First-tier Tribunal Confirms Financial Penalty for Housing License Violation

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : MAN/00CG/HNA/2018/0032

Property : 112, [ADDRESS] [POSTCODE]

Applicants : [redacted]

Respondent : [redacted]

Type of Application : Appeal against a financial penalty imposed under Section 249A & Schedule 13A Housing Act 2004

Tribunal Member : [NAME] [NAME] of Decision : 16th April 2019

Order : The decision to impose a financial penalty notice in respect of 112, [ADDRESS], Sheffield is confirmed. The amount of that penalty shall be £2,6250.00.

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A. Application

1. The Tribunal has received an application under paragraph 10 of Schedule 13A to the Housing Act 2004 (“the Act”) against a decision of Sheffield City Council (the “local housing authority”) to impose a financial penalty against the Applicant under section 249A of the Act.

2. This penalty relates to an offence that the Council determined had been committed by the Applicant in relation to a failure to comply with a condition attached to a licence granted in respect of dwelling house in an area of selective licensing under the regime established by the Act. The Condition in question being a requirement placed upon the Applicant to attend an approved course for residential landlords.

3. The Tribunal has sent a copy of the application to the Respondents.

4. Directions were given by the Deputy Regional Judge of the Tribunal for the further conduct of this matter.

5. Those directions have been complied with sufficiently for the Tribunal to be able to determine the application.

B Background

6. The Applicant is the owner of 112, [ADDRESS], Sheffield that is within the area designated by the Council, as the local housing authority, under its powers to impose selective licencing requirements in furtherance of its duty to ensure the maintenance and improvement of housing standards within the city.

7. The Applicant has obtained an appropriate licence, having done so in 2014. It appears that it is a standard requirement of the Council that attendance should be made at an appropriate course and this was a condition of the licence. Details of course providers were provided and such courses were initially free within the City. There appears to be no doubt that the Applicant satisfied all the initial requirements to obtain a licence and there appears to be no complaint as to the standard of accommodation he provides (here and at two other properties within the City where there appears to have been the same licence condition applied).

8. The Applicant accepts that he did not attend a relevant course. His reason for this appears to be that as a working man, attendance was impossible on a weekday and no suitable weekend courses could be found

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9. The local housing authority indicated in regular correspondence that, firstly, the condition needed to be satisfied and then, when this had not happened, it had formed an intention to impose a financial penalty, confirmed by a final notice dated 19th October 2018. The amount of the penalty is £3,500.00. The basis upon which the assessment of the penalty was made is set out at page 128 of the Respondent’s extensive bundle of documents provided to the Tribunal.

10. The Applicant did not protest the imposition of the licence condition at the time the licence was granted and does not appear to have contested the finding that he had committed a relevant offence until the lodging of his appeal against the penalty with this Tribunal.

C The Law 10 It is appropriate at this stage to set out the various statutory and regulatory provisions that the Tribunal needed to take into account in coming to its decision.

In relation to the commission of a relevant offence and imposition of a financial penalty 11 Section 249A of the Act provides; (1) The local housing authority may 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 (2) In this section “relevant housing offence” means an offence under- (c) Section 95 (licencing of houses…) (3) Only one financial penalty under this section may be imposed on a person in respect of the same conduct.

12 Section 95 0f the Act provides: (1) A person commits an offence if he is a person having control of or managing a house which is required to be licensed but is not so licenced (2) A person commits an offence if- (a)… (b) he fails to comply with any condition of the licence.

13 Section 87 of the Act sets out the requirements to be met in any application, those being- (1) …made to a local housing authority (2) …made in accordance with such requirements as the authority may specify (3) …be accompanied by any fee required by the authority

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(4) … comply with any requirements specified by the authority subject to any regulations made under subsection (5) (5) The appropriate national authority may by regulations make provision about the making of applications under this section (6) Such regulations may, in particular, specify the information, or evidence, which is to be supplied in connection with applications.

14 Regulation 7 and Schedule 2 of the Licensing and Management of Houses in Multiple Occupation and other Houses (Miscellaneous Provisions) (England) Regulations 2006 (“the 2006 Regulations”) provide a whole raft of requirements to be satisfied in an application, but the Tribunal is not concerned on this occasion with these. The Applicant did satisfy them within an application that was in due course made for an appropriate licence.

15 Section 90 of the Act grants the power to the local housing authority to attach conditions to the licence. Schedule 4 refers to mandatory conditions and Section 90 itself to some discretionary conditions, none of which relate to attendance at any course for a landlord. But is clear that the conditions listed are not exhaustive.

16 Paragraph 10 of Schedule 13A of the Act provides (1) A person to whom a final notice is given may appeal to the First-tier Tribunal against- (a) The decision to impose the penalty, or (b) The amount of the penalty (2) If a person appeals under this paragraph, the final notice is suspended until the appeal is finally determined or withdrawn (3) An appeal under this paragraph- (a) Is to be a re-hearing of the local authority’s decision, but (b) May be determined having regard to matters of which the authority was unaware (4) On an appeal under this paragraph the First-tier Tribunal, may confirm, vary, or cancel the final notice (5) The final notice may not be varied under sub-paragraph (4) so as to make it impose a penalty of more than the local housing authority could have imposed.

