improvement Notice: no fixed heating had been installed, but there was a new 2kW electric downflow heater in the bathroom. • Items 9 and 10 of Sch.3 to the Improvement Notice: Extractor fans had been installed in the bathroom and kitchen.

[NAME] [NAME] spoke on that occasion to a person called “[APPELLANT] who identi- fied himself as the tenant of 15A. [NAME] [APPELLANT] suggests that when he asked for a surname and asked how long “[APPELLANT] had occupied the premises, the Appellant told this person not to answer. [NAME] [APPELLANT] took photographs which were provided to the Tribunal.

19. It later transpired that the person referred to above was called [NAME]. There is an invoice to [NAME] [NAME] dated 8 August 2017 for repay- ment of rent of £500 advanced to him to secure a flat at [ADDRESS]. This invoice is addressed to [NAME] [NAME] at the premises.

20. On 1 November 2016, [NAME] [NAME] found an advert on the [NAME] web- site for letting 15A. A copy was produced, which listed the premises as: “Flat for rent self-contained in Lancing, Ground floor, inclusive bills, except electricity. Wifi included £700 per month. 1 Month in advance Phone [PHONE]”.

21. The Appellant was interviewed under caution on 4 November 2016, and a transcript was provided. He admitted that two people lived in 15A In- gleside Crescent named “[NAME] and “[NAME] (who [NAME] [NAME] had met).

They were moving out on 25 November 2016 “under a Notice”. They had lived there perhaps 1-3 months and had no tenancy agreement. But he admitted that “I charged them £700 [a] month” in cash. When asked why he had not complied with the Improvement Notice, the Appellant stated that this was “because I haven’t had any response from yourself … and I haven’t had a response from [NAME]”. He stated that he had sent an email to the Respondent’s [NAME] team “be- cause I wanted to know about the window, the window, is that accepta- ble”. The Appellant then mentioned [APPELLANT] of the Respondent’s [NAME] department. The Appellant repeated that he had sent [NAME] [APPELLANT] a photograph of the bedroom window and [NAME] [NAME] had promised on 4 July 2016 to let him know if the window was acceptable. He had “not heard [[NAME] [NAME]] reply yet”. On 1 August 2016 he emailed [NAME] [NAME] with a reminder and on 3 August 2016 he also emailed Ms [NAME]. The first email is mentioned above, while the email to Ms [NAME] as her to “e-mail me, [to] let me [kn]ow if you have seen the photo of 15a [NAME]” Landing [POSTCODE] bedroom window”. Ms [NAME] replied on 5 August 2016 that she would endeavour to re- spond … early next week”. The interview transcript states that the Appel- lant then said that: “When [NAME] came over to me, she said that if the window opened 900 and I removed all the locks from the summer house and the gate house and everything else, that the window would be ac- ceptable.” [NAME] [NAME] response was: “I remember that meeting that’s the meeting you were at as well as [NAME] [NAME] when we were there. But we said to you at that time that it opens into another building and [NAME] expressed her concern about climbing out of the window and into another building and that wasn’t acceptable. I remember that because I was there. At no point were you told the window was acceptable. It was made clear that it wasn’t an acceptable means of escape. from an inner room bedroom. The Notice did not specify change in the win- dow. The notice specified change the layout of the property.” The Appellant then referred to a letter dated 9 March 2016 from [NAME] [NAME] [NAME] in [NAME] (“the [NAME] letter”). [NAME] [NAME] re- plied that the [NAME] letter was in fact sent on behalf of Ms [APPELLANT]. The letter suggested the Appellant might choose to make a reg- ularisation application for [NAME] purposes. In fact, the Appel- lant had not made any such application. But the Applicant still “failed to comply with the Improvement Notice”. When asked why he had failed to comply with the notice, the he had “basically” relied in the [NAME] letter “and not responding to emails as well”. The Appellant specifically re- ferred to the phrase in the [APPELLANT] letter which stated “we will not un- dertake enforcement”, to which [NAME] [NAME] responded that: “that is [NAME] … but you now need to complete works to comply with the Private Sector Housing Team Notice that I served on you the Improvement Notice on the 17th May and those works, because you are carrying them out, will be subject to Building Reg- ulations”.

22. [NAME] [APPELLANT] refers to an appeal by the Appellant against the Demolition Orders. He produced a copy of a decision of this Tribunal dated 9 No- vember 2016 confirming the orders. But which required them to be de- molished by 27 January 2017. The Appellant apparently applied for per- mission to appeal to the Upper Tribunal and there was an application for judicial review to the High Court (Case no.CO/2514/2017), presumably relating to a refusal of permission to appeal by the Upper Tribunal. [NAME] [NAME] attended the premises on 3 May 2017 and was refused access, ap- parently as a result of the pending appeals.

23. [NAME] [NAME] was able to gain access on 25 July 2017 using a warrant. He took photographs and made a file note. The premises seemed occupied. He noted there was by this stage a “fixed panel heater in each room”. He also noted that the quick release catch to the side gate had been changed back to a key operated [NAME].

