Elizabeth Dwomoh discovers the specificity required for civil penalty notice particulars and when a local housing authority is deemed to have “sufficient evidence” of a breach of a licensing condition.
Key points
- The reasons for imposing a financial penalty should be treated as providing the particulars of the offence and not merely the giving of a factual background
- “Sufficient evidence” for the purposes of paragraph 2(1) of schedule 13A to the Housing Act 2004 means evidence sufficient to prove the commission of an offence to the criminal standard of proof
In Maharaj v Liverpool City Council [2022] UKUT 140 (LC); [2022] PLSCS 91, the Upper Tribunal (Lands Chamber) was asked to determine two key issues. First, the degree of specificity required to be given in the particulars of an offence contained within a civil penalty notice given under the Housing Act 2004. Second, when a local housing authority can be said to have “sufficient evidence” of a breach of the mandatory condition contained in paragraph 1(2) of schedule 4. That condition requires a landlord to disclose to their LHA, annually for inspection, a gas safety certificate obtained in respect of their property within the previous 12 months.
The statutory provisions
Section 90(4) provides that a licence granted for a house in multiple occupation subject to selective licensing must contain the mandatory conditions set out in schedule 4, including the GSC inspection condition. A licence holder who fails to comply with any condition of a licence commits an offence: section 95(2). The offence is punishable by means of a criminal prosecution or imposition of a civil penalty if the LHA is satisfied beyond reasonable doubt that an offence has been committed: section 249A.
Schedule 13A, as incorporated by section 249A, provides the procedure the LHA must follow before it can impose a financial penalty. In particular, paragraph 2(1) provides that the LHA must first serve a “notice of intent” on the licence holder. The notice of intent must include the reasons for proposing to impose a financial penalty: paragraph 3(a). If the LHA is minded to impose a financial penalty, it must give the licence holder a “final notice”, which must include the reason for imposing the penalty: paragraphs 6 and 8(b).
The breach
Mahendra Maharaj was the professional landlord of an HMO situated in Fazakerley Road, Liverpool. Liverpool City Council was the relevant LHA for the purposes of licensing. In April 2015, LCC had designated the whole of its district as being subject to selective licensing. Maharaj obtained a licence for his property on 4 July 2017, which included the GSC inspection condition.
On 8 November 2019, LCC served Maharaj with a notice of intent. The reason given for the imposition of a financial penalty was Maharaj’s purported failure to produce a copy of a valid gas safety certificate by 13 June 2019 when requested to do so by LCC. A final notice was issued on 29 January 2020.
Maharaj appealed to the First-tier Tribunal. He argued that he had posted the relevant gas safety certificates to LCC on 6 June 2019.
By way of its substantive decision of 24 June 2021, the FTT was “satisfied beyond a reasonable doubt that [Maharaj] committed the offences for which the penalty notices were issued”. Maharaj applied to the FTT for permission to appeal. In its refusal decision dated 4 August 2021 the FTT clarified that it was satisfied beyond a reasonable doubt that Maharaj had committed the offence of failing “to supply a gas safety certificate for the year ending 4 July 2018 within the time limit required by [the GSC inspection condition]”.
Accurate particulars
Maharaj appealed. He argued that the FTT had found him guilty of an offence that differed to that stated in the notice of intent and the final notice. Further, the particulars set out in both notices did not amount to a breach of the GSC inspection condition. The UT agreed.
The UT determined that the reasons for imposing a financial penalty set out in the notices had to be sufficiently clear and accurately expressed to enable a landlord to decide whether to make relevant written representation to the LHA or to appeal the imposition of the penalty to the FTT. Those reasons had to be directly referable to the condition of the licence said to have been breached. The UT held that the reasons for imposing a financial penalty should be treated as providing the particulars of the offence and not a mere factual background to the offence.
Sufficient evidence
The FTT was also found to have fallen into error in failing to identify that the offence it had found Maharaj guilty of committing was statute-barred.
The time limit in paragraph 2(1) of schedule 13A provided a strict time limit for when the notice of intent must be given.
In Pinto v Welwyn Hatfield Borough Council [2022] UKUT 047 (LC); [2022] PLSCS 42, the UT determined that the meaning of “sufficient evidence” in paragraph 2(1) meant “evidence that was sufficient to prove the commission of the offence to the criminal standard of proof beyond reasonable doubt”. In the present case, the FTT had found Maharaj guilty of failing to provide a gas safety certificate by 4 July 2018. The UT determined that the LCC would have had “sufficient evidence” to serve the notice of intent by 4 January 2019, when the six-month time limit expired.
The GSC inspection condition was mandatory. The LCC should have had proper mechanisms in place to police the same. This was not an onerous task and could have been done by LCC diarising when gas safety certificates were due to be provided by licence holders.
Elizabeth Dwomoh is a barrister at Lamb Chambers
