Financial Penalty Reduced in Housing Offence Appeal

OUTCOME: Allowed

1

Case Reference : MAN/00BY/HNA/2024/0614

[NAME] : [ADDRESS] [POSTCODE]

Applicant: [redacted]

Respondent : [redacted]

Representative

: Ms [COUNSEL] (Counsel)

Type of Application : Appeal against a financial penalty:

Section 249A & Schedule 13A to the Housing Act 2004

Tribunal Members : Judge J. [NAME] and venue of : 27 October 2025 Hearing

Civil & Family Court, Liverpool

Date of Decision : 25 November 2025

_______________________________________________

DECISION ____________________________________

© CROWN COPYRIGHT 2025

FIRST - TIER TRIBUNAL [NAME] CHAMBER ([NAME])

2 DECISION

The financial penalty notice dated 16 October 2024 is varied. Mr [NAME] [APPELLANT] must therefore pay a financial penalty of £1,500 to Liverpool City Council.

REASONS

INTRODUCTION

The appeal

1. On 1 November 2024, [APPELLANT] appealed to the Tribunal against a financial penalty imposed on him by Liverpool City Council (“the Respondent”) under section 249A(1) of the Housing Act 2004 (“the 2004 Act”). The financial penalty related to an alleged housing offence in respect of premises known as [ADDRESS] [POSTCODE] (“[NAME]”).

2. To be more precise, the Applicant appealed against a final notice dated 16 October 2024 given to him by the Respondent under paragraph 6 of Schedule 13A to the 2004 Act (“the Final Notice”). It imposed a financial penalty of £6,750.00 for alleged conduct amounting to an offence under section 95 of the 2004 Act.

The hearing

3. The appeal was heard in person on 27 October 2025. The Applicant represented himself. The Respondent was represented by Ms [COUNSEL] (Counsel).

4. The Applicant gave oral evidence having first given an affirmation to the Tribunal because his written submissions omitted to include a Statement of Truth. The Tribunal also heard oral evidence from a witness for the Respondent: [redacted] employed by the Council). Opportunity was given for each witness to be cross-examined. The Respondent also relied upon the written witness statements of Ms [NAME] (a Private Sector Housing Selective Licensing Manager employed by the Respondent), [NAME] (Deputy Head of Private Sector Housing (Interim) employed by the Respondent) and Mr [RESPONDENT] (a Technical Compliance Officer employed by the Respondent). Oral submissions were also made by both parties. In addition, the Tribunal considered the documentary evidence provided by the parties in support of their respective cases.

5. The Tribunal did not inspect [NAME] prior to the hearing, but understands it to comprise a residential, leasehold apartment.

6. There were two preliminary issues for the Tribunal to deal with, both relating to the late filing of documents. First, the Respondent had omitted from its bundle evidence of emails sent in 2021 and 2022 to

3 landlords on a redacted spreadsheet who were existing licence holders under a previous licensing scheme, which included the Applicant’s hotmail email address (“the Mail Merge Evidence”). Second, the Tribunal noted that the Applicant had submitted a Supplemental Reply to the Respondent’s Supplementary Response with additional evidence (“the Applicant’s Additional Evidence”) outside of the steps directed by the Tribunal on 19 June 2025. Given that neither party objected to the inclusion of the other party’s late evidence, the Tribunal determined to include both documents in the bundle pursuant to the overriding objective at Rule 3 and its case management powers at Rule 6(3)(a) of The Tribunal Procedure (First-tier Tribunal) ([NAME] Chamber) Rules 2013.

7. The Respondent wished to clarify in relation to the Mail Merge Evidence that, at the time that those emails were sent, he was not an existing licence holder in relation to [NAME]. The Respondent’s previous licensing scheme related to other areas of Liverpool, and the Applicant was on the Respondent’s spreadsheet because he owned two other properties in areas where the previous scheme had applied, and he had the relevant licences for those other properties. The Tribunal and the Applicant acknowledged and noted that fact.

STATUTORY FRAMEWORK

Power to impose financial penalties

8. New provisions were inserted into the 2004 Act by section 126 and Schedule 9 of the Housing and Planning Act 2016. One of those provisions was section 249A, which came into force on 6 April 2017. It enables a local housing authority to impose a financial penalty on a person if satisfied, beyond reasonable doubt, that the person’s conduct amounts to a “relevant housing offence” in respect of premises in England.

9. Relevant housing offences are listed in section 249A(2). They include the offence (under section 95) of having control of or managing a house which is required to be licensed under Part 3 of the 2004 Act, but which is not so licensed.

10. Only one financial penalty under section 249A may be imposed on a person in respect of the same conduct. The amount of that penalty is determined by the local housing authority (but it may not exceed £30,000), and its imposition is an alternative to instituting criminal proceedings for the offence in question.