24. The Appellant was again interviewed under caution on 13 September 2016. In interview, he stated that 15A was occupied by his wife, who lived in the house at the same time. She did not sleep in the bungalow because there were guests living there. The last time 15A had been “tenanted” was a year before (i.e. September 2016), when the tenant was a [NAME]. She had lived there for a couple of months. The Appellant then said Ms [APPELLANT] had not been charged a rent, because she was his sister’s daughter. The Appellant refused to answer questions about why he had not completed the works.

25. On 10 November 2017, the Respondent was granted a further warrant to enter the premises in respect of the Demolition Orders under Housing Act 2004.

26. On 28 February 2018, officers from the Respondent executed the war- rant and demolished the two structures including the summer house. [NAME] [NAME] attended and inspected. His findings and set out in the fourth to sixth columns of a Scott Schedule provided to the Appellant on 20 June 2018. This is the Schedule which appears in Appx.A to this determina- tion. While doing so, [NAME] [NAME] spoke to a Ms [APPELLANT], who iden- tified herself as the tenant. She provided a copy of a tenancy agreement beginning on 25 October 2017 at a rent of £700 per month. The Tribunal was shown a copy of that tenancy agreement. Again, [NAME] [NAME] took pho- tographs which were produced to the Tribunal.

27. Ms [NAME] apparently moved out of the premises on 6 March 2018.

28. On 7 March 2018, the Respondent determined that a Civil Penalty Notice should be issued in the light of the Respondent’s Private Sector Housing Enforcement Policy (a copy of which was provided to the Tribunal) and the Guidance. He completed a decision-making document dated 4 May 2018 which assessed the level of penalty on a points basis. A copy was provided to the Tribunal.

29. The Respondent served a Notice of Intent dated 8 May 2018 by first-class post. The Applicant acknowledged receipt on 29 May 2018. On 13 June 2018 the Respondent served the Final Notice which is appealed against.

30. [NAME] [APPELLANT] was cross-examined by the Appellant with the assistance of the Tribunal.

31. First, it was put to [NAME] [NAME] that the bedroom window itself met the requirements for an “escape window”. [NAME] [NAME] responded that the na- ture and the dimensions of the window itself was acceptable as an “es- cape window”, but that this did not in itself meet the requirements of the Improvement Notice. There was no sufficient means of egress to a place of safety – initially because the summer house prevented the window from opening, and afterwards because of the locked gates across the fire escape route.

32. Secondly, the Appellant challenged the account of events at the meetings on 31 May and 14 June 2016. [NAME] [NAME] did not accept that [NAME] [APPELLANT] was not present. The Appellant put to [NAME] [APPELLANT] that at the meeting, the Appellant asked what he had to do to comply with the [NAME]. He suggested that Ms [APPELLANT] replied it would be acceptable if the Appellant (1) enabled the window to turn at 900 and (2) removed the [NAME] to the side gate. [NAME] [NAME] denied this. He maintained that what Ms [NAME] said was that the means of escape would not be acceptable if it went though another building. [NAME] [NAME] accepted he had not made a note of the conversation at the time. As to the email from [NAME] [NAME] of 1 August 2016, he did not accept this confirmed the Appellant’s version of events.

33. Third, the Appellant made a sustained attack on [NAME] [APPELLANT] veracity. This line of questioning arose from para 17 of the decision of the First- tier Tribunal (Property Chamber) on 9 November 2017. This refers to information given to [NAME] [NAME] by [NAME] [NAME] in October and November 2016, which was relied upon by the Respondent in the appeal against the Demolition Orders. The Appellant put to [NAME] [APPELLANT] that [NAME] [APPELLANT] did not pay his rent, that he was a violent individual, and that he had later ad- mitted misleading the previous Tribunal. [NAME] [NAME] responded that he had only met [NAME] [NAME] on 3-4 occasions and that the latter had never admitted lying. The Appellant then put to [NAME] [APPELLANT] that he “promised to help [NAME] [NAME] out with the rent” in return for giving helpful evidence. The Council was “putting words into [[NAME] [NAME]] mouth”. [NAME] [NAME] re- futed the allegation and referred to his note of the inspection on 18 Oc- tober 2016. That was the first time he had met [NAME] [NAME], but following that, [NAME] [RESPONDENT] had voluntarily come to the Respondent’s offices. [NAME] [RESPONDENT] admitted the Respondent had provided [NAME] [RESPONDENT] with housing as- sistance by providing £500 in advance rent to secure another tenancy. But that was not connected with the evidence given to the [NAME] in November 2016 – and in any event the Respondent had asked for repayment of the money advanced.

34. Fourth, the Appellant took [NAME] [APPELLANT] through the information the Re- spondent had about occupiers from time to time. [NAME] [NAME] referred to an occupier named [NAME], who had lived at 15A for three years up to June 2016. Then there was [NAME] [NAME], who had lived there with his partner from June 2016. There was Ms [NAME], Ms [APPELLANT] and the current occupier, [NAME] [APPELLANT]. The Appellant put to [NAME] [APPELLANT] that there was no evidence any of them paid money to him, but [NAME] [NAME] referred to the copy of [NAME]’s tenancy agreement produced to the Tribunal.

35. The Respondent also relied on evidence from Ms [RESPONDENT], a Private Sector Housing Officer who relied on a statement dated 17 Au- gust 2018. Ms [NAME] was party to the meeting on 8 May 2018 where the decision was made to impose the financial penalty. She helped complete the decision-making document with [NAME] [RESPONDENT].

