First-tier Tribunal Upholds Financial Penalty Against Tenant

OUTCOME: Dismissed

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case reference : LON/00BH/HNA/2023/0061

Property : 21 [ADDRESS] [POSTCODE]

Applicant: [redacted]

Respondent : [redacted]

Type of [NAME] : Appeal against a financial penalty, Housing Act 2004, s 249A and Sch 13A

Tribunal members : Prof [NAME]

Mr [NAME], FRICS

Venue and date of hearing : 10 [ADDRESS] [POSTCODE]

14 February 2024

Date of decision : 22 April 2024

DECISION

Decision of the tribunal

The Tribunal dismisses the appeal.

Introduction

1. By an [NAME] under section 249A and Schedule 13A of the Housing Act 2004 (“the 2004 Act”), the Appellant appeals against a financial penalty imposed by [NAME].

2. The property is a terraced house on a residential street in Walthamstow.

3. The Appellant is the freeholder of the property. It is not contested that the property is let, and is in a selective licensing area that requires a licence from the Respondent.

4. The original designation of the selective licensing area in which the property is located lasted from 1 April 2015 until 31 March 2020. It was succeeded, on 1 May 2020, by another selective licence designation, the area of which also included the property. We refer to these as the first and second schemes.

5. The Appellant held a licence under the first scheme.

6. The date on which the Respondent said that the offence was committed was 31 March 2021 (some of the written material, including witness statements, erroneously specified it as 29 March. There was no objection to its correction in evidence before us).

The hearing

Introductory

7. [NAME], a solicitor, represented the Appellant. Mr [COUNSEL] of counsel represented the Respondent.

8. We heard evidence on both liability and quantum for the Respondent from Ms [RESPONDENT] and Ms [RESPONDENT], both of whom were cross-examined by [NAME], and from [APPELLANT], who was cross examined by Mr [APPELLANT].

Adjournment

9. As a preliminary matter, we dealt with an [NAME] to adjourn that had initially been raised in correspondence. The procedural judge had declined to adjourn on the papers and referred it to us as the Tribunal hearing the appeal to decide.

10. The issue arose because Ms [RESPONDENT], who was the Respondent’s environmental health enforcement officer with primary responsibility for the case was unable to be present as a result of a serious family issue. It was Ms [NAME] witness statement that set out the main primary facts upon which the Respondent relied. The original bundle also included a witness statement from Ms [NAME], who was Ms [NAME] immediate line manager.

11. In its reply bundle, the Respondent had supplied a further witness statement, from Ms [NAME], the team manager of the private sector housing and licensing team as a whole.

12. Mr [NAME] argued that, given that the only issue was reasonable excuse, everything relevant to that in Ms [NAME] witness statement could be spoken to by Ms [NAME] and Ms [NAME], who Mr [NAME] could cross examine.

13. Mr [NAME] submitted that in order to establish the defence of reasonable excuse it was necessary to explore in cross examination everything that the witnesses had said in their statements.

14. We concluded that that we could see no possible unfairness in hearing the case now, with Ms [NAME] available for cross examination by [NAME], given the issue before us. We said that if it transpired, after we had heard the evidence, that Mr [NAME] could point to any possible unfairness, we would reconsider the position at that point. Mr [NAME] did not do so.

Liability: the reasonable excuse defence

15. The appeal being by way of rehearing, we heard the Respondent’s evidence as to liability first. It was not contested that a licence was required on the relevant date, and that no licence was in place. Rather, the case that the Respondent’s witnesses were addressing, as set out in the Appellant’s bundle, was that she had a reasonable excuse.

16. Specifically, the Appellant’s case was that she applied for a licence in 2018, which, she said, was of five years duration. She did not receive a copy of the licence through the post or by email, and assumed that it had been granted. There was a problem with post received at her address, in that her post was frequently delivered to waste disposal facility close to her house. There was evidence relating to two email addresses of the Appellant. We refer to one as the “[NAME]”, and the other, her work account, as the “nhs account”. We understand it also to be her case that emails to her nhs account, which she used in her 2018 [NAME], may have gone to the spam folder, which automatically deleted emails after a week.

