How should the obligations placed on managers under regulations 4 and 7 of the Management of Houses in Multiple Occupation (England) Regulations 2006 be interpreted? In Adil Catering Ltd v City of Westminster Council [2022] UKUT 238 (LC); [2022] PLSCS 151, the Upper Tribunal (Lands Chamber) has provided a useful steer.
The power to make the Management Regulations is contained in section 234(1) of the Housing Act 2004. The purpose behind the regulations is to ensure that satisfactory standards of management and management arrangements are observed in respect of HMOs. In particular, regulation 4(1) provides that the manager of an HMO “…must ensure that the means of escape from fire in the HMO are – (a) kept free from obstruction; and (b) maintained in good order and repair”. Regulation 4(2) provides that “the manager must ensure that any fire fighting equipment and fire alarms are maintained in good working order”. Regulation 7 places a duty on managers to maintain the common parts, fixtures, fittings and appliances found in an HMO.
In Adil Catering, the appellant was for the purposes of the Management Regulations the manager of a four-storey mixed-use building on Praed Street, London W2. In December 2020, the respondent council imposed a financial penalty in the sum of £16,000 on the appellant for breaches of regulations 4(1), 4(2) and 7 pursuant to section 249A of the Housing Act 2004. The appellant appealed to the First-tier Tribunal. The breaches were upheld, but the overall financial penalty imposed was reduced to £15,750.
The appellant argued on appeal to the UT that the FTT had erred in its approach to the interpretation of the Management Regulations. He argued that the primary purpose of the regulations was to ensure “satisfactory management arrangements” and “satisfactory standard of management” and not to hold HMO managers to a counsel of perfection. When determining whether a breach of the Management Regulations had occurred, the appellant argued that the focus should be on whether the manager had acted appropriately and addressed problems when they arose. The UT disagreed.
The UT reinforced the point that civil penalty appeals invariably turned on their own facts. Yet when interpreting the Management Regulations, the starting point was section 234(1) of the 2004 Act. Although the statutory power and the regulations focused on standards of management, there was no reason why the concept of “management” should be limited. Further, there was no reason why regulations concerning the same should not require managers to achieve specific outcomes. Regulations 4(1), 4(2) and 7(2) all required the achievement of an outcome or the bringing about of a state of affairs. In the present case the appellant had failed to comply. A failure to comply with the relevant regulation was one of strict liability unless the defence of reasonable excuse was made out.
Based on the evidence, the FTT was correct to reject the appellant’s defence of reasonable excuse. Further, the FTT had not erred in rejecting the appellant’s complaint that the council had misapplied its civil penalty policy by not giving him informal notice of the potential contraventions before taking enforcement action. The council had done so. Nevertheless the UT underscored that in these circumstances the council’s policy was a guide and not a straitjacket. The appeal was dismissed.
Elizabeth Dwomoh is a barrister at Lamb Chambers
