An appellate tribunal can set aside a First-tier Tribunal’s conclusion that the evidence failed to meet the required criminal standard if there was an identifiable flaw in the tribunal’s reasoning and the decision ran contrary to the only reasonable conclusion possible on the evidence.
In Leicester City Council v Morjaria [2023] UKUT 129 (LC), the appellant local housing authority (LHA) appealed against a decision of the First-tier Tribunal to reduce a civil penalty made against a landlord who was found guilty to the criminal standard for the offence of being in control of an unlicensed HMO contrary to section 72 of the Housing Act 2004. Based on its own civil penalty policy, the LHA imposed a penalty of £29,817.
The landlord owned a two-storey mid-terrace house in Leicester. She acquired the property in 2014 and immediately started renting it out. The house contained four bedsitting rooms. The fifth room was too small to be lawfully let.
The LHA issued the landlord with a civil penalty notice on the basis that she had operated an HMO without a licence from 1 October 2018 until 11 August 2021. Before the FTT, the landlord argued she was not required to licence the property because fewer than five people were living at the property and the fifth room was not occupied. The LHA had disclosed evidence, including evidence from a former tenant, which it argued proved to the requisite criminal standard that the landlord had committed the offence during the period alleged.
The FTT found that an offence had been committed. However, on considering the evidence of the former tenant in isolation, it found the LHA had failed to prove beyond a reasonable doubt that the fifth room was occupied before 11 August 2021. The FTT reduced the penalty for the offence to £3,900. In so doing, it gave due weight to the policy, but chose to depart from its conclusions.
On appeal, the LHA argued the FTT had failed to give due weight to its policy. The UT disagreed. Further, the LHA argued that, based on the evidence, the FTT was wrong to find that the landlord had committed the offence for only one day.
The UT considered whether an appellate tribunal could set aside a First-tier Tribunal’s conclusion that the evidence was not sufficient to prove a case to the required criminal standard. It found that it could, if satisfied that the decision contained an identifiable flaw and the tribunal had reached a conclusion that was contrary to the only reasonable possible conclusion based on the evidence.
The UT determined that the FTT had erred in viewing the evidence of the former tenant in isolation. It should have considered his evidence in context and properly directed itself with regard to the totality of the evidence. The FTT wrongly made an assessment of the appropriate penalty on the basis of an incomplete appreciation of the duration and seriousness of the landlord’s offence.
Elizabeth Dwomoh is a barrister at Lamb Chambers