17. Ms [NAME] was able to adopt Ms [NAME] evidence as stated in her witness statement, save for (in substance) her account of her visit to the property on 31 March 2021. The information was held on various systems to which Ms [APPELLANT] had access.

18. The Respondent had granted the Appellant a license under the first scheme in March 2018. The licence was exhibited to Ms [NAME] witness statement. It states on its face that its duration is from 7 March 2018 to 31 March 2020. In cross-examination, Ms [NAME] was to say that she believed that this licence would have been posted by first class post, and there was no certificate of posting.

19. The Respondent had taken extensive steps to publicise the scheme, both before and after it commenced. This included information on the Respondent’s [NAME], articles in local newspapers and poster advertisements. Further, 17,409 landlords who had held licences under the previous scheme were subscribers to the Respondent’s emailed newsletters designed for private sector landlords. Some of the Respondent’s evidence appeared to suggest that previous licence holders had been automatically signed up to receive the newsletters. At the end of the evidence, it was clear that this was not the case – the subscribers had to individually sign up to receive the newsletters on the Respondent’s [NAME] (see below).

20. A total of six newsletters had been sent from February 2020 to October 2020. The scheme also featured on the websites of the National Landlords Association, various estate agents active in the locality and on the [NAME].

21. When the second scheme started, there was an initial period subject to a discounted licence fee (the early bird period). At the close of that, the Respondent carried out an audit designed to identify properties licenced under the first scheme in respect of which no [NAME] for a licence had been made under the second scheme. This identified the property. The Respondent accordingly wrote to the Appellant on 2 February 2021, explaining that if the property was still let, it required a licence under the second scheme.

22. Ms [NAME] (with whom the progressing of the case fell after Ms [APPELLANT] visit to the property) received an email from the Appellant on 2 October 2021 from the Appellant’s [NAME]. The email was exhibited. In it, the Appellant says she was surprised to receive the notice of intent, as she “was made to understand” her licence (under the first scheme) lasted for five years. Ms [APPELLANT] email the Appellant in reply on 29 October 2021 to the effect that she had treated the email as a representation in respect of the notice of intent, and forwarded it to the relevant person to respond.

23. It was put to Ms [APPELLANT] that the Appellant’s reply was by way of an enquiry, and that it was unfair that the late reply treating it as a representation effectively meant she did not have the opportunity to make a response, given the 28 day time limit running from 29 September. She said that the Appellant could have come back with further representations, as it was her understanding that the time limit clock stopped when a representation was received. The Appellant did not respond to Ms [APPELLANT] email at the time, but did then email again on 12 April 2022, saying “no one has been in contact with me following your email of 29/10/2021”.

24. It was Ms [NAME] evidence that there is a list of those landlords who subscribe to the newsletters on the Respondent’s database, and the Appellant was on that list. Ms [APPELLANT] witness statement exhibited a computer generated list of subscriptions for the Appellant’s nhs account. On of those was a “[NAME]” entry, which represented subscription to the newsletters. It was Ms [NAME] evidence that, to receive a newsletter (or various other information products) from the Respondent, it was necessary for the person concerned to go onto the [NAME] and create an account, then opt into the relevant categories of information. The record showed that the Appellant’s nhs email account had signed up for the newsletters on 17 July 2019.

25. The evidence was that, in relation to the first scheme, initially it was understood that licences could only last for the duration of the scheme itself. Thus, a licence issued on the first day of the scheme could last for five years, but for a decreasing length of time for every day thereafter. In 2019, the legal advice available to the Respondent changed, and it decided that it could give licences running beyond the end date of the scheme during which they were issued. Ms [NAME] produced three further newsletters, issued in 2019, which publicised the fact that, in the light of the new advice, landlords could apply to vary their licences to a full five years. The newsletters also advertised the start of the second scheme. It was uncontested that the Appellant had not applied for an extension (and her case that she was unaware of the possibility or necessity).