The Respondent’s submissions

36. Ms [RESPONDENT] relied on the Respondent’s Statement of Case dated 12 Au- gust 2018, which she expanded upon at the hearing.

37. Ms [APPELLANT] submitted that on any issue of fact, the Appellant’s evi- dence lacked credibility. A previous Tribunal had found this in other pro- ceedings. He had sought to portray himself in this case as confused, but he was fully “cognisant”. His approach was to fish around for remedies. For example, he went to [NAME] and even Brighton and Hove City Council for “ammunition”. But the second opinion he eventually ob- tained from Brighton Council did not help with the Improvement Notice at all. There was no tangible basis for any criticism of [NAME] [NAME], and the allegation against [NAME] [NAME] was made without substance. Parts of his ev- idence were demonstrably false.

38. Counsel contended that the Improvement Notice had not been appealed and that it was unassailable. The Notice of Intent and Final Notice were regular. As to the breaches of the Improvement Notice, Ms [NAME] relied upon [NAME] [NAME] evidence of fact, and in particular his inspection on 28 February 2018, which is summarised in Appx.A to this determina- tion. The Respondent further submitted that: (a) [NAME] [RESPONDENT] was not lying. He had nothing to gain in doing so. (b) There had been several forms of enforcement action taken against the Appellant. (c) The material relied on by the Appellant dealt with enforcement of Building Regulation and Planning, not the Improvement Notice. (d) There is nothing to suggest no enforcement action would be taken for failure to comply with the Improvement Notice. Indeed, the let- ter of 20 June 2016 and the email of 1 August 2016 were clear. (e) The inspection on 28 August 2018 showed there was a failure to comply some 16 months after the Improvement Notice was given.

39. As to the level of financial penalty, Ms [NAME] accepted the Tribunal could have regard to matters other than the factors set out in section 3.3

of the Guidance, provided it took those factors into account. She referred to the decision-making document. She urged the Tribunal to take a sim- ilar approach to that taken by the Respondent, and to confirm the pen- alty of £22,100.

40. Finally, the Tribunal raised an issue about the maximum level of penalty, principally under the first factor in the Guidance. If there was a maxi- mum penalty of £30,000, it might be said that such a penalty ought only to be reserved for the most severe offence and the most notorious of- fender. For example, it could not be said that the Appellant in this case fell into the same category as the late [COUNSEL]. However, counsel invited the Tribunal to take into account that a civil penalty was only one of two remedies for breach of an Improvement Notice. The most severe offences and the most notorious offenders would be prosecuted in the magistrates’ court. The maximum financial penalty of £30,000 could be imposed even where the failure to comply with an Improvement Notice did not fall into the highest category of offence.

The Appellant’s evidence and submissions

41. The Appellant was unclear about whether he accepted the procedural re- quirements of s.30 and Sch.13A were met, so the Tribunal indicated the Respondent would need to prove this was the case.

42. As to the alleged failure to take the remedial actions specified in Appx.3 to the Improvement Notice, the Appellant was taken to the schedule re- produced in Appx.A to this determination. His position was as follows: (a) Item 1: The Appellant contended he installed automatic fire detec- tion and alarms within the property before 18 June 2016. He ac- cepted he had not provided a certificate to show these were “suita- ble for the layout and risk”. The units were installed by a qualified electrician named [APPELLANT]. When asked by the Tribunal, the Appellant said he paid [NAME] [APPELLANT] £300 in cash for this work, but that he had no receipts. (b) Item 2: The Appellant accepted the evidence given by [NAME] [APPELLANT] about alterations to the internal layout of the property to make the bedroom and ‘inner room’. (c) Item 3: The Appellant again accepted the evidence given by [NAME] [APPELLANT] about the side gate. (d) Items 4 and 5: The Appellant accepted no Domestic Electrical In- stallation Periodic Report had been provided. However, the elec- trical installations had been put in by [NAME] [APPELLANT], a qualified elec- trician. (e) Item 6: The Appellant wholly rejected the assertion he failed to ensure the thermal insulation met the requirements of current [NAME]. He had installed a new floor and insulation to the walls. When asked by the Tribunal, the Appellant described the thermal insulation as “wool insulation” for written evidence to confirm this work (such as contractor receipts, work specifications etc.), the Appellant invited the Tribunal to “rely on my word that it has been done”.

(f) Item 7: Again, the Appellant said that damp proofing required by the Improvement Notice had been “completely done”. An “all new floor” had been provided “months ago”. When asked by the Tribu- nal the Appellant said the damp work was carried out by a [NAME] [APPELLANT] in June 2016. He paid him £700-£800 to do this work. The Appellant did not provide any written evidence to con- firm the work was carried out. (g) Item 8. The Appellant accepted he had not complied with this re- quirement. (h) Items 9 and 10: The Appellant said he had installed the two ex- tractor fans required before 20 August 2018. Again, they had been installed by [NAME] [NAME], but he accepted no certificate had been provided by the electrician.

43. As to the breaches which are admitted, the Appellant gave evidence for the reasons he had not complied. As soon as the Appellant received the Improvement Notice, he got someone to carry out all the works. [NAME] [NAME] was an electrician who lived across the road from the Ap- pellant. He installed smoke detetctors and extractor fans and checked the wiring throughout. There was no problem with the wiring. He promised to give the Appellant with a certificate as soon as the summer house was sorted out.

