Mr Jaswant Singh BhatiaApplicantSandwell Metropolitan District CouncilRespondent
Before
Deputy District Judge Stephen HaythorneMr Robert Chumley-Roberts MCIEH, JPMr Hussain for the ApplicantMr Bahadur, solicitor Letitia Powell – Enforcement Officer for the RespondentDate 5 June 2026Hearing 2026-05-18
DECISION
[1]52 The Tribunal considered the application in three parts –(i) Whether the Tribunal was satisfied beyond reasonable doubt that the Applicant’s conduct amount to a ‘relevant housing offence’ for the purposes of section 249A of the 2004 Act. A ‘relevant housing offence’ includes offences under sections 30, 72 and 234 of the 2004 Act.(ii) Whether the Respondent complied with the requirements and procedures regarding the imposition of the financial penalty contained within section 249A and Schedule 13A of the 2004 Act.(iii) Whether the Financial Penalty was set at an appropriate level, having regard to any relevant factors, including: (a) the offender’s means; (b) the severity of the offence; (c) the culpability and track record of the offender; (d) the harm (if any) caused to a tenant of the premises; (e) the need to punish the offender, to deter repetition of the offence or to deter others from committing similar offences; and/or (f) the need to remove any financial benefit the offender may have obtained as a result of committing the offence. Relevant Housing Offence under section 249A of the 2004 Act The requirements of the offence 53 The evidence provided by the Respondent includes direct evidence from Mrs Powell that at their visit on 19 July 2023 there was no one present in terms of potential occupiers. 54 Mrs Powell visited the Property on 23 September 2023 and there were 3 people present who all represented that they lived at the Property. The Tenant told Mrs Powell that there were 5 other people living there. There were signs that the rooms had things such as food, water and toilet rolls. 55 In order for the Property to be a HMO, the Tribunal must be satisfied, beyond reasonable doubt, that it meets the definition at s.254 of the 2004 Act. The Property as described consists of 6 bedrooms, 2 WC’s, a kitchen and a living area. The bedrooms do not have an individual toilet or cooking facilities and the bedrooms are not self-contained units. 56 There is direct evidence from Mrs Powell of seeing 3 occupants at the Property on 27 September 2023, none of whom appeared to be related or living together as a family. All 3 people represented that they lived at the Property. The Tribunal was satisfied, on the evidence before the Tribunal, that the 3 people who were present on 27 September 2023, shared kitchen and bathroom facilities, lived there as their only or main residence and that the 3 people did not consist of a single household. 57 The Tribunal was satisfied that as at 27 September 2023 the Property was operating as an HMO and continued to operate as an HMO until the occupants were evicted on 30 October 2024. 58 The Tribunal noted that not all HMO’s require a licence. Mandatory licensing for HMO’s is set out in Part 2 of the 2004 Act. In terms of the number of people who must live in a HMO as their only or main residence, that number is 5 people or more, forming 2 or more separate households, as set out in the Order. 59 Whilst there was evidence that the bedrooms of the Property had occupants, the Tribunal did not consider that there was sufficient evidence that all of those rooms were occupied by people who use the Property as their only or main residence. 60 The Applicant stated that the Tenant had informed him that people had come to stay at the Property for a short while, such as the Tenant’s mother. There is a difference between people who may occupy the Property from time to time and those who use the Property as their only or main residence. Given the high standard of proof required in a case such as this, the Tribunal could not be satisfied, beyond reasonable doubt, that everyone who used the Property was using the Property as their only or main residence and could not therefore be satisfied that the Property was a HMO which required licensing. 61 The Tribunal did note however, that the Regulations apply to any HMO and not just an HMO’s which is required to be licensed. 62 As the Property was a HMO during this period, the Applicant was required to comply with the Regulations. 63 The Applicant’s evidence is that he did not intend the Property to be a HMO and did not wish to take steps, such as applying for a HMO licence, as he did not want the Property be a HMO. The Applicant concentrated on evicting the occupants as a means of ending the HMO status, as opposed to complying with the requirements of an HMO. 64 The Respondent has provided evidence of a lack of any management system in place at the Property which complied with the Regulations. The Applicant has not provided any evidence which rebuts this, such as photographs of signs etc. The Tribunal is satisfied, beyond reasonable doubt, that the Applicant failed to provide information to the occupants, failed to take required safety measures, failed to maintain common parts, fixtures, fittings and appliances and failed to provide waste disposal facilities and was therefore in breach of s.234 of the 2004 Act. 65 The Tribunal is satisfied that an Improvement Notice was served on 25 January 2024 which required compliance by 8 April 2024. The Tribunal noted the certificate of delivery which confirms service and the Applicant did not dispute service. 