26. The Appellant’s evidence was that she thought that the licence that she had received in 2018 was for five years. She did not receive a copy of the licence, either by post or email. The only time she did receive it was as an attachment to a letter from a Mr [NAME] dated 2 February 2023. Mr [NAME] was another team manager to whom the responsibility to respond to the Appellant had passed some time before December 2022.

27. The Appellant explained that there were on-going issue with post at her address. There was a nearby waste disposal facility which used the same address and post code as she did, and as a result many letters addressed to her were delivered there, and she received much of the facility’s post. It was difficult to gain access to the facility to retrieve letters. She exhibited letters to the [NAME] complaining about the situation.

28. In answer to questions from the professional member, the Appellant said that she had lived at the address for 19 years, and had never been able to retrieve any post from the waste disposal facility.

29. The Appellant’s email of 2 October 2021 was a query, it was not a representation in response to the notice of intention. In her witness statement, she said that if she had received a reply “on time” which answered her query, she would have made a formal representation in relation to the notice.

30. The Appellant said that both her sky and nhs emails were still active, the former for her private affairs, the latter for work. It was not contested that it was the nhs account that was given in her 2018 [NAME] for a licence.

31. In cross examination, Mr [RESPONDENT] asked her if she had chased the Respondent for a copy of the licence when she did not receive it. She said she had not, because if it had not been granted, the Respondent would be after her, so she assumed it would be granted. Mr [RESPONDENT] then asked if she thought it was the Respondent’s responsibility to contact her to tell her what to do to avoid committing a crime. She said yes, it was. The Respondent should have contacted her near the time that a new licence was required, on an analogue with an [COMPANY] contacting a client when it was time to renew an insurance policy.

32. Mr [NAME] took her to the computer generated list of subscriptions attributed to her nhs account. She said that the entry relating to the newsletters must be wrong, because she had not been in contact with the Respondent since she made the initial licence [NAME]. The only [NAME] she had made since then was in relation to parking permits (which also appears in the list), and that was done by her practice manager. She subsequently said that she did not go onto the Respondent’s [NAME] except in relation to parking permits.

33. The Appellant said that, had she seen the notifications in relation to variation of licence in the newsletters, she would have renewed her licence, but she did not receive any of the newsletters.

34. The Appellant had not received the letter of 2 February 2021, warning her about the need for a selective licence under the second scheme if the property was still let. She had received the letter with the notice of intent, but had not had an answer to her query.

35. The Appellant said that she did apply for the licence as soon as she knew that she needed one. She had responded to the notice of intent with a query as to whether she needed a licence, and that was not answered until the letter of 20 February 2023, which she did receive. The licence [NAME] had been completed by 13 April 2023 (the gap being explained by the need to do things like measure the rooms in the property)

36. Mr [APPELLANT] asked the Appellant how she kept up to date with her responsibilities as a landlord. She answered that she had a professional advisor. It transpired, however, that the advisor was a general financial advisor, and she agreed that she did not have an advisor she could ask about licensing matters. She said that she had not otherwise taken advice on her legal obligations as a landlord. Rather, she relied on the Respondent.

37. In his submissions, Mr [APPELLANT] argued, first, that the Appellant had given no justification for her assumption that the licence granted in 2018 lasted for five years. The letter of 20 February 2023 from Mr [NAME] made it clear that the [NAME] at that time stated that all licences were for a period of up to five years, not that they all lasted for five years. She did not chase the Respondent at any time after the [NAME] was made in 2018. Secondly, he invited us not to accept that the Appellant did not receive the letters in March 2018 including the licence, or that dated 2 February 2021, but did receive the notice of intent, sent to the same address. Thirdly, in any event, the Respondent were not required to inform her of the need to licence. The obligation is hers.