Procedural requirements

11. Schedule 13A to the 2004 Act sets out the procedure which [NAME] must follow in relation to financial penalties imposed under

4 section 249A. Before imposing such a penalty on a person, the local housing authority must give him or her a notice of intent setting out: • the amount of the proposed financial penalty; • the reasons for proposing to impose it; and • information about the right to make representations.

12. Unless the conduct to which the financial penalty relates is continuing, that notice must be given before the end of the period of six months beginning on the first day on which the local housing authority has sufficient evidence of that conduct.

13. A person who is given a notice of intent has the right to make written representations to the local housing authority about the proposal to impose a financial penalty. Any such representations must be made within the period of 28 days, beginning with the day after that on which the notice of intent was given. After the end of that period, the local housing authority must decide whether to impose a financial penalty and, if a penalty is to be imposed, its amount.

14. If the local housing authority decides to impose a financial penalty on a person, it must give that person a final notice setting out: • the amount of the financial penalty; • the reasons for imposing it; • information about how to pay the penalty; • the period for payment of the penalty; • information about rights of appeal; and • the consequences of failure to comply with the notice.

Appeals

15. A final notice given under Schedule 13A to the 2004 Act must require the penalty to be paid within the period of 28 days beginning with the day after that on which the notice was given. However, this is subject to the right of the person to whom a final notice is given to appeal to this Tribunal (under paragraph 10 of Schedule 13A).

16. The appeal is by way of a re-hearing of the local housing authority’s decision but may be determined by the Tribunal having regard to matters of which the authority was unaware. The Tribunal may confirm, vary or cancel the final notice. However, the Tribunal may not vary a final notice so as to make it impose a financial penalty of more than the local housing authority could have imposed.

RELEVANT GUIDANCE

17. A local housing authority must have regard to any guidance given by the Secretary of State about the exercise of its functions in respect of the imposition of financial penalties. Such guidance (“the HCLG Guidance”) was issued by the Ministry of Housing, Communities and Local Government in April 2018: Civil penalties under the Housing and

5 Planning Act 2016 – Guidance for [NAME]. It states that [NAME] are expected to develop and document their own policy on when to prosecute and when to issue a financial penalty and should decide which option to pursue on a case-by-case basis. The HCLG Guidance also states that [NAME] should develop and document their own policy on determining the appropriate level of penalty in a [NAME] case. However, it goes on to state:

“Generally, we would expect the maximum amount to be reserved for the very worst offenders. The actual amount levied in any [NAME] case should reflect the severity of the offence as well as taking account of the landlord’s previous record of offending.”

18. The HCLG Guidance also sets out the following list of factors which [NAME] should consider to ensure that financial penalties are set at an appropriate level:

a. Severity of the offence. b. Culpability and track record of the offender. c. The harm caused to the tenant. d. Punishment of the offender. e. Deterrence of the offender from repeating the offence. f. Deterrence of others from committing similar offences. g. Removal of any financial benefit the offender may have obtained as a result of committing the offence.

19. In recognition of the expectation that [NAME] will develop and document their own policies on financial penalties, the Respondent has issued its own Private Sector Housing Civil Penalties Policy (“[NAME]”). A copy of [NAME] was included within the bundle, and we make further reference to this policy later in these reasons.

BACKGROUND FACTS

20. The Respondent is responsible for the licensing of houses within its district under Part 3 of the 2004 Act. Since 1 April 2022, the Respondent has been operating a selective licensing scheme, pursuant to s.80 of the 2004 Act. The selective licensing scheme requires a licence to be obtained from the Respondent in order to control and/or manage certain privately rented properties situated in the designated areas which include the area of Anfield, where [NAME] is located.

21. On 4 March 2024, an investigating officer for the Respondent, Mr [RESPONDENT], visited [NAME] to assess whether [NAME] was being let. The occupiers of [NAME] confirmed that they were tenants and presented a tenancy agreement to Mr [APPELLANT] which showed the Applicant to be the landlord. Later that day, Mr [APPELLANT] received a telephone call from the Applicant during which the Applicant

6 said that he would make the application for a licence that day, although that did not happen.

22. From the tenancy agreement commencement date, the tenants of [NAME] moved in on 1 October 2023. From the register of title obtained from H.M. Land Registry, the Respondent also established that the Applicant, [NAME] [APPELLANT] was the registered leasehold owner of [NAME]. This was accepted by the Applicant at the hearing.

23. On 14 March 2024, a Respondent officer wrote to the Applicant under section 16 of the Local Government (Miscellaneous Provisions) Act 1976 to request certain information (the “s 16 Notice”). The Applicant did not respond to that notice, which is a separate offence.

24. The Applicant was invited to attend a voluntary interview under the Police and Criminal Evidence Act 1984 but did not attend.

25. On 16 April 2024, the Applicant made the licence application, and the licence was subsequently granted on 13 May 2024.

