The Upper Tribunal (Lands Chamber) has provided useful guidance as to the standard of proof required before the clock starts ticking for a local authority to issue a notice of intent once a housing-related offence has been committed.
A landlord who is in control or management of a house in multiple occupation that is required to be licensed, but is not so licensed, commits an offence under section 72(1) of the Housing Act 2004. A landlord can be prosecuted for such an offence, but section 249A enables a local authority to impose a financial penalty in the alternative.
Schedule 13A sets out the procedure which the local authority must follow if it is to impose a penalty under section 249A. It must serve on the landlord a notice of its intention to issue a penalty, known as a “notice of intent”. In particular, paragraph 2(2) of schedule 13A provides that a local authority must give notice of intent “before the end of the period of six months beginning with the first day on which the authority has sufficient evidence of the conduct to which the financial penalty relates…”
The question that the UT was asked to determine on appeal in Pinto v Welwyn Hatfield Borough Council [2022] UKUT 47 (LC); [2022] PLSCS 42 was the nature of the standard of proof required by the authority in respect of the evidence to trigger the six-month time limit for service of the notice of intent.
Ricardo Pinto was a landlord of a property in Hatfield that was an HMO. He was required to license the property, but failed to do so. He was therefore guilty of an offence under section 72(1). The local authority served him with a notice of intent to impose a penalty and subsequently fined him £5,000.
Pinto appealed to the First-tier tribunal. He argued that the local authority had “sufficient evidence” to serve him with notice of intent at an earlier date than that which was claimed. Accordingly, by the date on which notice was actually served, the authority was already out of time for doing so. The FTT disagreed, but reduced the penalty imposed to £2,500.
The FTT found that for the purposes of the time limit under paragraph 2(2) of schedule 13A, “sufficient evidence of the conduct to which the financial penalty relates” meant sufficient evidence to justify the issuing of a penalty pursuant to section 249A and that evidence had to be such as to satisfy the authority, “beyond reasonable doubt”, that the person’s conduct amounted to a relevant offence. “The authority was accordingly required to be sure that the offence was or had been committed.”
Pinto appealed to the UT arguing that the FTT had conflated the standard of proof required for the authority to satisfy itself that an offence had been committed with the standard of proof required to issue the notice of intent. The phrase “beyond reasonable doubt” and “sure” were absent from paragraph 2 of schedule 13A.
The UT observed that the FTT’s interpretation accorded with fair process and removed any undesirable guesswork on the part of the local authority as to when time ran. The UT found that “the words ‘sufficient evidence’, read in context, had to mean ‘sufficient evidence to impose a financial penalty’ – which in the light of section 249A must mean evidence that proves the offence beyond reasonable doubt.” If those words only meant “sufficient evidence to serve a notice of intent”, difficulties would arise in knowing what would be sufficient. Such an unspecified lower standard of proof would lead to a local housing authority having to guess the point from which time begun to run.
The UT underscored that paragraph 2 of schedule 13A did not require an authority to be “sure”, but only have “sufficient evidence for it be sure”. Time would, therefore, begin to run even if the local authority’s officers did not direct their attention to that evidence.
Elizabeth Dwomoh is a barrister at Lamb Chambers