7 & 9 Hayes Road, Clacton-on-sea, Essex CO15 1TX CAM/22UN/HNA/2019/0021-26

FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No CAM/22UN/HNA/2019/0021-26
Between
Mrs Lystra DorvalApplicantTendring District CouncilRespondent
Before
Regional Judge Ruth WayteMarina Krisko FRICSJohn FrancisDate 15 August 2022Hearing 2022-08-02Property: 7 & 9 Hayes Road, Clacton-on-sea, Essex CO15 1TXType of application: section 249A Housing Act 2004 Regional Judge Ruth Wayte

DECISION

(1) The tribunal varies the Final Penalty Notices dated 26 September 2019 issued in respect of 7 Hayes Road to the breach of HMO Management Regulations to £15,000; and(2) The tribunal varies the Final Penalty Notices of the same date issued in respect of 9 Hayes Road to £8,000. 2 The application[1]This application is an appeal in respect of nine financial penalties imposed under section 249A of the Housing Act 2004 (“the 2004 Act”) in respect of two properties. At the time the penalties were issued, 7 Hayes Road was owned by the applicant with her husband and 9 Hayes Road was owned by her son. The penalties were all issued due to the applicant’s, as manager, alleged failure to comply with a variety of the Management of Houses in Multiple Occupation (England) Regulations 2006 (“the HMO Regulations”). The total amount claimed by the respondent was £90,000, £45,000 per property.[2]The appeal was heard by the First-tier Tribunal (“FTT”) on 9 October 2020. The decision, dated 5 November 2020, varied the penalties to £43,000 in respect of 7 Hayes Road and £27,500 for 9 Hayes Road.[3]The applicant appealed that decision in respect of the assessment of harm by the FTT and on 18 February 2022 Upper Tribunal Judge Elizabeth Cooke set aside the decision as to the level of the penalties and directed that there be a re-hearing by a different panel.[4]On 25 April 2022 I held a telephone case management conference in respect of the re-hearing, attended by both parties. Permission was given to both parties to rely on the new evidence submitted beforehand and the applicant, who had recently instructed solicitors at that point, was given until 16 May 2022 to provide any more.[5]The re-hearing took place at Cambridge Magistrates Court on 2 August 2022, the date having been notified to the parties on 31 May 2022. On 27 July 2022 the applicant made an application for an adjournment, due to the unavailability of her barrister. That application was refused on 28 July 2022, partly on the basis of insufficient information having been provided of the reason for the late application. Some further information was provided on 29 July but again I refused the application as it appeared that counsel had not been contacted until around 27 July 2022 and her solicitors confirmed they were no longer instructed. I took into account the age of the appeal, dating back to 2019 and in any event I did not consider that representation was necessary given the extent of the applicant’s written representations and the tribunal’s experience of working with unrepresented parties.[6]Mrs Dorval attended court and renewed her application to adjourn, which was refused by the tribunal. The panel included an experienced lay member with particular responsibility for ensuring that unrepresented parties are able to follow and understand the proceedings. The clerk was also able to provide Mrs Dorval with copies of all the bundles, including the one submitted on her behalf by her former solicitors. 3[7]The respondent was represented by counsel Richard Hanstock. Their witness was Grant Fenton-Jones, who relied on his statement dated 24 March 2022 and the bundle produced for the re-hearing on 29 March 2022. Other members of Tendring District Council attended the hearing as observers. Mr Hanstock had prepared a Skeleton Argument which had been sent to Mrs Dorval before the hearing. She confirmed she had read it and was provided with a hard copy by the tribunal. Background[8]Both the original FTT decision and the UT decision set out the background to this appeal. In short, the applicant had obtained HMO licences for both properties in late 2017/early 2018, having previously used them as a residential care home for some years. The properties were let using managing agents, with 8 tenants in number 7 and 6 in number 9. PC Southgate, an officer on Clacton’s Community Policing Team, gave a witness statement with details of the occupants who were mainly known to the police and had a history of drug or alcohol misuse. Perhaps unsurprisingly, a number of complaints were received about high risk anti-social behaviour from October 2018. That behaviour began to spiral out of control from March 2019 leading to the respondent serving emergency prohibition orders on both properties on 12 August 2019. Since that date the properties have remained empty and the applicant stated at the hearing that number 7 had been repossessed by her mortgagees, although no evidence was provided to support that claim.[9]The original FTT’s findings in respect of the breaches of the regulations were not appealed but given that this tribunal needed to re-hear the question of the amount of any penalties which followed from those breaches, some further evidence was considered on 2 August 2022. We have dealt with each breach in turn, in respect of each property and will briefly set out the original findings and any additional findings made by this tribunal.[10]As indicated in Grant Fenton-Jones’ statement, the respondent argued that the original FTT findings should be maintained at the re-hearing. The Law[11]Financial penalties as an alternative to prosecution were introduced by the Housing and Planning Act 2016 which amended the Housing Act 2004 by inserting a new section 249A and schedule 13A. It is for the local authority to decide whether to prosecute or impose a fine and guidance has been given by the Ministry of Housing, Communities and Local Government (now renamed as the Department for Levelling Up, Housing and Communities). In order to impose a financial penalty the local authority must be satisfied beyond reasonable doubt that the conduct amounts to a relevant housing offence. 