26. Following a Respondent case conference review meeting, the Respondent served the Applicant with a notice of intention to impose a financial penalty dated 24 September 2024 (“the Notice of Intent”). The Notice of Intent proposed a financial penalty of £6,750.00 (the “Penalty”).

27. The Penalty was calculated on the following factors: a. Level of culpability – High b. Level of harm – Medium c. Aggravating factors – None d. Mitigating factor – 25% reduction in penalty as the Applicant had no relevant unspent convictions or relevant cautions or civil penalties within the last two years.

28. According to [NAME], when calculating a financial penalty, the Respondent assesses the economic benefit to [NAME] owners to ensure that there is no financial benefit to the owner for non- compliance. In this case, the Council had found that the Applicant had made no economic gain from the offence and so no adjustment to the Penalty was made in that regard.

29. According to [NAME], the Respondent should consider whether there has been an early admission of guilt by the Applicant and, if so, should consider a reduction to the penalty amount, the maximum permitted level of reduction being one-third of the penalty amount. In this case, the Respondent considered that there had been no admission of guilt during the investigation or thereafter and so made no reduction to the penalty accordingly.

7 30. The Respondent received written representations from the Applicant on 27 September 2024 in which the Applicant set out details of his health issues.

31. The Respondent saw no reason to alter the Penalty, and, on 16 October 2024, the Final Notice was served upon the Applicant citing the Penalty.

32. On 1 November 2024, the Applicant submitted his appeal to the Tribunal in respect of the Final Notice.

The Applicant’s Submissions

33. The Applicant accepts that [NAME] was not licensed at the time that the Respondent conducted its visit on 4 March 2024. The Applicant confirmed, during the hearing, that he accepted there was a legal requirement on him to obtain the licence, and he had never denied that fact.

34. The Applicant submits that he has a reasonable excuse for not licensing [NAME] as he was not aware that a licence was required in that area of Liverpool due to exceptional personal health circumstances including major heart surgery and ongoing recovery. The Applicant underwent quadruple open-hear surgery in 2022, which was a major event in his life and a major shock to him and everyone around him. This overlapped with the period when the new selective licensing scheme was being rolled out, and it did not have his attention as it should have done. As a result, he was unaware that the scheme had expanded. Had he been aware, he would have applied for a licence. He made a mistake and it was not a deliberate attempt to avoid compliance.

35. The Applicant submits that he experienced ongoing health challenges, affecting his focus and management abilities and that there was a long- term impact of such major surgery, both physically and mentally.

36. He also submits that he did not receive and / or read communications from the Respondent. In [NAME], many emails often end up in his spam folder. He has a portfolio of work, a number of email accounts and a high volume of emails so he may have inadvertently missed emails. Keeping on top of his emails had become challenging.

37. He also submits that certain letters, although correctly addressed by the Respondent, may have been wrongly delivered to nearby properties which have similar addresses. There are two similar addresses in the vicinity, and the post deliveries are often mixed up between those addresses. Once he became aware of this investigation, he was more conscious of going to check at the other addresses to collect any wrongly delivered post. He would have acted on the letters once he received them.

38. In terms of the six-week delay between the Applicant becoming aware of the offence and him submitting the licence application, he does not accept that this shows wilful blindness. He took steps during that time

8 to make the application as best he could at the time and there was nothing more he could do. He called the Selective Licensing team at the Respondent two or three times before he finally spoke to a woman who assisted him with submitting the application. He also said during the hearing that he was 100% sure he asked Mr [NAME] for a remote interview under caution using Teams, because he did not want to travel due to his health, and that he was told the Respondent did not offer this. He was confused that there were two sets of proceedings going on because he was also being pursued by the Respondent in relation to his failure to respond to the s 16 Notice at that time. Responding within six weeks seemed reasonable to him.

39. The other Respondent team investigating the criminal offence of failing to respond to the S 16 Notice understood his medical issues and accepted the difficulties he had had with communications, and they had dropped that case.

40. In addition, the Applicant argues that the Penalty is excessive and manifestly disproportionate.

41. In calculating the financial penalty itself, the Respondent was wrong to find that culpability was high. He had made a genuine mistake and had dealt with it as best he could. The Applicant provided all the documents that he had to the Respondent as early as possible. Other documents took time to locate, and he had commissioned new ones to enable the application. He had provided the outstanding gas certificates prior to the hearing, but the Respondent had not taken account of them. In terms of the electricity safety records, a new consumer unit was installed in 2020 and the electrician who worked on [NAME] in 2023 had confirmed in writing that the consumer unit in 2023 was a relatively new one and all was in good order at that time. The Applicant had also submitted photographic evidence showing the work undertaken to [NAME] prior to the tenancy to support this.

42. The level of harm caused was nowhere near high level of risk. Again, the Respondent had not taken account of the historic gas certificates in its calculation. Everything at [NAME] had been in order. The photographs provided demonstrated how [NAME] had been upgraded and brought back into use by the Applicant. The Applicant submits that he has always been a good landlord.