44. He said “my argument is that everyone told me I did not need to com- ply with the Improvement Notice. If [NAME] [NAME] had accepted the escape window (like [NAME] did), the Improvement Notice would have been completed within the time stated in the notice”. He referred to meetings on 31 May and 14 June 2016, and Ms [NAME] statements about the bedroom window. There was also the [NAME] letter, which expressly stated that “we will not undertake enforcement”. [NAME] [NAME] later refused to accept the escape window: see email from [NAME] [APPELLANT] dated 1 August 2016 referred to above. The Appellant therefore ap- proached [NAME] officers at Brighton & Hove City Council. In an email dated 23 November 2016, he asked “I just wanted to [know] if my escape window meet building reg”. [NAME] [NAME] (a [NAME]) reassured him that: “I can confirm than an egress window will be acceptable providing that the window has a clear opening space at least 450mm in one dimension and a total area of 0.33m2. The window must also be situated no higher than 1.1m from finished floor level”.

45. The Appellant was asked to address the seven factors which should be taken into account in deciding the amount of any civil penalty in section 3.3 to the Guidance. He submitted as follows: (a) Severity of the Offence. There was no real default and no “danger” to anyone. (b) Culpability and track record. The Appellant had always tried to be obliging to the Respondent, although he had got annoyed with them on occasion. (c) The harm caused to the tenant. No harm was caused to the tenants.

(d) Punishment of [NAME]. It was relevant that he had been caused considerable inconvenience over the past 3 years in dealing with the Notice. He had also been the victim of violence from [NAME] [APPELLANT], who had slashed the Appellant’s car tyres. (e) [NAME] from repeating the offence. The Appellant did not intend to be in breach, and would not repeat the offence. (f) Deter others form committing similar offences. (g) Remove any financial benefit [NAME] may have obtained as a result of committing the offence. He had not received anything like the suggested rent of £16,000 over the past three years, and had to pay Council Tax for 15A in any event.

46. As to other considerations, the Appellant stated that when “[NAME] [APPELLANT] demolished my shed [in February 2018], he tore off the roof” of the bungalow. Repairs to the roof cost £3,386. As a result, he had recently agreed a Debt Management Plan. He was retired, and received a state pension of £186/week, a private pension of £250/week and £26.67 from other investments. He received no rental income and owned no other properties than this one.

47. The Appellant was cross-examined by counsel. It was put to him that he had “not put in a ‘fixed’ heating system”, to which the Appellant an- swered “No, I put in oil fired radiators”. He considered that all the works required by the Improvement Notice had been done. He ac- cepted he had not previously mentioned either [NAME] [RESPONDENT] or [NAME] [RESPONDENT], but the Respondent put this down to “lack of experience on my part”. As to the allegations against [NAME] [NAME], it was suggested that there was no reason for him to lie, to which the Appellant stated that [NAME] [APPELLANT] was dragging things out and had had no reason to “look into” his house.

48. In relation to the alleged statements about the bedroom window, [APPELLANT] sel took the Appellant through the emails and correspondence. The let- ter of 20 June 2016 gave details of the meetings on 31 May and 14 June 2016 involving the Appellant, [APPELLANT], [NAME] [APPELLANT] and Ms [APPELLANT]. The Appellant accepted he was told that at that stage that the works re- quired a regularisation certificate. He was whether he “confirmed” at the meetings “that you had not carried out any works to comply with the first timescale [in the Improvement Notice]”, as suggested in the letter. The Appellant said “I didn’t say that at the meeting. I had done some works”. [COUNSEL] put to the Appellant that whatever he may have previously understood about the bedroom window, from the time of [NAME] [NAME] email of 1 August 2016, the position was abundantly clear. The bedroom window hinges complied with the building regulation criteria for an escape window, but to comply with the Improvement Notice (i) the “timber structures” in the yard had to be removed and (ii) locks had to be removed from gates separating the yard from final exit gate. The only answer the Appellant could give was that he could “not think” and was “lost now”. [COUNSEL] then took the Appellant to the similar state- ment in the file note of the inspection of 18 October 2016, when [NAME] [APPELLANT] had told the Appellant the bedroom “was still an inner room and escape through a shed was not acceptable”. The Appellant stated he

relied on what he had previously been told by Ms [APPELLANT]. As to the laminated floor, the Appellant agreed it was in the condition suggested by [NAME] [APPELLANT] when he inspected on 18 October 2016. But the Appellant did the works as soon as he got the Improvement Notice. [COUNSEL] put the photographs of the floor to the witness, and he agreed it did not show new flooring. But he suggested this was a patch between the bed- room and living room which had not been replaced.

49. Counsel then cross-examined about occupation. The Appellant ac- cepted the premises were capable of housing a family from March 2015 onwards. The Appellant accepted that Ms [APPELLANT] had a tenancy agree- ment for a year from 26 October 2017, but he she moved out on 6 March 2018. It was also put to the Appellant that in the course of the previous Tribunal proceedings, he had denied that the summer house was being used for habitable accommodation. On this question, the [NAME] was unable to conclude that the Appellant was “an honest and re- liable witness”: see para 25 of the Tribunal’s decision. The Appellant said he had told no lies and did not feel he was being dishonest “one lit- tle bit”. The premises had been empty for 18mo-2yrs out of the last three years. The current occupier paid no rent. He simply did work for the Appellant, perhaps 2-3 days at a time. His name was [APPELLANT].

