House in multiple occupation – Licensing scheme – Civil penalty – Appellant appealing against decision of First-tier Tribunal confirming notices issued by respondent local authority imposing financial penalties for offences of failing to comply with licence conditions – Whether respondent’s statement of reasons adequate – Whether respondent having “sufficient evidence” of breach of mandatory condition to produce gas safety certificate for inspection – Appeal allowed in part
The appellant was a professional landlord with a substantial portfolio of rental properties which he managed himself, including 68 Fazakerley Road, Liverpool (the property). The respondent local housing authority operated a citywide selective landlord licensing scheme which provided for the licensing of certain rental properties, including the property. That was the subject of a licence, granted to the appellant in July 2017, which imposed the respondent’s standard-form conditions on the appellant as the licence holder.
On 8 November 2019, the respondent issued the appellant with a notice of intent to issue fines for breaches of condition 1.2 (a mandatory condition required by section 90(4) and paragraph 1(2) of Schedule 4 to the Housing Act 2004) and condition 5.6 (a discretionary condition imposed under s. 90(3) of the 2004 Act), which required the appellant to produce a copy of a valid gas safety certificate by 13 June 2019 and was a wholly factual issue.
The First-tier Tribunal (FTT) confirmed the final notice imposing financial penalties upon the appellant for two offences of failing to comply with licence conditions under Part 3 of the 2004 Act and imposing financial penalties upon the appellant. The appellant appealed.
Held: The appeal was allowed in part.
(1) By section 95(2) of the 2004 Act, a licence holder committed an offence if he failed to comply with any condition of the licence; but, by section 95(4) it was a defence if the licence holder had a reasonable excuse for failing to comply with the condition in question. The burden of establishing such a defence, to the civil standard, on a balance of probabilities, rested on the licence holder. As an alternative to prosecution, by section 249A of the 2004 Act the local housing authority might impose a financial penalty. Section 249A(6) incorporated schedule 13A to the 2004 Act, which set out: (a) the procedure for imposing financial penalties by a local housing authority; (b) appeals against financial penalties; (c) the enforcement of financial penalties; and (d) guidance in respect of financial penalties.
(2) By paragraph 3(a) of schedule 13A, the notice of intent had to set out the reasons for proposing to impose the financial penalty. Similarly, by paragraph 8(b) of schedule 13A, the final notice had to set out the reasons for imposing the penalty.
The reasons had to be directly referable to the condition of the licence in relation to which it was said that there had been a failure to comply on the part of the landlord; and those reasons had to identify clearly, and accurately, the particular respects in which it was said that there had been non-compliance on the landlord’s part.
Here, the alleged offence was the breach of licence condition 1.2, and the particulars of offence should have specified the failure to supply a valid gas safety certificate for the year ending 4 July 2018 within the time limit required by licence condition 1.2, namely by 4 July 2018. That was the offence that the FTT found to have been proved beyond reasonable doubt. However, the notice of intent and the final notice had identified the particulars of offence as the failure to produce a copy of a valid certificate by 13 June 2019 (the date identified in the notice of intent and the final notice), when the appellant had been requested to do so within seven days on 5 June. Those particulars did not constitute the offence alleged, and they were therefore defective.
(3) By paragraph 2(1) of schedule 13A, notice of intent had to be given before the end of the period of six months beginning with the first day on which the authority had sufficient evidence of the conduct to which the financial penalty related. Read in context, the words “sufficient evidence” meant “sufficient evidence to impose a financial penalty”, which, in the light of section 249A, had to mean evidence that was sufficient to prove the commission of the offence to the criminal standard of proof beyond reasonable doubt. Paragraph 2 said only that there had to be “sufficient evidence” for it to be sure.
It would have been apparent to the respondent whether or not the appellant had provided it with a gas safety certificate for the property by each anniversary of the date the landlord was first granted a licence for the property and thus, in the case of the licence year ended 4 July 2018, on or shortly after that date: Pinto v Welwyn Hatfield Borough Council [2022] UKUT 47 (LC); [2022] PLSCS 42 followed.
(4) Applying that approach, the respondent had “sufficient evidence” to prove the commission of any offence of a breach of licence condition 1.2, to the criminal standard of proof beyond reasonable doubt, on or shortly after 4 July 2018. It followed that the six months’ period for giving notice of intent had expired on or shortly after 4 January 2019, so that any proceedings for the offence of breaching licence condition 1.2 were effectively time-barred when notice of intent was given on or about 8 November 2019.
Accordingly, the appeal from the FTT’s decision to confirm the final notice in respect of the breach of licence condition 1.2 would be allowed and the financial penalty of £3,375 quashed.
(5) An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it was satisfied that he was plainly wrong. The FTT was best placed to assess the evidence it had heard. It was fully entitled to prefer the evidence of the respondent to that of the appellant. The FTT’s finding that the tenant did not deliberately, or consistently, deny the appellant access to the property could not properly be characterised as a decision that no reasonable tribunal could have reached. The FTT’s conclusions were rationally supportable and could not properly be described as plainly wrong. The FTT was fully entitled to find that the appellant had not made out the defence of reasonable excuse on the balance of probabilities.
Accordingly, the appeal from the FTT’s decision to confirm the final notice in respect of the breach of licence condition 5.6 would be dismissed and the resulting financial penalty of £5,625 would be affirmed.
Nathan Goldstein (instructed by Direct Access) appeared for the appellant; Cecilia Pritchard (instructed by Liverpool City Council) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Maharaj v Liverpool City Council