43. The Applicant submits that the Respondent had not taken account of mitigating factors. In terms of whether he had made an early admission, he did not see where there was any scope for him to have done anything differently. He considered his accepting that he did not have the licence and then getting one to be the same thing as “agreeing” to the offence.

44. The Applicant submits that the Respondent has been inconsistent in the way that it has taken enforcement action against other landlords in the same block as [NAME] and one flat remains unlicensed.

9

The Respondent’s Submissions

45. The Respondent argues that the Applicant has not discharged the burden of proof to show that he had a reasonable excuse for failing to obtain the licence. Whilst the medical evidence provided by the Applicant confirms his operation in 2022, he was discharged from hospital in May 2022 and there is no evidence of treatment in 2023. The heart procedure was 16 months before the period of offending. The Applicant is an experienced landlord, operating a business as a director of a company and, by October 2023, he was well enough to be involved in signing the tenancy agreement for [NAME]. If the Applicant was unable to manage [NAME], he had the option of appointing an agent.

46. In terms of the level of Penalty, the Respondent refers to the case of [NAME] v (1) [NAME] (2) Ustek [2020] UKUT0035 (LC) and submits that this reinforced the importance of the Respondent’s own policy. [NAME] is the starting point and no real reason to depart from [NAME] has been put forward by the Applicant.

47. The penalty has been assessed in accordance with [NAME], as demonstrated by the detailed reasons provided by the Respondent with the notices.

48. In terms of culpability, the Respondent submits that Applicant either had actual foresight of or wilful blindness to the risk of offending since he was notified of the requirement and ought to have known. Details were sent to him by email on seven separate occasions in 2022 as evidenced by the Mail Merge Evidence. These were sent to the Applicant’s hotmail address which he confirmed to be an important and active account. A letter was also sent on 22 January 2024. Furthermore, the Applicant has experience as a landlord and a number of other properties and so ought to have been aware and had a duty to find out his obligations as a landlord.

49. Even if there was a lack of knowledge in 2022, there was knowledge in 2024, and this adds to culpability. The Applicant accepts that he was aware of the requirement from 4 March 2024, but the application for a licence was not made until 16 April 2024 which is a substantial delay. The Respondent relies upon further correspondence sent to the Applicant during this time. No evidence has been provided that the Applicant was confused or needed help with the process. Rather, in a voicemail left on 18 March 2025 by the Applicant to Mr [APPELLANT], the Applicant stated that he was arranging gas and electricity certificates so he could make the application. During this time, the Applicant failed to

10 engage including failing to comply with the s 16 Notice and to attend the interview under caution.

50. All correspondence was correctly addressed to the Applicant, and the Respondent submits that it is unlikely that all the letters, and in [NAME] the two crucial letters dated 22 January 2024 and 14 March 2024, went astray.

51. The Respondent submits that Mr [APPELLANT] wrote to the Applicant on 1 May 2024, following his failure to attend the interview under caution, stating that he had not heard from the Applicant and that that letter is evidence that the Applicant never asked for the interview to be held via Teams.

52. In terms of harm, even if a [NAME] is in perfect condition, the lack of licensing is an offence. The Applicant’s alleged responsible approach to [NAME] management and the state of [NAME] are not relevant. The licence is required so that the Respondent can have oversight of [NAME], and, therefore, a lack of a licence application undermines the role of the regulator.

53. The Applicant appears to have taken steps to obtain gas and electricity safety certificates after the offence was discovered and this indicates that those legally required documents were not held in advance. The new electricity safety certificate confirms, on the face of it, that the [COMPANY] was replaced suggesting that [NAME] was not safe beforehand.

54. Whilst the Respondent has acknowledged no actual harm was caused, the fact that the Applicant did not have the required certificates means that harm could have occurred and the risk was greater than it would have been.

55. In terms of mitigating factors, the Applicant’s medical issues 16 months prior to the offence had been considered by the Respondent and was covered in the Respondent’s detailed response.

56. The Applicant has never admitted the offence given his position that he had a reasonable excuse and so no reduction was made for an early admission of guilt. Mr [NAME] stated, during cross examination, that such an admission would need to have been made at the interview under caution which the Applicant did not attend.

57. The breach period is a prolonged period and is an aggravating factor which the Respondent could have had regard to.

58. [NAME] also went through a list of authorities provided by the Applicant and asserted that three cases could not be found, and that the other cases were either not relevant or the points made by the Applicant were not reflective of the actual decisions.

11

The Tribunal’s Deliberations and Determinations

59. The Tribunal, under paragraph 10 of Schedule 13A to the 2004 Act, may confirm, vary, or cancel a final notice, determining the matter as a re- hearing of the local authority’s decision.