50. It was suggested that the Applicant had tried to frustrate implementa- tion of the works and contested matters at every step. He had refused access, so that the Respondent had to obtain warrants on at least two occasions. The Appellant agreed he had contested them. It was also suggested he had temporarily installed a [NAME] on the side gate, and ap- pealed the Demolition Order, all to frustrate the works.

Reasoning 51. As explained above, the appeal is by way of rehearing.

52. The Tribunal first considered whether the procedural requirements of s.30 and Sch.13A were met. As far as the Improvement Notice is con- cerned, there has been no appeal against that notice. The Tribunal is therefore satisfied that the notice became “operative” within the mean- ing of s.30(1) of the Act. The Respondent produced copies of the Notice of Intent dated 8 May 2018 and the Final Notice dated 13 June 2018, and [NAME] [NAME] gave evidence of service (which was not challenged). The [NAME] has considered both notices and it is satisfied they comply with the respective requirements of paras 2-3 and 7-8 of Sch.13A to the Act. The procedural requirements of s.30 and Sch.13A have therefore been met.

53. The Tribunal has next considered the alleged breaches of the require- ments of the Improvement Notice. This is essentially a question of fact. Again, the Tribunal reminds itself that it must be satisfied of the facts beyond reasonable doubt.

54. The Tribunal heard oral evidence from both the Appellant and [NAME] [APPELLANT]. In assessing this evidence, the Tribunal found [NAME] [NAME] to be an impres- sive and truthful witness. In particular, his evidence was supported by

notes of inspection and there were no obvious points on which his evi- dence was contradicted by correspondence or other written material. By contrast, the Tribunal was far less impressed with the oral evidence of the Appellant. His case lacked even the most basic documentation to support the wide-ranging assertions made. And where capable of being checked, they were frequently proved wrong. So, for example, the sug- gestion there was a new floor, thermal insulation etc. proved inaccurate when the Tribunal later inspected the premises. Moreover, the Applicant made a sustained attack on [NAME] [APPELLANT] veracity based on an alleged ar- rangement with [NAME] [NAME] in the previous Tribunal proceedings. This allegation was wholly unsupported by oral evidence from anyone other than the Appellant. There was no obvious motive for [NAME] [APPELLANT] to reach such an arrangement with [NAME] [APPELLANT], and none was suggested by the Appellant. The invoice to [NAME] [APPELLANT] dated 8 August 2017 for repay- ment of rent of £500 is, in the Tribunal’s view, incapable of supporting the suggested improper arrangement. It was a routine payment by an- other housing officer and made in relation to a completely separate prop- erty. More significantly, it was an invoice requiring [NAME] [NAME] to pay the Council, not the other way round. This Tribunal also cannot ignore that a previous Tribunal expressly found the Appellant to be untruthful, in proceedings involving the Demotion Order referred to in this matter. Where there is a difference between the parties on the factual evidence, the Tribunal prefers the evidence of [NAME] [NAME], and it attaches little weight to the oral evidence of the Appellant unless it is supported by doc- umentation in the hearing bundle.

55. By reference to each of the remedial actions set out in Appx.A to this de- termination, it makes the following findings of fact: (a) Item 1. The Tribunal finds that the remedial action was only partly completed by the date completion date specified in the Improve- ment Notice, namely 18 June 2016. The Tribunal accepts the Appel- lant installed mains-powered smoke detectors within this timescale, since [NAME] [NAME] recorded them as being there on 21 June 2016. But there is no evidence the detectors were “suitable for the layout and risk within the property”, which is a specific requirement of the Im- provement Notice. The Appellant accepted he has not provided any Minor Electrical Works certificate or other evidence from a qualified person to show the detectors were suitable. (b) Item 2. The notice specified that action should be taken to ensure the bedroom was not an ‘inner room’, but it gave the Appellant a choice of how to achieve this objective. The notice suggested one method, namely the removal of the partition between living room and bed- room, so that that the occupiers of the bedroom had a fire escape along a designated route to a place of safety in the car port. This route would involve going through the main door and side gate (using a thumb latch to exit). In fact, the Appellant initially chose to provide an alternative means of fire escape from the bedroom window by the simple expedient of cutting a hole in the wall of the summer house and creating a chipboard and breeze block bridge across the gap be- tween the two structures. The Tribunal finds that the bedroom did not cease to be an ‘inner room’ as a result of this arrangement, and