66 The Tribunal notes that the Respondent inspected the Property on 10 April 2024 and has provided evidence that the remedial action required was not fully completed. The Applicant has not provided any substantive evidence that the works were carried out by 8 April 2024. Indeed, the Applicant states that some works are still outstanding and these have not been done because the occupants were evicted. 67 The Tribunal is satisfied, beyond reasonable doubt, that the Improvement Notice was not complied with and that the Applicant committed an offence under section 30 of the 2004 Act Reasonable excuse defence 68 Although the Respondent did not expressly raise a defence of reasonable excuse under sections 30 and 234 of the 2004 Act, the substance of the Respondent’s representations require the Tribunal to consider whether the Respondent might have such a defence: see IR Management Services Limited v Salford City Council [2020] UKUT 81 (LC) at paragraph 31. 69 Although the Tribunal must be satisfied beyond reasonable doubt as to the elements of the offence listed in sections 30 and 234 of the 2004 Act, the standard of proof in relation to the defences in those sections is the balance of probabilities. 70 In relation to the HMO, the Applicant’s case is that they let the Property to the Tenant and that the only other people who would be living at the Property would be the Tenant’s family who would form a single household. 71 The Applicant’s case is therefore that they that did not know and had a reasonable excuse for not knowing that the Property was being used as an HMO. 72 There is insufficient evidence to show that the Applicant originally let the Property as a HMO. There is only one tenancy with the Tenant and that tenancy refers to the whole of the Property, not just a single room. There is also insufficient evidence that the Property was operating as an HMO before September 2023. 73 After the inspection of the Property on 27 September 2023, it should have been obvious to the Applicant that the Property was operating as an HMO and that the Regulations had to be complied with. The Respondent had written to the Applicant on 8 August 2023 setting out what was required. 74 The Tribunal’s decision is that the Applicant has failed to show that they had a reasonable excuse for failures to comply with the Regulations. 75 In terms of the Improvement Notice, the Applicant’s case appears to be that he had a reasonable excuse for not complying with the notice in that he was unable to access the Property because of the occupants living there without permission. 76 It is noted that the occupants granted access to the Respondent without any issues. The Applicant says that this is because they are authority figures, but provides no evidence in support. Further, the Applicant has failed to provide any evidence that they attempted to gain access, but were frustrated by the occupants. The Applicant has failed to prove that they had a reasonable excuse for failing to comply with the Improvement Notice. 77 The Tribunal is not satisfied, on the balance of probabilities that the Respondent had a reasonable excuse for breaches of sections 30 and 234 of the 2004 Act. 78 However, in the view of the Tribunal, the matters referred to by the Applicant above, may be appropriate to assessing the level of any financial penalty. Whether the Respondent complied with the relevant procedures 79 The notice of intent was served on 29 August 2024 and the Respondent provides a certificate of delivery. 80 The notice of intent set out why the financial penalty was being imposed, the amount of penalty and advised of the right to make representations. 81 The Applicant made representations and a final notice was served on 13 February 2025 and the Respondent once again provides a certificate of delivery. 82 The final notice sets out the amount of penalty, the reasons for imposing the penalty, how to pay the penalty, the date for payment, which was within 28 days and set out the right to appeal. 83 The Tribunal is satisfied that the Respondent complied with the procedures at Schedule 13A of the 2004 Act. The amount of Financial Penalty The Respondent’s decision 84 The Respondent has provided its charging table for determining financial penalties (the Charging Table), which is attached to the Notice of Intent. 85 The Respondent has provided a case summary which sets out its reasoning for imposing the financial penalty. 86 The case summary has guidance notes attached to it which refers to the Regulators Code produced under s.23 Legislative and Regulatory Reform Act 2006 and notes that departing from the Code is a serious step which must be properly reasoned and based on material evidence. 87 The case summary also has guidance notes on the evidential and public interest tests. 88 The Respondent notes that the Applicant states that they had not intended the Property to be used as an HMO, but that inspections carried out by the Respondent showed that the Property was being used as an HMO. 89 The Respondent considers that there was high culpability on the Applicant because the Respondent did inform the Applicant of the breaches, but the Applicant did little or nothing to remedy the breaches. 90 The Respondent considered that the correct process had been followed, with fair escalation and assistance from the Respondent throughout the matter. 91 The Respondent considers that the evidential test is met from visits, representations from the Applicant and timescales in the case notes. 