Upper Tribunal judge rejects claim council was too late to impose penalty for HMO offence

A landlord has failed in his case that Welwyn Hatfield Borough Council left it too late to penalise him for failing to license a house in multiple occupation (HMO).

In Pinto v Welwyn Hatfield Borough Council (HOUSING - CIVIL PENALTY - time limit for service of a notice of intent by the local housing authority - "sufficient evidence") [2022] UKUT 47 (LC) Upper Tribunal judge Elizabeth Cooke dismissed the points argued by the appellant landlord.

The landlord appealed against a decision of the First-Tier Tribunal (FTT) about a £5,000 penalty imposed by the council for being in control of a house in multiple occupation which was not licensed, contrary to section 72(1) of the Housing Act 2004.

There was no appeal from the FTT’s finding that the property was required to have an HMO licence and that the landlord did not have a reasonable excuse for not licensing it.

Judge Cooke noted that before imposing a penalty under section 249A of the Act a council must give notice of intent before the end six months beginning with the first day on which the authority has sufficient evidence of the breach.

The landlord, Mr Pinto, was served notice of intent was served on 1 December 2020 and the final notice for a £5,000 penalty was issued on 24 February 2021. He appealed to the FTT, which substituted a penalty of £2,500.

He told the FTT the notice of intent was served too late, because the local housing authority had the ‘sufficient evidence’ required before 1 June 2020.

The appellant said the FTT’s interpretation conflated the standard of proof required for the local authority to be satisfied that an offence has been committed, with the standard of proof necessary to issue a notice of intent.

Judge Cooke said: “In my judgment the FTT was right. Section 249A and Schedule 13A together provide that the local housing authority may impose a financial penalty if it is satisfied beyond reasonable doubt that the offence has been committed, and…must within six months of having sufficient evidence serve a notice of intent.”

Read in context ‘sufficient evidence’ meant ‘sufficient evidence to impose a financial penalty’ - “which must mean evidence that proves the offence beyond reasonable doubt”.

She said: “If the words mean only ‘sufficient evidence to serve a notice of intent’ then it is 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 runs.”

The appellant then argued 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.

Judge Cooke said: “I take the view that the FTT correctly made a decision about when there was, objectively, sufficient evidence.”

She said the FTT looked correctly at the evidence itself and decided this was sufficient evidence and “I see no flaw in its reasoning”.

Mark Smulian