Housing – Civil penalty – Address for service – Appellant local authority granting respondent licence to manage premises subject to standard conditions requiring provision of information on demand – Demand sent to respondent’s former address and not received – Appellant imposing financial penalty – First-tier Tribunal allowing respondent’s appeal – Appellant appealing – Whether respondent in breach of licence by failing to provide information in response to request not received – Appeal allowed
The appellant local planning authority granted the respondent a licence under section 88 of the Housing Act 2004 to manage premises at 29 Gillies Street, Newcastle-Upon-Tyne, subject to standard conditions requiring him to provide certain information “on demand”. The appellant requested the relevant information by letter sent by ordinary post addressed to the respondent at an address he no longer occupied. Therefore, the demand never came to the respondent’s attention.
An issue arose whether that demand was nevertheless effective for the purpose of the licence condition. If it was, the respondent’s failure to comply with the condition would have been an offence contrary to section 95(2)(b) of the 2004 Act, unless he could prove that he had a reasonable excuse for that failure.
The First-tier Tribunal allowed the respondent’s appeal against a financial penalty of £654.66 imposed by the appellant under section 249A of the 2004 Act on account of the section 95 offence, which it was satisfied he had committed. The FTT found that the demand for information made by the appellant had not been sent to the respondent’s last known address. Accordingly, the respondent was not required to comply with the demand.
The appellant appealed. It was primarily interested in the wider consequences for its administrative practices of the FTT’s apparent conclusion that requests for information made in furtherance of conditions attached to licences granted under the 2004 Act could not safely be sent through the ordinary post, rather than by registered post.
Held: The appeal was allowed.
(1) Section 233 of the Local Government Act 1972 made special provisions for the service of documents by local authorities which were less demanding than those applicable to documents served by other parties, including section 196 of the Law of Property Act 1925. The section was in wide terms. It had to be read as applying generally to all notices, orders or other documents given by an authority where that was required or authorised by or under any enactment (subject to the specific exceptions for documents in connection with court proceedings or which were excluded by the terms of a statute or instrument). The wide application of section 233 was in accordance with the natural reading of its language, which did not suggest any limitation to circumstances in which a local authority was discharging public law functions: Birmingham City Council v Bravington [2023] EWCA Civ 308; [2023] PLSCS 53 considered.
(2) Section 196(4) and (5) of the 1925 Act were not restricted to notices or documents served by local authorities but applied generally to notices required or authorised by the 1925 Act or required by any instrument affecting property executed after its commencement. Section 196(4) was of much wider application than section 233. In particular, it was not restricted to local authorities, and it was available in connection with documents required to be served by “any instrument affecting property”, and not simply documents required or authorised “by or under any enactment” as in the case of section 233. Any such document would be treated as having been “sufficiently served” if the procedure was followed. But section 196(5) applied only to documents sent by post in a registered letter; in contrast, section 233(2) did not require the use of registered post and so was less administratively burdensome. It was for that reason that, in the present appeal, the appellant was keen to obtain confirmation that section 233 was available to it in connection with monitoring compliance with licence conditions.
(3) The FTT had been wrong to doubt the applicability of section 233 to requests for the provision of information to satisfy licence conditions. Section 233 applied to any document “required or authorised by or under any enactment”. The whole licensing regime was authorised by the 2004 Act and the inclusion of conditions was provided for by section 90. Those conditions which required the provision, on demand, of information about the safety of electrical appliances and furniture and the condition and position of smoke and carbon monoxide alarms were required by section 90(4) and schedule 4 to the 2004 Act to be included in every licence. At the very least the demands contemplated by those mandatory conditions had to be regarded as communications authorised by an enactment.
(4) Section 233(2) of the 1972 Act permitted service by a local authority of any document required or authorised by or under any enactment by delivering it to the person to be served, or by leaving it or sending it to them by post, at their “proper address”. Section 233(4) provided that the “proper address” of any person was their “last known address”. The FTT decided that requirement was not satisfied by the demand sent to the respondent because in 2017 and 2018 the appellant’s council tax department had been informed of a different address from the one he had given the licensing department in his licence application in 2016.
However. knowledge held by the council tax department was not to be imputed to the housing department when considering what was the respondent’s last known address. The licensing team satisfied the requirement of due diligence by looking no further than the licence application, which gave the applicant’s address at the time he made the application, and at the licence, which required that he notify the licensing team (specifically) of any change of circumstances, including a change of address. The appellant was entitled to assume, in the absence of any such notification received by the licensing team, that the respondent still lived at his former address. The FTT was wrong to find that the respondent had not been served at his last known address and should have found that he was under a duty to supply the information requested. In all the circumstances, the FTT was wrong to find that the respondent was not properly served: Newham London Borough Council v Ahmed [2016] EWHC 679 (Admin), Newham London Borough Council v Miah [2016] EWHC 1043 (Admin); [2016] PTSR 1082; [2016] EGLR 47 and Oldham Metropolitan Borough Council v Tanna [2017] EWCA Civ 50; [2017] EGLR 17 considered.
Sarah Salmon (instructed by Newcastle City Council) appeared for the appellant; the respondent did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Newcastle City Council v Abdallah