60. In reaching its determination the Tribunal considered the relevant law and all evidence submitted, both written and oral, and briefly summarised above. The Tribunal also notes that the Applicant accepted that, at the relevant time, he was unlicensed.

Reasonable Excuse

61. Under s.249A of the 2004 Act, a local authority may only impose a financial penalty on a person if it is satisfied ‘beyond reasonable doubt’ that a person’s conduct amounts to a relevant housing offence. Pursuant to s.95(4) of the 2004 Act, the landlord has a defence to the offence if he had a reasonable excuse for having control of or managing [NAME] in question without a licence.

62. In deciding this question, the Tribunal considered the guidance set out by the Upper Tribunal in Marigold v Wells [2023] UKUT 33 LC. In paragraph 48 of the judgment, the Upper Tribunal referred to three steps which the First-tier Tribunal could use when deciding whether such a defence was established: firstly, which facts give rise to the offence; secondly, which of those facts were proven; and, thirdly, whether if viewed objectively those facts did amount to a reasonable excuse.

63. In terms of the impact of the Applicant’s health, the Applicant has provided evidence that he underwent major heart surgery on 16 May 2022. His medical records show that he was being investigated for heart problems from late 2021 and into early 2022, before being diagnosed with severe triple vessel disease of the heart in March 2022. He was discharged in respect of that surgery on 21 May 2022 but subsequently takes medication including an antidepressant. He gave oral evidence that that event continued to have an impact on him afterwards both physically and mentally. During cross-examination and in his closing submission, the Applicant was visibly distressed when speaking about the impact it had had on him mentally and found it difficult to elaborate on that subject. Whilst the letters from his GP dated 30 July 2024 and 5 September 2025 were produced in relation to different proceedings, the first letter talks about Mr [APPELLANT] suffering from “mental health problems” and that the proceedings which were the subject of that letter were “likely to cause a relapse of his mental health problems”, supporting the fact that the Applicant had been living with poor mental health for some time before that date.

64. However, the Applicant has not produced any medical evidence to demonstrate that he was incapacitated by his continuing health issues, physical or mental, during 2023 and 2024, and the evidence before the

12 Tribunal is that, by October 2023, he was well enough to let [NAME] and to deal with the paperwork and sign the tenancy agreement.

65. In terms of the difficulties which the Applicant said he experienced with communications, the Applicant gave frank evidence that he received an overwhelming amount of emails and that he probably had received some of the emails sent by the Respondent, and also that he had had to improve his process for managing emails including checking spam folders.

66. In terms of receiving letters by post, the Applicant also gave frank evidence that he accepted that the Respondent had correctly addressed letters to him and he may have received some letters but he was not 100% sure he did, and that could have been due to ongoing issues which he has had with his post being sent to two addresses in the vicinity with similar addresses. The two addresses referred to are indeed like his own address and near his address.

67. The Applicant had previously obtained the correct licences for his two other properties under a previous scheme, and he told the Tribunal that, had he been aware, he would have applied for the licence for [NAME].

68. The Tribunal accepts the Applicant’s evidence that the surgery had a major impact on his life and that it continued to have a significant impact on him afterwards, including mentally, and this caused the Applicant to overlook the roll out of the licensing scheme in 2022.

69. The Tribunal also accepts the Applicant’s evidence that he was not on top of his emails, some of which may have gone into his spam folder, and finds that this was exacerbated by the mental health issues he was experiencing.

70. The Tribunal also accepts the Applicant’s evidence that his post was misdirected on occasions and that he may have missed letters from the council due to this factor. Again, his ability to address this issue effectively was exacerbated by the mental ill health he was experiencing. However, the Tribunal cannot determine whether the Applicant received the letter of 22 January 2024.

71. In any event, the Tribunal accepts that the Applicant had not been aware of the scheme until March 2024, when contacted by the Respondent, and that, if he had been, he would have applied for the licence sooner. The fact that the Applicant had previously obtained selective licences for his two other properties under the Respondent’s previous licensing scheme is, in the Tribunal’s opinion, strong corroborating evidence of this.

72. As to whether the Applicant’s lack of knowledge of the scheme due to his circumstances amounts to a reasonable excuse, the Tribunal considers that, as a landlord, it was for the Applicant to make himself aware of all his legal obligations in respect of [NAME] and the requirements of

13 the Respondent. In the absence of additional medical evidence and on the evidence before the Tribunal, the Applicant is an experienced landlord and businessperson and, by October 2023, he was well enough to let out [NAME] (and to sign the tenancy agreement). At that stage, the Applicant should have taken steps to identify what was required of him by law or by way of the Respondent’s housing policy. Alternatively, he could have employed a managing agent to manage [NAME] for him.

73. Accordingly, the Tribunal determines that the Applicant’s lack of knowledge of the scheme due to his medical circumstances and difficulties with communications does not amount to a reasonable excuse.

