Interpretation of private sector housing enforcement policy

The First Tier Tribunal (FTT) may only review its decision to resolve a matter arising from the grounds of appeal, and in cases involving financial penalties it may not invent a discount outwith the council’s policy.

Waltham Forest LBC (“the Council”) designated its area as subject to additional licensing. Marble Properties (London) Ltd (“the Agent”) was the person managing and/or having control of the subject property, which required to be, but was not, licensed pursuant to the designation. The Council imposed upon the Agent a financial penalty of £12,000, and informed it that if it paid within 28 days the penalty would be further reduced to £9,000. The Agent did not make payment, and instituted an appeal.

The FTT concluded that the appropriate penalty upon application of the Council’s policy (“the Policy”) was £8,000 and that, notwithstanding the Policy not making provision for the same, a discount of £2,000 should be credited. The Council sought permission to appeal. In response, the FTT reviewed its decision in a manner not foreshadowed by the application for permission to appeal; in particular, it concluded that if it was wrong as to its application of the Policy, that policy was “too rigid” and should be departed from.

In Waltham Forest LBC v Marble Properties (London) Ltd; R (Waltham Forest LBC) v First-tier Tribunal (Property Chamber) [2025] UKUT 2 (LC) the Upper Tribunal allowed the Council’s appeal. The FTT had misapplied the Policy: §47. It had not been entitled to invent a discount outwith the Policy: §54. It had not been entitled to review its decision for reasons extraneous to the grounds of appeal: §69. It had in any event wrongly concluded that the Policy was “too rigid”: §90. The FTT is not the appropriate forum in which to challenge policy: §§53, 90. The penalty imposed by the Council was reinstated.

Riccardo Calzavara is a barrister at Cornerstone Barristers. He was instructed by Simon Kiely of Sharpe Pritchard LLP for Waltham Forest LBC.