D The evidence

17 The Applicant’s case is quite simple and is put clearly in the application form he submitted to the Tribunal and then in his response, dated 13th March 2019, to the Respondent’s statement of case. He makes the following points: (1) He is no longer the owner of 112, [ADDRESS], having disposed of the property on 7th February 2019.

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(2) He has not committed a relevant housing offence as he can find no mention of a failure to comply with a licensing condition amounting to an offence. (3) He has caused no harm to tenants as a result of his failure to attend a relevant course. (4) He provided details of his current financial position upon which any financial penalty should now be based.

18 The Respondent provided an extremely comprehensive bundle of documents including a statement as to the history of the matter from [NAME], a Senior Private Housing Standards Officer of the Council, together with the detailed selective licensing policy and financial penalty policy. The thrust of the statements, in combination with the policies, was to establish (1) That a relevant housing offence had been established (2) That the Respondent had in place, and operated, appropriate procedures to establish this, including attempts to establish contact to avoid any process towards a penalty if this can be avoided (3) The duty imposed upon the Respondent in relation to its obligations to improve housing standards, which it had chosen to do by imposing a licensing scheme over parts of the city justified the imposition of a financial penalty (4) The policy that was in place and the manner in which it had implemented it, also justified the level of the penalty that had been decided upon.

19 The Tribunal accepts that it should not seek to interfere unnecessarily with the due process that had taken place and there was nothing to suggest that any of the Respondents actions, or decisions, in this case are fundamentally flawed or incorrect.

E Determination

20 The Tribunal reminds itself, however, that these proceedings being conducted by way of a rehearing. It takes on board the observations that the Tribunal should consider carefully that the Respondent had taken considerable care to put in place both a licensing policy and a policy for the imposition of financial penalties where appropriate and had provided clear documentary evidence of how they had been applied to reach the conclusion that it had in relation to the Applicant.

21 Indeed, the Tribunal accepts that the policies are the direct result of the democratic process whereby the Respondent seeks to fulfil its statutory duty by seeking from its officers a clear and rational process for doing so.

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22 The Tribunal also has a duty: to re-hear the case against the Applicant. It has done so with the policies of the Respondent always within its mind. It offers no criticism of the thorough manner in which the Respondent has approached this case and the documented procedures it has followed.

23 Has an offence been committed? The first question the Tribunal must ask itself is whether an offence has been committed. The clear answer is yes. Section 95(2)(b) of the Act specifically refers to an offence being committed if there is a failure to comply with a licence condition.

24 Nothing that the Tribunal saw, or heard, suggests that the Applicant has any defence to criminal liability. The excuse put forward for the failure to attend a relevant course are not reasonable. The Tribunal would have expected the Applicant to have been able to find a course at some point between the granting of the licence and the decision to take action in respect of the failing. The Tribunal notes from the financial information provided by the Applicant that the income from employment is such as to indicate he is not in full time employment and therefore would be able to make time available for attendance. At the time of the alleged offence the Applicant was the owner of the house. Any subsequent sale is irrelevant.

25 The Tribunal is so satisfied that it is sure that the offence has been committed.

26 What sanction is appropriate to mark the commission of the offence Under the financial penalty regime, the Respondent, in the event of an offence having been committed, has available to it an amount of up to £30,00.00 that it can impose as a penalty. It has provided and explained its matrix and methodology to support its finding that an amount of £3,500.00 is appropriate.

27 The Tribunal would, limit its observations in relation to the application of the penalty policy to the following matters. (1) Whether the Applicant gave any admission of guilt during or after the investigation, or thereafter? The Tribunal takes the view that he has done so and put forward mitigation. If the Respondent is basing its assessment of a penalty in terms of a matrix that has many similarities in its form to that applied in criminal proceedings within the criminal justice system credit for an early admission of guilt is important. The Tribunal believe that the Applicant is entitled to some credit. That credit in the criminal justice process would be a 30% discount from the amount that would be imposed on a person of previous good character (such as the Applicant) who had not admitted guilt. The Tribunal does note that the Applicant waivers upon the issue of guilt when he makes

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his final submission to the Tribunal, but there is no doubt he accepts that he failed to attend a course and has an entitlement to seek the Tribunal’s view as to whether this amounts to an offence (2) The determination of the offence falling within the bands of medium culpability and low harm, as reviewed by Mr [NAME], are, to the Tribunal’s view, correct. The Tribunal would therefore accept the basic determination that a starting point of £3,500.00 is correct. The Applicant has been lax in fulfilling the licence requirement. (3) There was some information provided at the time the penalty was finally imposed relating to the financial circumstances of the Applicant. This has not changed to such an extent that the Tribunal now has significantly different information to consider (4) Part four of the Respondent’s checklist (at page 8) refers to a review of the overall penalty to ensure that it deals adequately with a number of factors: • Severity of the offence • Culpability and track record of the offender • Harm caused to the tenant • Punishment of the offender • Deterring the offender from repeating the offence • Deterring others from committing offences • Removing financial benefits gained from committing the offence and the Tribunal is satisfied that in considering these matters in the context of this case the Applicant is certainly not a “rogue landlord” according to any application of that term. The offence committed appears to have no direct impact upon housing standards, adversely affected any tenant, or contributed to any additional gain for the Applicant. He also appears to be a man of previous good character.

28 The effect of the above is to reduce the amount of the penalty by a small amount, by applying a deduction of 30%. This makes the final penalty £2,625.00.

[NAME] (CHAIRMAN)

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