Imposition and Level of Penalty

74. Given that the Applicant has not established a reasonable excuse defence, it follows that the Tribunal is satisfied, beyond reasonable doubt, that he has committed an offence under s.95(1).

75. The Respondent was entitled to consider whether to prosecute the Applicant under s.95(5) of the Act or impose a financial penalty under s.249A of the 2004 Act. The Tribunal is satisfied that it was appropriate for the Respondent to impose a financial penalty on the Applicant in respect of his failure to licence [NAME]. The Tribunal must therefore determine the amount of that penalty.

76. The Tribunal must make its own determination as to the appropriate amount of the financial penalty having regard to all the available evidence. In doing so, the Tribunal should have regard to the seven factors specified in the HCLG Guidance as being relevant to the level at which a financial penalty should be set (see paragraph 20 above).

77. The Tribunal should also have regard to [NAME]. As the Upper Tribunal ([NAME]) observed in Sutton & [NAME] v Norwich City Council [2020] UKUT 0090 (LC):

“It is an important feature of the system of civil penalties that they are imposed in the first instance by [NAME], and not by courts or tribunals. The local housing authority will be aware of housing conditions in its locality and will know if [NAME] practices or behaviours are prevalent and ought to be deterred.”

78. The Upper Tribunal went on to say that the local authority is well placed to formulate its policy and endorsed the view that a tribunal’s starting point in any case should normally be to apply that policy as though it were standing in the local authority’s shoes. It offered the following guidance in this regard:

14 “If a local authority has adopted a policy, a tribunal should consider for itself what penalty is merited by the offence under the terms of the policy. If the authority has applied its own policy, the Tribunal should give weight to the assessment it has made of the seriousness of the offence and the culpability of the Applicant in reaching its own decision.”

79. Upper Tribunal guidance on the weight which tribunals should attach to a local housing authority’s policy (and to decisions taken by the authority thereunder) was also given in [NAME] decision of the [NAME]: London Borough of [NAME] v [NAME] & [NAME] [2020] UKUT 0035 (LC): whilst a tribunal must afford great respect (and thus special weight) to the decision reached by the local housing authority in reliance upon its own policy, it must be mindful of the fact that it is conducting a rehearing, not a review: the tribunal must use its own judgment and it can vary such a decision where it disagrees with it, despite having given it that special weight.

80. Whilst the Tribunal has given very careful consideration to the decision reached by the Respondent and the reasons for the same, the Tribunal disagrees with the Respondent’s assessment of the level of culpability and harm. The Respondent assessed culpability to be high and harm to be medium.

81. In respect of culpability, according to [NAME], the Applicant must have had “actual foresight of, or wilful blindness to, risk of offending but risk nevertheless taken” to be classified as high.

82. As previously stated, and for the reasons stated above, the Tribunal accepts that the Applicant had not been aware of the selective licensing scheme until March 2024 and so the Applicant did not have actual foresight or wilful blindness of the risk up to March 2024.

83. In respect of the period between March 2024 and the Applicant making the application on 16 April 2024, the Tribunal does not accept the Respondent’s submission that the Applicant failed to engage during that period; even according to Mr [APPELLANT] witness evidence, the Applicant had contacted him four times by telephone, voicemail and text message during this time. Mr [NAME] witness evidence acknowledged that, during those conversations, the Applicant told him he was taking steps to enable him to make the application by obtaining new gas and electricity certificates and also that he had been struggling with the application process. The Tribunal has no reason to doubt the Applicant’s evidence that he also spoke to the Selective Licensing department during this period but found it difficult to obtain the assistance he required until he eventually spoke to a [NAME] who helped him through the process step by step. The Tribunal finds that this activity by the Applicant showed that the Applicant was engaged in the process of making the application during this time albeit slowly.

15 84. In relation to the s 16 Notice which the Applicant failed to respond to, the Tribunal has accepted the Applicant’s evidence that his post was misdirected on occasions and that he may have missed letters from the Respondent due to this factor and also that his ability to address this issue effectively was exacerbated by the mental health issue he was experiencing. However, the Tribunal cannot determine whether the Applicant received the letter of 14 March 2024. In any event, the department at the Respondent dealing with that matter has not pursued separate proceedings in relation to that offence, and so it would appear that they did accept the Applicant’s explanation as to why he did not respond to the notice. Therefore, the Tribunal does not consider that the Applicant’s failure to respond to the s 16 Notice alone is evidence that he was “wilfully blind” to the requirement for a licence.

