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Landlord partially succeeds in appeal over imposition of financial penalty for breach of selective licensing conditions

A Liverpool landlord has won one of two appeals he made over final notices served under Part 3 of the Housing Act 2004.

His Honour Judge Hodge QC ruled in the Upper Tribunal (Lands Chamber) in Maharaj v Liverpool City Council [2022] UKUT 140 (LC) that the First-Tier Tribunal (Property Chamber) had erred in one case concerning landlord Mahendra Maharaj and Liverpool City Council.

Mr Maharaj had two final notices imposing financial penalties served on him for offences of failing to comply with licence conditions.

The FTT refused permission to appeal but this was granted by deputy chamber president Martin Rodger QC, who said: “The first ground of the proposed appeal raises an issue of general importance about the approach which should be taken by local housing authorities and first-tier tribunals to the specification in civil penalty notices of the particulars of the offence in respect of which the penalty is being imposed.”

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He said it was also arguable that the FTT did not give sufficient consideration to Mr Maharaj’s explanation for the breach of the inspection condition or whether he had a reasonable excuse.

Liverpool has since 2015 operated a citywide selective landlord licensing scheme, including the house in question.

Under this, the licence holder must annually provide a valid gas safety certificate and ensure inspections of the property are carried out a minimum of every six months to identify any problems of condition and management and maintain records of these.

Before imposing a financial penalty, the local authority must give notice within six months of the first day on which it has sufficient evidence of the breach.

Liverpool in November 2019 issued two notices of intent for failing to comply with a licence condition under Part 3 of the 2004 Act.

One was for £3,375 for falling to produce a gas certificate in time.The other was for £5,625 for failing to provide records of inspections. Final notices for both were issued in January 2020.

Mr Maharaj appealed to the FTT on the grounds that he was not in breach of either condition.

Judge Hodge said in essence Mr Maharaj’s case was that he had posted three gas safety certificates along with blank, but signed, inspection records and had been unable to inspect the property because the tenant, a Mr Hourston, had not provided access.

But the FTT found Mr Maharaj failed to supply a gas safety certificate for the year ending 4 July 2018 within the time limit required and that this was the basis of the offence for which a civil penalty was payable.

“This finding was therefore different from the failure referred to in the respondent’s final notice as the basis of the offence,” Judge Hodge noted.

On the issue of entry to inspect the premises the FTT “preferred the evidence of the tenant Mr Hourston to that of the applicant, which was found to be contradictory and unsupported by documents he would have been expected to produce”, Judge Hodge said.

Mr Hourston told the tribunal he generally opened the door to visitors and had not had a visit from Mr Maharaj, who the FTT concluded had not made the claimed efforts to visit the property.

Judge Hodge said FTT had been “fully entitled to prefer the evidence of Mr Hourston to that of the appellant.

“The FTT’s finding that the tenant did not deliberately, or consistently, deny the appellant access to the property cannot properly be characterised as a decision that no reasonable tribunal could have reached.”

But on the gas certificate issue Judge Hodge said local authorities “must bear firmly in mind that the imposition of a financial penalty is an alternative to a criminal prosecution; and it must be treated with the same level of seriousness and transparency.”

He said the offence found by the FTT was not the one of which Mr Maharaj had originally been notified, and quashed the £3,375 penalty.

The tribunal though dismissed the appeal from the FTT’s decision over inspection records and affirmed the financial penalty of £5,625.

Mark Smulian

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