38. As to the question of [NAME] representations, Mr [NAME] argued that the statutory period for the [NAME] of representations was not paused by her enquiry in her email of 2 October 2021. She could have made further representations, and could have done so without receiving an answer to her question. In any event, she did make representations in her email of 23 January 2023, and there was nothing of substance that she wanted to argue in representations outside what she now argued before us.

39. [NAME] submitted that the appellant had a genuine belief that she had been granted a five year license. When she received the letter containing the notice of intent, it was reasonable for her to seek to clarify the situation with the respondent. That, however, only happened as late as February 2023. The Respondent asserts that she was sent letters, emails, and newsletters, but she has explained why none of those were received. He went on to draw a parallel with the notorious [NAME] cases. The Respondent could provide evidence that information was sent, but they could not prove that it was received. She had not been informed by the respondent of what Mr [RESPONDENT] referred to as the “alteration” in 2020 had taken place. The fact that her [NAME] for another license was so long delayed should be laid at the door of the respondent, for not replying to her initial query until 2023.

40. Our conclusions are as follows.

41. The parties provided evidence, and made submissions, on the question of whether the course of events in October 2021 were such as to deprive the Appellant of a proper opportunity to make representations as required by paragraph 4, schedule 13A to the Housing Act 2004. The Appellant did not specify what was considered to be the effect had it been the case that she had not been given a proper opportunity to make representations, but as it is possibly relevant to each of the validity of the final notice, reasonable excuse and quantum. We therefore consider it first, although it was not the primary concern of either party at the hearing.

42. We do not consider that the effect of the exchanges following the service of the notice of intent did, in truth, deny the Appellant the opportunity to make representations. It may be that Ms [APPELLANT] late response to the Appellant’s email of 2 October 2021 did wrongly assert that the Appellant’s email was a representation, rather than an enquiry. But we heard Ms [NAME] view that the clock for the deadline for responses stopped when a representation was received, and that the Respondent would accept further material from a landlord thereafter. Whether Ms [RESPONDENT] is right in law or not (and Mr [NAME] submissions suggested that it was not), she was clearly describing the practice of the Respondent. In the circumstances, it was, we consider, incumbent on the Appellant to correct what she now asserts was a mistake on Ms [NAME] part in treating the email of 2 October 2021 as a representation. If the Appellant had responded to Ms [APPELLANT] email of 29 October 2021 to say that she wished to make representations, or that her email of 2 October had been a query, not a representation, then she would have been told that she could, at that point, have made (further) representations. But she did not. She merely chased her email of 2 October some five months later, as if she had not had the response on 29 October 2021 at all.

43. Subsequently, on 13 December 2022, she received an email from Mr [NAME], who was by that time considering the imposition of the financial penalty, which asked her for her correct contact details. She asked him why he was asking the questions, and he responded telling her that he was dealing with her “representation” – presumably the 2 October 2021 email – in the context of investigating her case. She did not, at this point either, make substantive representations. If she had done so, and been told it was too late, she may have had a case in respect of the inability to make representations, but she did not.

44. As Mr [NAME] submitted, she did make effectively the same representations as she relies on now in her final communication with the Respondent, on 23 January 2023, when she made the point that she had not received emails from the “housing department”, and that there were problems with the post. It appeared from the letter from Mr [RESPONDENT] for the Respondent dated 20 February 2023, which she did receive (she thought as an email to her [NAME], rather than in the post) that he had, indeed, taken account of those representations before finally approving the financial penalty.

45. But even if all that is not the case, there has been no suggestion that she could have made any representations other than those now relied on. We now turn to the question of their validity in the context of reasonable excuse.

46. There were essentially two complementary bases for the assertion that the Appellant has a reasonable excuse. They were that she had a genuine belief that the licence granted in 2018 was for five years; and that the Respondent had not informed her that a new licence was necessary.