that this was the situation as at 18 June 2016 when the remedial ac- tion should have been completed. Subsequently, the Applicant chose a second method of providing suitable fire escape route by demolish- ing the summer house completely. The Tribunal accepts the yard was enclosed and cluttered and was not suitable as a place of safety for emergency escape purposes. In case of fire, the nearest place of safety was the car port, and removal of the summer house provided an es- cape route which involved a complex process of going through the bedroom window into the yard, through the garden gate and the en- closed area and then through the side gate into the car port. It follows that the Tribunal finds the remedial action specified in item 2 was not completed at all by the date set out in the Improvement Notice, namely 18 June 2016. It was partially completed when the summer house was demolished on 28 February 2018. (c) Item 3. The action to alter the “external access/egress door” (i.e. the side gate) was originally completed by the date set out in the Im- provement Notice, namely 18 June 2016. For some reason, this was replaced by a [NAME] (as seen on the inspection on 25 July 2017), but by 28 February 2018 had reverted back to a quick-release mechanism. (d) Items 4 and 5. The Appellant has not supplied Worthing Borough Council a current (or indeed any) Domestic Electrical Installation Pe- riodic Report for the whole of the electrical installation in the build- ing. It follows he has also failed to carry out work to remedy any Code 1 or Code 2 defects listed in such a report. The remedial actions in items 3 and 4 were not completed by the date set out in the Improve- ment Notice, namely 20 August 2016, and has not been completed by the hearing date. (e) Item 6. The Tribunal finds there is no effective thermal insulation to the premises. The external walls appear to be a single course of ren- dered brickwork with no layer of insulation. There was no evidence the felt roofing included any thermal insulation layer and the floor coverings were laid directly on top of the concrete screed. Moreover, it appears the power for the heating has always been supplied by the same single tariff coin-operated meter, which Schedule 1 to the Im- provement Notice suggested was “not economic to operate”. The ev- idence of [NAME] [NAME], supported by the various inspection notes, sug- gests no work has been carried out in relation to thermal insulation since the Improvement Notice. The Tribunal rejects any suggestion by the Appellant that he installed a new floor and wall insulation since the Improvement Notice. On inspection, it was clear that the damaged laminate flooring was of some vintage, and it quite obvi- ously pre-dated the Improvement Notice. Similarly, there was no ev- idence of work to the walls in recent times. If a new floor or wall in- sulation was provided, this plainly pre-dated the [NAME]. Since the Appellant has undertaken no “remedial actions speci- fied in the notice” the issue of compliance with current building reg- ulations does not arise. (f) Item 7. The Tribunal finds there is no effective damp proofing, whether in compliance with [NAME] or at all. On inspec- tion, there was no membrane or other means of preventing damp ris- ing through the concrete screed to the floor. There was evidence of

damage to the laminated flooring consistent with damp. The evi- dence of [NAME] [NAME], supported by the various inspection notes, sug- gests no work has been carried out in relation to damp proofing since the Improvement Notice. Once again, the Tribunal rejects any sug- gestion by the Appellant that he undertook any damp proofing works to the floor “months ago”. This would have been impossible without lifting the laminate floor, which had plainly not been disturbed for some time. Since the Appellant has undertaken no “remedial actions specified in the notice” the issue of compliance with current [NAME] does not arise. The remedial action in item 7 was there- fore not completed by the date set out in the Improvement Notice, namely 20 August 2016, and has not been completed by the hearing date. (g) Item 8. The remedial action specified in item 8 was fairly clear. The Improvement Notice required the Appellant to provide a fixed heat- ing system that met certain standards. The Notice went on to give two options, namely (1) gas-fired central heating and (2) electrical heating including modern combi-storage heaters, a 2k wall- mounted heater in the shower room and a dual tariff electric meter. The Appellant certainly fitted a 2kW wall-mounted heater in the shower room before October 2016, but plainly failed to go on to in- stall any other elements of the “fixed” heating system. There is a photograph dated 28 February 2018 which shows a single electric panel heater attached to the wall of the living room, and some evi- dence that there may have been panel heaters in the past, but panel heaters were not seen on inspection. Portable oil-fired heaters do not meet the requirements for a “fixed” system. The Tribunal finds as a fact that no has been provided – whether “effective, efficient and economical” or otherwise. The remedial action in item 8 was not completed by the date set out in the Improvement Notice, namely 20 August 2016, and has not been completed by the hearing date. In any event, at the hearing the Appellant fully accepted he had not complied with item 8. (h) Items 9 and 10. The Tribunal finds the Appellant installed extractor fans in the kitchen and shower room on or before the date specified in the Improvement Notice, namely 20 August 2016. The Appellant accepted he had not provided any Minor Electrical Works certificate or other evidence that the fans were installed by a suitably qualified person. The Tribunal is not therefore satisfied the fans are “suita- ble” as required by items 9 and 10 of the Improvement Notice. The remedial actions were only partially completed by the date set out in the Improvement Notice, namely 20 August 2016, and they re- mained only partially completed by the hearing date.

56. The Tribunal takes into account the general argument advanced by the Appellant that but for the bedroom window, he in fact complied with the Improvement Notice. This is patently wrong and the argument is re- jected. The factual findings above are wholly inconsistent with this. In- deed, even if he was correct that the bedroom window was acceptable as a fire escape window (which the Respondent accepts), this did not in it- self mean the bedroom ceased to be an “inner room” as required by Item

3 of Sch.3 to the Improvement Notice. That is quite apart from the failure to remedy other matters in Sch.3.

