First-tier Tribunal (Property Chamber)
Mr Rahman brought an appeal against the issuance of the civil penalty to the First-tier Tribunal (Property Chamber) (“the FTT”), asserting that the level of the penalty was excessive. During the course of the appeal, it was said that Mr Rahman did in fact own more than five dwellings across the country. Waltham Forest’s Enforcement Policy specifies that where a landlord owns more than 5 properties they are to be subject to a heavier penalty due to being a more experienced landlord. As a result of this new information, Waltham Forest asserted that the FTT should increase the penalty in line with its Policy, so that Mr Rahman should receive a penalty with a starting point of £15,000. The FTT refused to do so, instead upholding the penalty in the amount that the council had imposed.
Upper Tribunal (Lands Chamber)
Waltham Forest appealed this decision to the Upper Tribunal (Lands Chamber) (“the UT”), seeking a decision that the FTT was obliged to apply Waltham Forest’s Policy and increase the penalty accordingly.
The UT hearing took a surprising turn, when the person who appeared before the UT as Mr Rahman was not the same person who had appeared before the FTT. Mr Rahman told UT Judge Cooke that his father had in fact appeared before the FTT, and assured UTJ Cooke that he was indeed the correct Mr Rahman. As a result of this confusion, the UTJ Cooke did, in part, remit the case back to the FTT for redetermination, and directed Mr Rahman, his father, and his representative to all provide evidence of their identities at the next FTT hearing.
Notwithstanding that issue, UTJ Cooke still decided the legal issues in Waltham Forest’s appeal, and in Waltham Forest LBC v Rahman [2023] UKUT 139 (LC) held that the FTT did have the power to increase a penalty just as it had the power to reduce it. In the UT decision, at paragraph 14, UTJ Cooke emphasised that:
“if the local housing authority imposed a penalty on a landlord on the basis that he or she owned and was renting out, say, 15 properties, and the FTT found as a fact in the appeal that he or she owned only one, then it is implausible to suggest that the FTT should or could do anything other than to start from the local authority’s policy and determine the penalty on the basis that only one property was owned. Such a penalty would no doubt be substantially lower. Conversely, in a hypothetical case where the local authority proceeded on the basis that one property was owned but the FTT found as a fact that 15 properties were owned then the FTT would determine the penalty on the basis of that finding of fact.”
This decision provides useful guidance that when considering the level of civil penalties on appeal, the FTT must start from the point of applying a local housing authority’s Enforcement Policy, and that it is for an appellant landlord to persuade the FTT to depart from that Policy. If the FTT is considering a departure from a local housing authority’s Policy, then it must ask itself whether the objectives of the Policy would still be achieved if the FTT departed from the Policy, bearing in mind that one of the reasons for having a Policy is to ensure the consistency of decisions between offenders. Those principles are relevant in all cases, whether the end result is a higher or a lower penalty.
Simon Kiely is a partner in Sharpe Pritchard's litigation team who advises both public and private sector clients on a wide range of civil and regulatory issues in respect of the private rented housing sector under the Housing Act 2004.
Francesca Gallagher is a Trainee Solicitor at Sharpe Pritchard.
If you would like further advice and assistance in relation to any of the issues raised in this article, please contact Simon by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it..
For further insight and resources on local government legal issues from Sharpe Pritchard, please visit the SharpeEdge page by clicking on the banner below.
This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it.