47. We reject both.

48. It may be that the appellant’s belief that she had a five-year license was genuine, but it was not a reasonable belief. First, she must have been (at least) mistaken in thinking that the [NAME] said that all licences were for five years. We know that, at the time she applied, the Respondent believed that it was not lawful for it to grant licences which ran beyond the end of the first scheme on 31 March 2020. Mr [NAME] says in his letter of 20 February 2023 that the [NAME] then said licences were available for up to five years. We do not believe that the [NAME] wrongly and contrary to the legal advice procured by the Respondent stated that all licences would be for a period of five years. Having said that, it was nonetheless an unfortunate way to phrase the point, since it is only if issued on the first day of the scheme that any licence would have actually been for a full five years, and this consideration alone would not lead us to conclude that the Appellant’s belief was seriously unreasonable.

49. However, it was seriously unreasonable for the Appellant not to secure confirmation that she had been granted a licence, rather than merely assuming that that was case. And it was similarly unreasonable for her not to secure a copy of the licence.

50. No doubt a possible counter-argument to that would be that she could not do so because of the unreliability of the post and problems with email.

51. The first problem with that is that she did not make that argument. Rather, she asserted that her reliance on her assumption and failure to secure a copy of the licence were reasonable.

52. But even if that argument were made, it cannot be reasonable for a landlord, someone operating a business of letting a property as a home to someone else, to allow herself to become incommunicado to the relevant licencing authority. As to the post, she said that the problems had been occurring since she moved in to her current house in 2005. If this issue prevented her from being communicated with by, among others, the licensing authority, it was incumbent upon her to ensure that she had reliable alternative means of communication. Those may have included e-mail, but if they did, it was, again, incumbent upon her to ensure that she was receiving emails. The use of her nhs email account may not have been satisfactory, as she seemed to argue. But in that case it was up to her to ensure that another, reliable, email account was available, and was notified to the Respondent. It is no good the appellant arguing that she wasn’t very good with computers. A landlord has a responsibility to communicate with, and be communicated to by, the licensing authority, and if necessary must secure whatever assistance is necessary to do so.

53. It simply cannot be reasonable for a landlord to assume she has an appropriate license without taking any steps to confirm that she does, and to secure a copy of the license.

54. If the Appellant had behaved reasonably, she would have secured a copy of her licence, and would have seen printed on the licence that it expired on 31 March 2020.

55. As to the failure the Respondent to successfully communicate the necessity for a new licence to her, we think that the Appellant’s case was advanced on a misconceived basis.

56. A local authority is under statutory obligations to undertake certain specific steps to publicise a selective licencing designation under section 83(2) of the 2004 Act and under regulation 9 of the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006/373. In common with the good practice adopted by most London boroughs, the Respondent has also made significant further efforts to publicise its selective licencing schemes, including a dedicated section of its [NAME] and the newsletters and landlords’ forums about which we received evidence in this case. In a general sense, it is up to a local authority to publicise a selective scheme in its area.

57. A local authority is not under any duty to inform every individual landlord in a selective scheme area of the designation, or of his or her obligation to apply for a license. It is noteworthy that the Respondent’s audit process in early 2021 came close to attempting to do so, despite the lack of any such obligation.

58. It is up to a landlord to equip herself sufficiently to be aware of her legal obligations and to discharge them. In this case, the Appellant expressly stated that she considered that the local authority was under a duty to inform her that she needed a new licence. The idea that adhering to the law was akin to an [COMPANY]’s commercial interest in seeking a renewal of an insurance policy is wrong.

59. It was clear from her answers in cross examination that the Appellant did not have any process at all for keeping abreast of the legal requirements imposed on landlords. She was not a member of any of the landlord organisations which routinely provide such information, and she did not subscribe to websites such as [NAME]. She did not have a (relevant) professional advising her.

60. Apparent in the Appellant’s attitude to her obligations was an underlying failure to take her role as a landlord as seriously as she should. It was revealing that, in cross examination, when Mr [APPELLANT] put to the Appellant that, as a doctor, she was subject to professional obligations imposed by the GMC, and that as a landlord she had legal obligations that she was required to keep abreast of, she again answered by referring to the parallel with an insurance premium, before agreeing that she had no system in place to inform herself of those obligations.