85. In relation to the invitation by the Respondent to the Applicant to attend an interview under caution dated 15 April 2024, the Tribunal notes that the application for the licence was made on 16 April 2025 and so it does not consider that the question of whether or not the Applicant responded to or ignored the letter of 15 April 2025 is a relevant consideration in terms of the level of culpability of this offence. That said, for the record, the Tribunal notes that the Respondent’s letter dated 1 May 2024 corroborates the Respondent’s version of events. On balance, the Tribunal prefers the Respondent’s evidence on that basis and suspects that the Applicant may have spoken to the Respondent after he received the latter letter and misremembered the order. However, the Tribunal has no reason to doubt such a confident recollection by the Applicant that he did request an interview by Teams call and finds that it is likely that this proposal was made by the Applicant in the subsequent call. Further, the Tribunal notes again its previous findings in terms of the difficulties which the Applicant was having, generally, in terms of the receipt of his post and the management of his affairs due to his physical and mental health.

86. In relation to the procurement of new gas and electricity certificates for [NAME] by the Applicant, the Applicant has since produced the missing gas certificates to show that these were obtained at the requisite times and has also produced further evidence in relation to the condition of the electrics at [NAME]. Therefore, the Tribunal accepts the Applicant’s explanation for procuring new certificates simply for speed because he anticipated it would take longer to find the old ones.

87. As stated above, the Tribunal accepts the Applicant’s evidence that the surgery had a major impact on his life and that it continued to have a significant impact on him afterwards, including mentally. This was also a factor playing into his ability to deal with the application promptly and effectively at this time.

88. Considering the above, whilst the Applicant did not apply for the licence immediately upon being aware of the requirement, the Tribunal finds that he was engaged and taking active steps during this time to achieve that end. Whilst six weeks is not an insignificant delay, in the context of

16 the difficulties faced by the Applicant, including mental ill health, it was not a very significant delay. The Tribunal accepts the Applicant’s evidence that he dealt with it as best he could and that he believed that the time he took was reasonable to make the application. On that basis, the Tribunal does not consider that there is any evidence that the Applicant had “actual foresight of or wilful blindness” to the risk of offending during this period.

89. [NAME], culpability is assessed as medium if the offence was “committed through act or omission which a person exercising reasonable care would not commit” or that “systems were in place to manage risk or comply with legal duties but these were not sufficiently adhered to or implemented”. The Tribunal considers that the Applicant’s conduct rightly falls within this category both prior to and after March 2024. In [NAME], after March 2024, during the six week period, the Tribunal considers that the Applicant was in the process of making the application in good faith but did not do so quickly enough and that a person exercising reasonable care would have submitted the application more quickly and / or he did not adhere to or implement the process of applying for the licence sufficiently (quickly, in this case).

90. In respect of harm, under [NAME], to be assessed as medium harm, there must have been “Adverse effect on individual(s) but not amounting to High Harm” or “Medium Risk of adverse harm to an individual or low risk of a serious adverse effect” or “The Council’s work as a regulator is undermined by the offenders behaviour” or “Consumer / tenant misled”.

91. There is no suggestion here that there is any actual adverse effect on individuals or a consumer / tenant misled.

92. The Respondent’s assessment of harm was partially based upon the fact that the Applicant had procured new gas and electricity safety records prior to the submission of the licence application and the Respondent’s inference that this meant that the Applicant had not complied with his legal obligations prior to this, such that there was a risk of harm to the tenants. However, there is no evidence of any risk of harm to the tenants. The Applicant has since provided gas safety certificates for the missing years 2022 and 2023 demonstrating that he had fully complied with his obligations in that regard. In relation to the electricity report, the Applicant has produced a valid condition report for 2020-2025 also demonstrating that he had fully complied with his obligations in that regard. Whilst the 2024 report does indicate on the face of it the “replacement of a distribution board”, the Applicant has demonstrated that significant work was undertaken to upgrade [NAME] in 2020, as evidenced by the photographs, and the photographs appear to show before and after the replacement of the distribution board, and it would make sense for such works to have been undertaken at the same as the refurbishment of [NAME]. The Applicant has also provided evidence from an electrician that all was in order in 2023. Therefore, the

17 Respondent’s inference that the Applicant was aware of safety issues related to the electrical installations prior to obtaining that later report appears to be mere speculation. As set out above, the Tribunal has accepted the Applicant’s explanation for procuring new certificates simply for speed because he anticipated it would take longer to find the old ones. Based upon the above, the Tribunal determines that the Respondent was wrong to assess that there was a medium risk of adverse harm or a low risk of a serious adverse effect.

93. The Respondent’s assessment of harm was also based upon its view that its work as a regulator was undermined by the offender’s behaviour. The Tribunal considers that it cannot be the case that the lack of a licence application alone undermines the role of the regulator, since, if that was the case, this category would apply to every offender. The Respondent has not identified any other reason or evidence to justify this categorisation. Furthermore, the Tribunal noted that Mr [NAME] confirmed during his oral evidence that, as far as he was aware, no one from the Respondent had been to inspect [NAME] to date, even since the licence had been obtained, demonstrating that the Respondent’s work as a regulator had not be undermined because the Respondent had not sought to use its powers in that regard. In the circumstances, the Tribunal finds that the Respondent was wrong to assess that the Applicant’s conduct had undermined the Respondent’s work as a regulator.