92 The Respondent considers that the public interest test is also met as safe housing is a fundamental right and the Respondent has a duty to uphold the law. 93 The recommendation is to impose a financial penalty for each of the breaches, along with a single additional premium. This is on the basis that it is the Applicant’s responsibility to mange the Property and ensure that it is safe. The Tribunal’s decision 94 The Tribunal notes that by virtue of paragraph 10 of Schedule 13A of the 2004 Act, the appeal is by way of re-hearing of the Respondent’s decision, but the Tribunal may have regard to matters which the Respondent was unaware. The Tribunal may confirm, vary or cancel the final notice. 95 The Tribunal noted that the Respondent, in its decision, had failed to refer back to the Regulators Code and the guidance notes on the evidential and public interests test to fully explain how it had come to its conclusions. 96 As set out above (paragraphs 57- 67), the Tribunal is satisfied that the offences under sections 30 and 234 were committed by the Applicant. In terms of the evidential test, given the evidence produced by the Respondent regarding visits, correspondence, lack of rebuttal evidence from the Applicant and a lack of a reasonable excuse defence, there was a realistic prospect of a conviction. 97 HMO’s involve a number of different people living in a single property and the purpose of the licensing regime is to ensure such properties are safe and well managed. Failing to hold a licence, failing to properly manage the Property and failing to remedy hazards at the Property, including fire safety and electrical issues, which are a risk to occupiers health and safety, is a very serious matter. The Tribunal is satisfied that it would have been in the interests of justice to prosecute the Applicant for the offences. 98 The Tribunal noted that the Charging Table did not really account for mitigating factors, other than a landlord having a low income of less than £440.00 per week. Whilst the Tribunal had some concerns about a lack of such mitigating factors, the Tribunal did not consider it was necessary to depart from the Charging Table. 99 In terms of the Improvement Notice, the Tribunal noted that the starting point within the Charging Table is £5000.00 for a first offence. The Tribunal noted that many of the requirements of the Improvement Notice related to issues which could effect occupiers health and safety. The Tribunal saw no reason to depart from the £5000.00 imposed. 100 In terms of breaches of the Regulations, the Tribunal noted that the starting point was £1000 for each breach. Once again, the Tribunal noted that the purpose of the Regulations is to ensure that the HMO is well managed and occupants are safe. The Tribunal considered that the total of £4000.00 was correct. 101 The Tribunal noted that the Charging Table permits a premium of £2500 for each breach. 102 The Tribunal was satisfied that the Applicant did not intend the Property to be used as an HMO. However, the Applicant was advised by the Respondent that it was a HMO and that the Regulations needed to be complied with. Further, the Tribunal is not satisfied that there is good reason for not complying with the Improvement Notice. 103 The Tribunal considers that an additional premium of £2500 is appropriate in this case to reflect high culpability. 104 The Applicant advised that their income was around £1800 per month, but that they had recently lost their job and were looking to apply for welfare benefits. However, the Applicant also stated that they were paying for university fees and private tuition for family members, which suggests an income well above what was disclosed. The Tribunal noted that the Charging Table, at note 6, required the Applicant to provide sufficient evidence of income to qualify for the discount due to low income. The Tribunal’s decision is that the Applicant did not provide sufficient evidence that their income was less than £440.00 per week and the Tribunal did not apply any discount in this respect. 105 The Tribunal calculated the amount of financial penalty as follows:• Breach of the Improvement Notice (Section 30) - £5000• Breach of the Regulations (x4 at £1000 each) (s.234) - £4000• Premium -High Culpability - £2500 Total Financial Penalty Payable : £11,500 Summary 106 The Tribunal varies the financial penalty imposed by the Respondent to reflect that the Applicant’s conduct amounted to 2 relevant offences under sections 30 and 234 of the 2004 Act and in the sum of £11,500.00 (eleven thousand five hundred pounds). Appeal 107 If a party wishes to appeal this Decision, that appeal is to the Upper Tribunal (Lands Chamber). However, a party wishing to appeal must first make written application for permission to the First-tier Tribunal at the Regional office which has been dealing with the case. 108 The application for permission to appeal must be received by the Regional office within 28 days after the Tribunal sends written reasons for the decision to the person making the application. 109 If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason(s) for not complying with the 28-day time limit. The Tribunal will then consider the reason(s) and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit. 110 The application for permission to appeal must state the grounds of appeal and state the result the party making the application is seeking.