61. Ignorance of a licencing obligation does not constitute a reasonable excuse, absent some particular and compelling factor – see, for instance, the high threshold set in Aytan v Moore [2022] UKUT 27 (LC), [2022] H.L.R. 29, at [40], for when reliance on a managing agent is sufficient to constitute a reasonable excuse. In this case, there is nothing resembling a reasonable excuse for her continued ignorance.

62. It is not, therefore, necessary for us to determine whether the Appellant was telling the truth or lying when she said that she did not receive the letter of 2 February 2021, or other letters, as Mr [APPELLANT] invited us to do.

63. We find that the Appellant has not discharged the burden of proving the reasonable excuse, and accordingly the criminal offence was committed.

Quantum of financial penalty

64. Ms [NAME] evidence was that she reviewed the material provided to her by Ms [NAME] and recommended the financial penalty. That recommendation was subsequently approved by the then assistant director for regulatory services. In doing so, she had regard to the Respondent’s policy and to the relevant statutory guidance. She considered that prosecution was not warranted, but a financial penalty was appropriate. She had regard to the Respondent’s matrix for decision [NAME] as to the amount of a financial penalty, which we reproduce hereunder.

Band number Severity of offence Band width [£]

1

Moderate 0-4999

2 5000-9999

3

Serious 10000-14999

4 15000-19999

5

Severe 20000-24999

6 25000-30000

65. In the section on selective licensing in the policy, she applied the statement that a civil penalty for a landlord controlling five or fewer dwellings with no other aggravating features should be regarded as a moderate band 2 offence, attracting a penalty of at least £5,000. We took it that, in her answer to questions from the Tribunal, the position was that, effectively therefore, £5,000 was the lowest financial penalty that would be made in a selective licencing case. In general, band 1 was reserved for other, more minor issues, such as minor breaches of the Management of Houses in Multiple Occupation (England) Regulations 2006.

66. There was a system to automatically apply a 20% discount when there was early rectification of breach by an immediate [NAME] for a licence. The Applicant had not made an immediate [NAME]. There was a discretion to go below a penalty of £5,000, but only in exceptional circumstances.

67. There were no aggravating circumstances (a list of “generic” aggravating circumstances was provided in the policy), and no exceptional mitigating circumstances (of which there was no list) were apparent. Accordingly, a financial penalty at the starting point of £5,000 was made.

68. Mr [NAME] put to Ms [NAME] in cross examination the passage in the policy which distinguished between when an informal response of advice and education was appropriate, rather than formal action such as a financial penalty. Considering the relevant criteria set out there, she agreed that there was no serious risk to public health, nor a history of non-compliance. Rather, she relied on the category requiring “a blatant or deliberate contravention of the law” to be met with a formal response. The Respondent took selective licencing seriously, and took steps to inform landlords of their responsibilities. There had been no response to the letter of 2 February 2021, and so the Applicant could not be said to be co-operating with the Respondent.

69. In submissions, Mr [RESPONDENT] took us through the local authorities policy and the proper approach set out in [NAME] v Marshall [2020] UKUT 35 (LC), [2020] 1 WLR 3187 (a decision endorsed by the Court of Appeal in [NAME] v Norwich City Council [2021] EWCA Civ 20, [2021] 1 WLR 1691). He noted that the only objection to quantum made in the papers was an assertion that the penalty was excessive, without particularisation.

70. Mr [APPELLANT] argued that the reasons why the appellant had not renewed the license were such as to amount to mitigating circumstances in respect of quantum, and should reduce the total penalty. Although he disavowed giving us an alternative figure, he suggested that applying the percentage discounts was one way of approaching the question.

