London Borough of Waltham Forest v Marshall and another [2020] UKUT 35 (LC) is a decision concerning the weight the First-tier Tribunal (FTT) must give to an authority’s policy at a re-hearing of its decision to impose a fine under the Housing Act 2004 (the Act). The decision will be welcomed by authorities looking for uniformity in the approach the FTT takes at such re-hearings.
Section 80 of the Act enables a local housing authority to designate all or part of its district as subject to selective licensing if the area suffers from low housing demand or antisocial behaviour. It is a criminal offence under section 95 of the Act for a landlord or managing agent to fail to licence a rented property that is required to be licenced. If a local housing authority believes an offence has been committed, it has power under section 249A of the Act to impose a civil penalty as an alternative to prosecution.
Schedule 13A to the Act requires a local housing authority to have regard to any guidance given by the secretary of state concerning civil penalties for offences committed under the Act. Guidance issued by the secretary of state requires local housing authorities to adopt their own civil penalty policies for assessing the level of fines to be imposed for offences committed under section 95 of the Act.
In accordance with the secretary of state’s guidance, the London Borough of Waltham Forest adopted a civil penalty policy. Its policy included a penalties matrix, which banded offences into six categories of severity. The lowest band imposed a maximum fine of £4,999 for minor breaches in circumstances where a licence had been obtained. The policy emphasised that a failure to licence a property was a serious offence and would not fall within the lowest band in the matrix.
The appellants, Allan Marshall and Huseyin Ustek, were both landlords who failed to licence their rented properties. The council imposed fines on both of them in line with its policy. Marshall was fined £5,000 and Ustek was fined £12,000. Both appealed to the FTT.
At the respective re-hearings, the FTT upheld the penalties, but reduced Marshall’s fine to £1,500 and Ustek’s fine to £4,000. The council appealed both decisions. It argued that the FTT had erred in law by giving insufficient weight to its policy. Further, the FTT could only reduce the fines if the landlords provided exceptional reasons justifying such a course of action, which they had not.
The Upper Tribunal (Lands Chamber) (UT) found that the FTT merely paid “lip-service” to the council’s policy. It failed to have the council’s policy as its starting point and failed to afford respect to the council’s decisions on the level of fines imposed in the absence of exceptional reasons.
After a detailed review of the authorities, the UT provided the following principles on the approach to be taken at re-hearings: (a) in certain circumstances the tribunal could depart from the policy underscoring an administrative decision; (b) the tribunal should have as its starting point the policy, but give proper consideration to the appellant’s arguments as to why it should be departed from; and (c) if the tribunal was to depart from the policy, it must look at the objectives of the policy and ask itself whether those objectives would be met if the policy was not followed.
Elizabeth Dwomoh is a barrister at Lamb Chambers
