Landlord and tenant – House in multiple occupation – Penalty – Appellant landlord failing to obtain licence for house in multiple occupation – Respondent local authority serving notice of intent to impose penalty and subsequently issuing fine – First-tier Tribunal substituting reduced penalty – Appellant appealing – Whether respondent serving notice of intent too late to penalise appellant – Appeal dismissed
The appellant owned a property at 10 Fern Dells, Hatfield, Hertfordshire which was let to four tenants by an agreement dated 1 December 2019. The respondent local authority imposed a financial penalty upon him for the offence of managing or being in control of a house in multiple occupation (HMO) which was required to be licensed, and was not, contrary to section 72(1) of the Housing Act 2004.
Under section 249A of the 2004 Act, a local authority could impose a financial penalty, up to a maximum of £30,000 “if satisfied, beyond reasonable doubt, that the person’s conduct amounted to a relevant housing offence in respect of premises in England”, which included the section 72(1) offence.
By paragraph 2(2) of schedule 13A to the 2004 Act, a local authority had to give the notice of intent within six months of the date when it “has sufficient evidence of the conduct to which the financial penalty relates”.
The respondent served a notice of intent on 1 December 2020 which stated that the respondent had had sufficient evidence on 29 June 2020. The final notice was issued on 24 February 2021 imposing a financial penalty of £5,000.
The appellant appealed to the First-tier Tribunal (FTT) pursuant to paragraph 10 of schedule 13A to the 2004 Act arguing that the respondent had left it too late to impose the penalty because the respondent had had the required “sufficient evidence” before 1 June 2020. The FTT disagreed but which substituted a penalty of £2,500.
The appellant appealed. arguing that the FTT’s interpretation conflated the criminal standard of proof with the lower standard of proof necessary to issue a notice of intent which was simply a statement of intention.
The appeal was conducted under the tribunal’s written representations procedure.
Held: The appeal was dismissed.
(1) Section 249A and schedule 13A together provided that the local housing authority might impose a financial penalty if it was satisfied beyond reasonable doubt that the offence had been committed, and that in order to do so, within six months of having sufficient evidence, it had to serve a notice of intent. Paragraph 2(2) did not say the local housing authority had to be sure, only that there had to be sufficient evidence for it to be sure. That meant that if there was an abundance of evidence, the six-month period started to run even if the local authority’s officers did not direct their attention to that evidence.
However, the words sufficient evidence, read in context, had to mean sufficient evidence to impose a financial penalty which, in the light of section 249A, meant evidence that proved the offence beyond reasonable doubt. If the words meant only sufficient evidence to serve a notice of intent then it was not possible to know what would be sufficient; and if such an unspecified lower standard of proof were intended then a local housing authority would have to guess the point from which time ran.
That interpretation was consistent with a fair process. Once the local housing authority had sufficient evidence to prove the offence beyond reasonable doubt, it should get on with the process, and waiting for more than six months after that point would be unfair to the offender. On the other hand, it would be unfair to the local authority to put it under time pressure to serve a notice of intent while the evidence was insufficient to ensure that the offence had been committed.
The appellant had argued that the statute enabled the landlord to make written representations; if the offence was already proved beyond reasonable doubt, the question was what would be the point of those representations? However, the point of giving the landlord an opportunity to make written representations was to enable the landlord’s point of view to be considered, first because he had a right to be heard and importantly because his evidence might put things in a different light and change the authority’s mind.
(2) The argument that the local authority had sufficient evidence some weeks before 1 June 2020 so that the notice of intent, served on 1 December 2020, was out of time was a challenge to a finding of fact. The FTT saw and heard the witnesses and the Upper Tribunal would interfere with its findings of fact only if irrationality or an error of law could be shown.
The FTT observed that section 249A required the local housing authority to be satisfied to the criminal standard before it could impose a financial penalty. It was therefore correct and proper to invite the appellant for an interview. Because that interview did not take place, it was appropriate for the local housing authority to wait for corroboration before being satisfied that an offence had been committed. Time had not started to run against the respondent before it had that evidence and the notice of intent was served in time.
The FTT correctly made a decision about when there was, objectively, sufficient evidence. The recollection of an officer of the local authority was unlikely to be able to pin down the precise date when she, or a colleague, or a team, became sure that an offence had been committed. And the statute did not require subjective evidence of a state of mind. The FTT looked, correctly, at the evidence itself and decided when there was sufficient evidence. There was no flaw in its reasoning that, in the absence of an interview with the appellant himself, matters went beyond reasonable doubt when corroborative evidence was received.
Michael Field (instructed by Freemans Solicitors) made written submissions on behalf of the appellant.
Eileen O’Grady, barrister
Click here to read a transcript of Pinto v Welwyn Hatfield Borough Council