71. We agree with Mr [NAME] that [NAME] remains the key guide for the Tribunal in considering an appeal against a financial penalty. In particular, we see Leicester City Council v Morjaria [2023] UKUT 129 (LC), [2023] HLR 42 as largely an [NAME] of the [NAME] approach rather than a departure from it. We also agree with Mr [NAME] that the criticism of non-single offence matrixes at [54] and [55] simply do not bite on this case, even though the matrix reproduced above applies to a number of offences. In particular, we do not think that the seriousness starting point adopted by the Respondent in this case can be faulted, and indeed, Mr [RESPONDENT] made no such submission.

72. We adopt the expression of the key principles in the terms of the headnote in the Weekly Law Reports, which we consider an accurate summary of the extensive review of the authorities undertaken by Judge Cooke in that case. They are as follows.

73. First, the Tribunal “had to start from the policy which underlay the decision and apply it as if it were standing in the shoes of the original decision-maker, giving proper consideration to arguments that it should depart from the policy”.

74. Secondly, “in doing so, [the Tribunal] was required to pay proper attention to the decision under challenge and the reasoning behind it, although it could and should depart from the policy in certain circumstances, such as where it had been applied too rigidly”.

75. Thirdly, “that the burden lay with the appellant to persuade the court or tribunal to depart from the policy and, in considering that matter, the court or tribunal had to look at the objectives of the policy and ask itself whether those objectives would be met if the policy were not followed”.

76. And Fourthly, “an appellate court or tribunal was carrying out a rehearing, not a review, and while the original decision of an elected authority carried a lot of weight, the court or tribunal could vary the decision if, having given it that special weight, it disagreed with the local authority's conclusion.”

77. Mr [NAME] most clearly specified challenges were essentially at stage 1. His argument – developed in cross examination rather than stressed in his submissions – was that the Respondent had wrongly applied its own policy so as to conclude that the Appellant’s case was categorised as requiring a formal response, rather than an informal one characterised by the provision of advice and education.

78. We reject this challenge. As Mr [APPELLANT] emphasised, the Appellant had failed to licence the property for 1,107 days. This was in the face of engagement with the local authority from, even on her own account, 2 October 2021, which was not rectified until April 2023. It is true that there are legitimate criticisms to be made of the length of time that the Respondent took to progress enforcement against the Appellant, but that does not detract from the characterisation of the Appellant’s law breaking as “blatant”, and, we would conclude, also “deliberate”, the alternative formulations in the criterion relied on for a formal response in the Respondent’s policy.

79. Mr [APPELLANT] also submitted that the matters the Appellant relied on to establish a reasonable excuse could also, in the alternative, be seen as providing mitigation within the confines of the Respondent’s policy.

80. We reject this submission for the same reason that we rejected it when deployed in pursuance of a reasonable excuse. This is not a case in which some arguments were found to be made out in relation to liability, but they did not quite reach the threshold necessary to secure a reasonable excuse. Our conclusions above are such that we reject tout court any characterisation of events that would justify re-allocating arguments successfully from reasonable excuse to mitigation of the extent of the penalty.

81. Standing in the Respondent’s shoes, we are quite satisfied that the starting point was a reasonable one. The Appellant has not advanced arguments that we should depart from the policy, except insofar as the claim in respect of mitigation might be so interpreted, and we have rejected that argument on its merits. In the result, we can see no reason at all to depart from the policy in order to interfere with what we consider, on a rehearing basis, to be a proportionate and appropriate financial penalty.

82. We dismiss the appeal.

Rights of appeal

83. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written [NAME] for permission must be made to the First-tier Tribunal at the [NAME].

84. The [NAME] for permission to appeal must arrive at the office within 28 days after the Tribunal sends written reasons for the decision to the [NAME].

85. If the [NAME] is not made within the 28 day time limit, the [NAME] must include a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at these reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed despite not being within the time limit.

86. The [NAME] for permission to appeal must identify the decision of the Tribunal to which it relates, give the date, the property and the case number; state the grounds of appeal; and state the result the party [NAME] the [NAME] is seeking.

Name: Judge Professor Richard Percival Date: 22 April 2024