94. Considering the above, the Tribunal determines that, under [NAME], the level of harm is low, there being a low risk of adverse effect on an individual(s).

95. Based upon the Tribunal’s findings of culpability and harm, the starting point for the penalty based upon [NAME] is £4,500. However, when the Respondent imposed the penalty, it decided to impose the penalty at the lower end of the band range (which was £9,000) on the basis that the Applicant had eventually licensed [NAME]. The Tribunal considers it is reasonable to adopt the same approach here on the same basis, and so the Tribunal takes the starting point as £3750 which is the lowest end of the penalty band range.

96. The Tribunal then went on to consider the aggravating and mitigating factors considered by the Respondent.

97. The Tribunal agrees with the Respondent’s assessment that there are no aggravating factors in the current case.

98. The Tribunal considers that the Respondent was wrong to consider there were only three mitigating factors (being no relevant unspent convictions or relevant cautions or civil penalties within the last two years). The Respondent has omitted to consider other mitigating factors which apply in the circumstances. In [NAME], the Respondent has failed to consider the mitigating circumstances relating to the fact that the Applicant previously correctly licensed two other properties, and

18 relating to general good management and the condition of [NAME], which considerations the Tribunal considers are provided for in [NAME]’s list of mitigating factors (which is an non- exhaustive list in any event).

99. The Tribunal considers that there are seven mitigating factors, in accordance with [NAME]. Those factors are as follows:

a. No relevant unspent previous convictions / good character – The Applicant has no previous convictions. b. No relevant cautions within the last two years – The Applicant has no previous cautions. c. No relevant civil penalties within the last two years – The Applicant has no previous civil penalties. d. One-off event, not commercially motivated – The Applicant has two other properties in Liverpool and has correctly obtained selective licences for those other properties. e. Good record of maintaining [NAME] – The Applicant has demonstrated a good record for maintaining [NAME]. f. Serious medical condition – the Applicant has provided evidence of a serious medical event and the Tribunal has found that, whilst the operation was in 2022, it has had a serious ongoing impact on him including mentally. g. Steps taken voluntarily to remedy problem – whilst the Applicant has taken six weeks to submit the application, he has demonstrated his active engagement during this time.

100. [NAME] does not set out a specific % reduction for mitigating factors. Given that the Respondent applied a 25% discount for the three mitigating factors it identified, the Tribunal considers that a total discount in respect of the seven mitigating factors of 50% is reasonable and appropriate which reduces the penalty from £3,750 to £1,875.

101. In accordance with [NAME], the Tribunal must review the penalty and, if necessary, adjust the initial amount arrived at to ensure it fulfils the general principles in the policy. [NAME] goes on to state that “the civil penalty should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence”.

102. The Tribunal agrees with the Respondent’s finding that no economic benefit was derived from the offence and so no adjustment was made in that regard.

103. The Tribunal disagrees with the Respondent’s approach in not making a reduction for an early admission of guilt. There is no evidence that the Applicant has ever denied his failure to comply with the legal obligation to obtain the licence and the fact that he has asserted that his personal circumstances gave rise to a reasonable excuse defence does not distract

19 from his acceptance of the breach itself. The Tribunal does not agree with Mr [NAME] oral evidence that the only mechanism by which the Applicant could have made a valid admission of guilt was at the interview under caution (which the Applicant did not attend) not least because the interview was after the Applicant had submitted the licence application. The Tribunal considers that by acknowledging his oversight and telling the Respondent that he would resolve the issue by applying for the licence (and then by taking active steps to make the application albeit slowly) the Applicant did make an early admission. The Tribunal considers that a reduction of 20% on account of that early admission is appropriate which reduces the penalty from £1,875 to £1,500.

104. The Tribunal finds that a penalty of £1,500 is significant enough to act as a punishment to the Applicant as well as a deterrent not just to the Applicant, but also to other landlords and potential landlords. The Tribunal consider that the imposition of a penalty of £1,500 meets the objectives of the Policy in a fair and proportionate way in the circumstances of this case.

OUTCOME

105. For the reasons explained above, we vary the decision of the Respondent to impose a financial penalty on the Applicant. We do not consider that [NAME] was properly applied in respect of the penalty. However, following the Applicant’s appeal to this Tribunal and a re-hearing of the Respondent’s decision, the Tribunal has determined that under [NAME] the amount of the penalty should be £1,500. The imposition of such a financial penalty is appropriate in the circumstances of this case: not only does it reflect the offending conduct, but it should also have a suitable punitive and deterrent effect.

106. Accordingly, we vary the Final Notice. The Applicant must therefore pay a financial penalty of £1,500 to the Respondent.

Signed: J. Hadley Judge of the First-tier Tribunal Date: 25 November 2025