4[12]Section 249A lists the relevant housing offences which include offences under section 234 (management regulations in respect of HMOs) of the 2004 Act.[13]Schedule 13A sets out the requirement for a notice of intent to be given before the end of 6 months beginning with the first day on which the authority has sufficient evidence of the conduct to which the financial penalty relates. It also contains provisions in respect of the right to make representations within 28 days after that initial notice and the requirements for the final notice.[14]Appeals are dealt with in paragraph 10 of Schedule 13A. The appeal is a re-hearing and may be determined having regards to matters of which the authority was unaware. On an appeal the First-tier Tribunal may confirm, vary or cancel the final notice.[15]The maximum civil penalty for each offence is £30,000. The relevant factors as set out in the MHCLG guidance are:(a) Severity of the offence;(b) Culpability and track record of the offender;(c) The harm caused to the tenant(d) Punishment of the offence(e) Deter the offender from repeating the offence(f) Deter others from committing similar offences.(g) Remove any financial benefit the offender may have obtained as a result of committing the offence.[16]It is now usual for each local authority to have developed their own enforcement policy. The Upper Tribunal has confirmed that while the tribunal should consider for itself what penalty is merited by the offence under the terms of any such policy, weight should be given to the assessment made by the authority of the seriousness of the offence and the culpability of the appellant.[17]Tendring’s Private Sector Housing Enforcement Policy dated July 2018 has a five-stage process to calculate financial penalties. First, there is a determination of the severity of the offence and culpability as follows: Severity of Offence Factors Culpability Serious breach of legislation Very High History of failing to comply with legislation High A breach of legislation with capacity to cause a more serve harm outcome if left unattended Medium Minor offence in isolation Low The second step is to assess the harm, using the following table: 5 Harm Outcome Harm category Serious adverse effect on individual or high risk of serious adverse effect. Vulnerable people taken into account. Category 1 Adverse effect but less than above. Medium risk of adverse effect, or low risk but of a serious effect. Category 2 Low risk of adverse effect Category 3 Culpability and harm are then put into a third table to determine which scale of the Standard Scale under the Criminal Justice Act 1982 should apply: Culpability Harm Cat 1 Harm cat 2 Harm cat 3 Very High 6 5 4 High 5 4 3 Medium 4 3 2 Low 3 2 1 The fourth step is therefore to calculate the range of the penalty from that scale: Score Level of penalty £ 1 1 - 500 2 501 - 1000 3 1001 - 2500 4 2501 - 7000 5 7001 – 17000 6 17001 - 30000 Finally, the Council refers to a non-exhaustive list of aggravating or mitigating factors to be considered in setting the penalty. The policy suggests that the discretion is within the range of the appropriate scale. 7 Hayes Road - Regulation 4: Safety Measures[18]As stated above, 5 penalty notices were issued in respect of 7 Hayes Road for breaches of the HMO Management Regulations. The first was for the breach of regulation 4(2), the duty of the manager to ensure that any fire-fighting equipment and fire alarms are maintained in good working order. The original FTT held that the fire alarm was not in good working order as a fault was displayed on the control panel, this was proven by oral and photographic evidence.[19]The respondent submitted the appropriate penalty was £12,000. They relied on persistent faults identified on the control panel during their visits on 9 April 2019, 22 May 2019, 6 August 2019 and 8 August 2109. They had initially also relied on a visit by the applicant’s contractor on 23 May 2019 but agreed that since the invoice shows the alarm was left 6 in good working order that day, that was really mitigation for the applicant. However, they claimed that the reports by TR Fire and Security Ltd indicated that major upgrades were required to the system and that the applicant’s failure to act on that advice should be held against her.[20]The respondent argued that culpability should be assessed as high, justified by the importance of fire detection and evidence of the persistent failure to comply with the regulation. Harm should be assessed as Category 1, due to the risk of serious injury or death, particularly in the context of these properties. That led to a score of 5 and a penalty range of £7001 – 17000. The respondent argued that aggravating factors were the avoidance by the applicant of the financial cost of compliance and the wider sub-standard accommodation. Those were mitigated by the lack of relevant/recent convictions. The original FTT had set the penalty at £12,000 (midway) and quashed the penalty issued for 9 Hayes Road as there was just one alarm serving both properties. As set out above, the respondent argued that all the penalties determined by the original FTT should be upheld.[21]In response, the applicant had produced evidence from Euro Fire Ltd that the fire alarm was checked and found to be in satisfactory condition on 3 May 2018. At that time she had the alarm inspected annually, but subsequently moved to a six monthly regime with a different company in May 2019. Again, two invoices were produced from TR Fire and Security Ltd, showing that the faults were cleared on 23 May 2019 and in October 2019, after the properties had been emptied of occupants. She claimed that the occupants had tampered with the system and that she had asked one of them to check the alarm each night, with the agreement of Mr Fenton-Jones’ predecessor. Her submission was that she had taken every possible step to ensure that the fire alarm was working correctly, in accordance with her duty as manager. Tribunal’s decision[22]Although the respondent submitted that the applicant failed to follow the advice from TR Fire and Security in May 2019 that some of the sounders needed to be upgraded, due to the age of the system, we considered that the applicant had provided evidence of an attempt to keep the alarm in good working order. An annual inspection regime is insufficient in an HMO but she had moved to a 6 monthly regime in May 2019 and the alarm was left in working order on 23 May. The October report indicated that there was an intermittent fault on the system, which may have caused the problem as opposed to tampering by the tenants but the applicant would have been unaware of that at the time. There was also insufficient time between the visits on 6 and 8 August 2019 to call in an engineer and in any event by then the occupants of number 7 were out of control and a prohibition order 7 appeared inevitable, in fact the applicant had asked the council to close the property some months earlier.