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Landlords win appeals over "unfair" FTT proceedings where - in absence of hearing - criminal offences found to have been committed

Three private landlords have won appeals at the Upper Tribunal (Lands Chamber) over whether the criminal standard of proof was met in rent disputes at the First Tier Tribunal (FTT).

One case involved landlord Saleem Raza and Bradford Metropolitan District Council and others disputes between landlords and their tenants.

In Raza v Bradford Metropolitan District Council (HOUSING - HOUSE IN MULTIPLE OCCUPATION - CIVIL PENALTY ORDER - RENT REPAYMENT ORDER) [2021] UKUT 39 (LC) (17 February 2021) Judge Elizabeth Cooke said the FTT had ruled on two cases of rent repayment orders under section 40 of the Housing and Planning Act 2016 and one on a financial penalty imposed by under section 249A of the Housing Act 2004.

“What the three appeals have in common is that in order to make each decision the FTT had to be satisfied to the criminal standard of proof that an offence had been committed; in each case permission has been granted on the ground that the FTT’s procedure was unfair because it made that finding without a hearing where matters of fact were in dispute,” she said.

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This was not due to lockdown restrictions as the FTT had conducted video hearings since March 2020.

Judge Cooke noted all three arose from the legal regulation of houses in multiple occupation (HMO) under the Housing Act 2004 and the Housing and Planning Act 2016.

Mr Raza owns an HMO in Bradford at which council inspectors found serious fire and other hazards.

Bradford imposed £25,000 penalty for these breaches. He appealed to the FTT, which was satisfied beyond reasonable doubt that Mr Raza had committed the section 234 offence and confirmed the penalty at £25,000.

Mr Raza in his grounds of appeal challenged the council’s evidence and said there should have been an inspection of the property by the FTT.

Bradford told the FTT it had requested a paper determination because of concerns for the safety of a witness said to have been threatened by one of Mr Raza’s tenants.

Judge Cooke said: “The difficulty with the procedure adopted by the FTT in these three cases was that these landlords were at risk of being found to have committed a criminal offence, there were factual issues in dispute, and the FTT made findings of fact on the basis of evidence that had not been tested in cross-examination.

“That made the procedure unreliable. It was also unfair because it resulted in a finding that a criminal offence had been committed without giving the landlord the opportunity to cross-examine the witnesses who gave evidence against him or to respond, under cross-examination, to the case against him.”

She said she found it hard to imagine a case where the FTT could be so sure of contested facts on written evidence alone that it could find them proved to the criminal standard, beyond reasonable doubt.

And even if the FTT could be sure, it would nevertheless be unfair where the party concerned was at risk of being found to have committed a criminal offence.

In the Bradford case the FTT had been “well able to take appropriate measures for the protection of the respondent’s witness” had it wished to.

All three cases were remitted to the FTT.

Mark Smulian

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