Council wins Upper Tribunal appeal over penalty notices and adequacy of reasons

Two notices of intent to impose financial penalties issued by Welwyn Hatfield Borough Council were not invalid and the First-Tier Tribunal (Property Chamber) should reconsider its decision that they were, the Upper Tribunal (Lands Chamber) has said.

Welwyn Hatfield issued the notices to the respondent landlord under section 249A of the Housing Act 2004. They proposed penalties totalling £21,000 for faults found in a house in multiple occupations owned by her.

The respondent successfully appealed to the FTT on the grounds that the information in the notices was insufficient for her to make meaningful representations and they were therefore invalid. The council appealed against that ruling.

In Welwyn Hatfield Borough Council v Wang [2024] UKUT 24 (LC) Martin Rodger KC, Deputy Chamber President, said the case raised two issues.

The first was whether a notice of intent to impose a financial penalty under section 249A must "set out … the reasons for proposing to impose the financial penalty” and the second whether providing an inadequate statement of reasons voids the notice or whether this must be determined having regard to the circumstances as a whole, including whether an authority's reasons are clear enough from other material and whether the appellant had a proper opportunity to respond to them.

The landlord owns a two-storey detached house in which tenants rent rooms but share the kitchen and bathroom; It was licensed in October 2018, for five years.

A council inspector called and found various faults with fire detection, damp and mould in the bathroom and obstructed internal passages.

Welwyn Hatfield sent the respondent landlord a schedule of required works which contained details of matters of concern to the council which Mr Rodger said were later omitted from the notices of intent.

The landlord did not reply to an invitation to attend an interview under caution and the council decided to initiate financial penalty proceedings by serving notices of intent. Mr Rodger said the council provided fuller details only when the final notices were issued.

The respondent appealed to the FTT on the basis of the notices being invalid for lack of information, lack of notice of the original inspection, and on the impact of Covid 19 on her and her tenants.

She also argued the penalty was unfair as it exceeded the annual rent of the whole property.

Mr Rodger said the FTT had “proceeded to allow the appeal without giving proper time for research and mature consideration.

“The procedure adopted by the FTT was unfair. It would have been made fair if the FTT had allowed the parties an opportunity, after the hearing, to make any further submissions on the validity of the notices of intent in writing before the FTT reached its decision.

“That would have delayed the FTT in completing its determination, but it would have been fair to the parties and might have avoided the need for this appeal.”

Welwyn Hatfield appealed to the Upper Chamber not on procedural unfairness but on the basis that the FTT had applied the wrong approach when it held that the notices of intent were invalid and could not support the financial penalties.

Mr Rodger said the FTT had considered that the notices of intent might have been valid if the schedule had been referred to in them.

But he said: “I agree that that would have been a compliant approach. But I do not agree that the notices were rendered defective because they did not repeat or refer to the detailed information supplied on 29 October.

“While it is true that almost four months elapsed between the schedule of condition and the notices of intent, it can hardly be suggested that the respondent would have forgotten about the schedule. She took prompt steps to carry out the scheduled work and completed it by the end of the year.”

He said the respondet was informed that the offences were said to have been committed on 27 October 2021 and “any reasonable person with the knowledge available to the respondent would, in my judgment, have been in no doubt that the fire safety deficiencies observed by the council's officer on 27 October and referred to in the regulation 4 notice were the same deficiencies as had been listed in the first part of the schedule of works of 29 October.

“Similarly any reasonable person would have understood that the issues concerning poor management and disrepair referred to in the regulation 7 notice were those identified in the second part of the schedule of works.”

He said there was no evidence that the landlord did not understand what the notices of intent were referring to and “I am left in no doubt that she would have been in a position to identify the defects and, had she wished to do so, to respond effectively to them on the basis of the information in the notices of intent”.

This meant the notices of intent were not invalid and the case should return to a differently constituted panel of the FTT for determination, Mr Rodger ruled.

Mark Smulian