57. Under s.30(1), a person commits an offence if he fails to “comply” with an Improvement Notice once it has become operative. Unlike under s.198A of the Housing Act 1985, any failure to comply under s.30(1) does not have to be “intentional” on the part of the Applicant. Under s.30(2)(a) of the Act, “compliance” with an Improvement Notice means in relation to each hazard, beginning and completing any remedial ac- tion specified in the notice … not later than the date specified under sec- tion 13(2)(e) and within the period specified under section 13(2)(f)”. The latter dates are given in Appx.A to this determination. By reason of the above findings of fact, the Tribunal is satisfied the Appellant failed to complete any of the ten “remedial actions” specified in Sch.3 to the Im- provement Notice. The only remedial action which was wholly com- pleted by the date specified in the Notice was Item 3. But the Tribunal notes the continued duty under s.30(5) of the Act to take remedial action after the period for completion specified in the notice has passed. For a period of time between 25 July 2017 and 28 February 2018, there was a breach of this continuing duty.

58. As explained, in proceedings against a person for an offence under sub- section (1) it is a defence under s.30(4) that he had “a reasonable excuse for failing to comply with the notice”. In this respect, two propositions can be made derived from the decision of Ouseley J. in [NAME] v Goremsandhu: • An honest but mistaken belief is not a reasonable excuse defence. It may be a part of a reasonable excuse defence when the sur- rounding circumstances to the holding of that belief are taken into account: para 25. This proposition was derived from the judgment of the Court of Appeal in R v Unah [2011] EWCA Crim 1837; [2012] 1 WLR 505. • There are two components to this defence: First, if a belief is re- lied on it must be an honest belief. Second, there have to be rea- sonable grounds for the holding of that belief. That is an objective question: para 27. This proposition was in turn derived from the another Court of Appeal judgment in R v Y(A) [2010] EWCA Crim 762; [2010] 1 WLR 2644.

59. The Appellant argued that he did not comply with the [NAME] because “everyone told me I did not need to comply with” it. Before dealing with the criteria set out above, it is worth considering each of the alleged matters relied on by the Appellant in this regard: (a) There is the alleged statement by Ms [APPELLANT] that “if the window opened 90O and [the Appellant] removed all the locks from the summer house and the gate house and everything else, that the window would be acceptable”. This was supposedly said at a meet- ing on 31 May or 14 June 2016. Insofar as it is suggested that Ms [NAME] may have be saying that the Improvement Notice did not need to be complied with, this is rejected for a number of reasons. First, it is unlikely Ms [NAME] would have commented on the

Improvement Notice. She worked for the Respondent’s [NAME] team, and was not responsible for the notice. The Tribunal also accepts [NAME] [NAME] was present at the meeting. Otherwise his letter dated 20 June 2016 would have been a fabrication and his evidence to the Tribunal a lie. [NAME] [NAME] account of the meeting clearly suggests he told the Respondent he needed to comply with the Improvement Notice, and Ms [NAME] did not demur. (b) The letter of 20 June 2016 does not suggest the Appellant need not comply with the Improvement Notice. Quite the opposite. (c) The email of 1 August 2016 from [NAME] [NAME] clarified that whilst the bedroom window could comply with the criteria for a fire escape window, this would not be enough to comply with the Improvement Notice. The summer house still needed to be demolished. (d) The advice given by Brighton and Hove City Council was specifi- cally given by a [NAME] in response to an enquiry by the Appellant as to whether the “escape window [would] meet building reg”. It was nothing to do with Improvement Notices. (e) The [NAME] letter simply does not support the argument advanced by the Appellant. The line in the [APPELLANT] letter stating that “we will not undertake enforcement” was taken out of context. The relevant passage is as follows: “… although the planning enforcement case is closed on [the garage conversion] – the [NAME] aspect of this devel- opment remains open. You would at the time of conversion required a [NAME] application and although we will not undertake enforcement, the work still remains unauthor- ised and this will be revealed on any property searches which may affect any potential future sale of this property”. The passage in italics plainly and unambiguously refers to enforce- ment of building controls, not the Improvement Notice. (f) In the recorded interviews, [NAME] [NAME] repeatedly stressed to the Ap- pellant the difference between meeting building regulation require- ments for an escape window and carrying out works under the No- tice. (g) The bedroom window was not even mentioned in the Improvement Notice.

60. In the light of the above, the Tribunal is sure there is no reasonable ex- cuse defence. The circumstances of the holding of the relevant belief were that there were requirements in [NAME] for a window to be an escape window, and rather wider and different requirements set out in the Improvement Notice. This difference was repeatedly explained to the Appellant. Even if the Appellant honestly believed that complying with one would discharge his obligation to comply with the other, there were no objectively reasonable grounds for the holding of that belief. Everything the Appellant was told and read pointed to the opposite con- clusion.

61. It follows that the Appellant has failed to comply with the Improvement Notice and has committed an offence under s.30(1).

The Penalty

62. The Tribunal has considered the seven factors set out in section 3.3 of the Guidance in deciding the level of a civil penalty. It does so without adopting the points system used by the Respondent in its decision-mak- ing document, which is an approach that does not appear in the Guid- ance. It reaches the following conclusions in respect of each of the fac- tors: (a) The Tribunal is satisfied that Category 1 hazards continued to be pre- sent on the property for a significant period of time. The Improve- ment Notice listed the Category 1 hazards as “excess cold” and “fire”. The works to remedy excess cold was present as a hazard on 20 Au- gust 2016, since no works were undertaken to remedy the lack of heating and the poor thermal insulation. The severity of this is exac- erbated by (a) the fact this Category 1 hazard existed 18 months after the works should have been completed (b) there have been numerous reminders from the Respondent and (c) the premises have been pe- riodically occupied by tenants and/or others. The [NAME] listed the Category 1 hazards as “excess cold” and “fire”. The works to remedy fire hazards were only partly undertaken before 20 August 2016. Lack of installation certificates for the smoke alarms are not serious, but the failure to carry out alterations to stop the bed- room being used as an inner room is a severe feature. This was only mitigated by the demolition of the summer house by the Respondent in February 2018. The Category 2 hazards were “Damp and Mould Growth” and “Electrical Hazards”. Failure to remedy these is neces- sarily less serious than the Category 1 hazards, but they still pose a risk to health, and the risks largely remain today. Both hazards are not towards the highest ends of the scale, since there is no actual ev- idence of harm having occurred. The Tribunal considers a moderate to serious offence has been committed. (b) Culpability and track record of [NAME]. This is not the first ex- perience the Appellant has of the Respondent exercising statutory housing and other powers. There is the Demolition Order (upheld by the Tribunal), and at least two warrants for entry. It should also be noted that the Demolition Order was not complied with even after being upheld by the Tribunal, and the Respondent had to exercise its powers to demolish the structures. In terms of culpability, there is no doubt the Appellant deliberately failed to comply with such parts of the Improvement Order that he did not agree with. He knew he was in breach of his obligations. But against this, the Tribunal was not told about any previous civil penalty or prosecution of the Appellant. And he appears to be a small landlord, with only 15 and 15A available for letting. This is not a large professionally run landlord business. The Tribunal considers that culpability and track record can be de- scribed as “moderate”. (c) Harm to tenants. There is, as the Appellant suggested, no evidence of actual harm to the tenants. That is plainly a mitigating factor. There has been (and continues to be) a risk of harm to health, especially the Category 1 hazard of “Excess Cold”. The Respondent mentions that one tenant stated his electricity bills in cold weather could exceed £10

a day. This factor suggests the punishment should be set at a moder- ate level. (d) Punishment of [NAME]. On this point, the Tribunal does not agree with the submission by counsel that the ‘scale’ of civil penalties should effectively sit below those in a prosecution. The £30,000 max- imum is in its view reserved for the most severe offences and offend- ers. So much is clear from the Guidance, which expressly states that “a civil penalty should not be regarded as an easy or lesser option compared to a prosecution”. The limited information given about the Appellant’s means and assets suggest that anything more than a nominal civil penalty would have a real economic impact on him. But it is clear that a substantial penalty is necessary to bring home to the Appellant the consequences of not complying with his responsibili- ties. He has ignored every warning from the Respondent over a long period of time. This factor suggests the punishment should be set at a moderate to serious level within the scale of £0-£30,000. (e) [NAME] from repeating the offence. To some extent, this overlaps with punishment. In particular, the Appellant seems imper- vious to the consequences of keeping a property which he allows oth- ers to occupy where there are serious risks to their health. The pen- alty must be set at a level that deters the Appellant from continuing to do this. A moderate to serious penalty would be appropriate. (f) Deter others from committing similar offences. Plainly, a culture of poor quality “shed” housing is something to be discouraged. But there was no evidence that it was necessary to impose a more signif- icant penalty to send a message to others. The penalty in this instance is likely to be significant, and (because of the appeal) very public. However, there is no special reason to increase it to deter others. (g) Remove any financial benefit [NAME] may have obtained as a re- sult of committing the offence. This is a matter which seriously con- cerns the Tribunal. The [NAME] website advert, Ms [APPELLANT] ten- ancy agreement and the Appellant’s evidence of what he charged [NAME] [APPELLANT], all pointed to a passing rent of £700 per week. The Appellant has been extremely evasive about the identities and periods of occu- pation of various occupiers over the years, and the Tribunal places no weight on his denial that 15A was tenanted for much of the time. But despite these uncertainties, the Tribunal is satisfied the Appellant has received significant financial benefit form letting out an unfit prop- erty. The Respondent suggests that as much as £16,000 could have been received for 15A since the Improvement Notice. In fact, a rent of £700 per month over the period to the hearing date would now exceed £21,000. Doing its best, the Tribunal considers a reasonable estimate would be that 75% of this figure has been received. Giving some allowance for costs such as Council Tax suggests that a net rent of £15,000 has probably been received. The penalty should be set at a level to remove this financial benefit.

63. In the light of all the above factors, the Tribunal considers a civil penalty of £15,000 would be appropriate.

Conclusions

64. For the reasons given above, the Tribunal confirms the Final Notice dated 20 June 2018 under para 10(4) of Sch.13A to the Act. But it varies the Final Notice to impose a civil financial penalty of £15,000.

Judge Mark Loveday 8 January 2018

Appeals

1. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application must arrive at the Tribunal within 28 days after the [NAME] sends to the person making the application written reasons for the decision.

3. If the person wishing to appeal does not comply with the 28-day time limit, the person shall include with the application for permission to ap- peal a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then decide whether to ex- tend time or not to allow the application for permission to appeal to pro- ceed.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.