[23]In the circumstances, we consider that the most accurate level of culpability in the policy is medium: a breach of legislation with capacity to cause a more severe harm outcome if left unattended. A history of failing to comply with legislation does not fit with the applicant’s attempts, albeit inadequate, to maintain the alarm. We agree that in terms of fire safety, it is inevitable that harm will be assessed as category 1: a high risk of a serious adverse effect - the properties are both three storey houses with a large number of occupants. In those circumstances the score on the Standard Scale is 4: £2501 – 7000.[24]Given that the applicant had arranged for companies to inspect the alarm, we disagree with the respondent’s aggravating factor on costs. She was unaware that there was an intermittent fault until after the properties were closed. We agree that the accommodation was substandard but this is balanced by her lack of convictions and some record of maintenance of the alarm. In those circumstances we consider a mid-range penalty of £4,000 is the right balance. As with the original FTT, the respondent accepted that since there is just one alarm serving both properties, there should only be one penalty. Regulation 6: duty of manager to maintain gas and electricity[25]The original FTT set this penalty at £20,000 on the basis that the breaches were proven by failure to supply gas and electricity certificates only. They also found that a gas fire in one of the rooms was not sealed off as the applicant alleged.[26]The respondent pointed to their Housing Health & Safety Rating System (HHSRS) assessments in respect of electrical hazards which came to a rating of a Category 1 hazard noting broken socket outlets, unstable ceiling roses and non-enclosed fittings in the bathrooms. They were particularly concerned about an external strip light. Their main concern in relation to gas followed from a visit to the property on 13 August 2019, after the property had been closed. They found that the gas fire had been pulled away from the chimney breast and there was an escape of gas. The applicant’s builder was able to disconnect the supply but this incident led to the argument that the gas fire had not been capped.[27]In the circumstances, culpability was assessed as very high, a serious breach of legislation. Harm was assessed as category 1, a high risk of serious adverse effect. That produced a level 6 range of £17001-30000. Applying the same aggravating and mitigating factors as before, the respondent argued that £20,000 was appropriate to reflect the two separate breaches. 8[28]In response, the applicant maintained that she had provided both certificates at an earlier stage, in connection with her application for an HMO licence. Both the tribunal and the respondent agreed that it would usually be necessary to provide that documentation to obtain a licence but the applicant was unable to produce the electrical certificate which she said was dated October 2014. She was able to provide a Landlord Gas Safety Record dated 19 November 2018 which would have been valid as at the date of the offence. The respondent argued that the certificate was unsatisfactory as the gas cooker had not been tested and the gas fire was not mentioned at all. The tribunal pointed out that the report was ambiguous as it later recorded there was no gas cooker and the applicant confirmed that the cooker at number 7 was electric. Mr Fenton-Jones was unable to rebut that submission. The applicant was also adamant that the gas fire had been capped over 20 years previously and the gas leak was due to the vandalism. The tribunal’s decision[29]Although we are bound by the original findings that the certificates were not produced in 2019, it must be right to reflect the probability that they would have been provided at the time of the application for the HMO licence in 2017/18 and the fact that the gas certificate has now been produced. We also accept that the applicant believed the gas fire had been capped. We find, on a balance of probabilities, that the gas leak was due to the vandalism which occurred after the service of the prohibition order. It seems to us that if a fire is pulled away from the chimney, a gas leak is likely to happen due to the rupture of the gas pipe, even if that appliance had previously been capped.[30]In those circumstances we consider that culpability is again more accurately described as medium: a breach of legislation with capacity to cause a more severe harm outcome if left unattended. Once again, we agree with the respondent that category 1 must be the right assessment in terms of there being a high risk of a serious adverse effect, supported by the HHSRS assessment and further evidenced by photographs in the respondent’s bundle. As before, this leads to a score of 4 on the Standard Scale and a range of £2501 - 7000 for the penalty. We consider that the risk is really in respect of the electrics as opposed to gas, given the conclusions above and the recent “pass” in terms of the gas supply. In those circumstances we consider that a penalty of £6,000 properly reflects the breach, with the main aggravating factor being the substandard nature of the accommodation as a whole. Regulation 7: duty of manager to maintain common parts etc[31]There were three breaches: 7(1) in respect of keeping the common parts clear from obstruction; 7(2) keeping the stair coverings in good repair and 7(4) keeping the external common areas in repair, clean condition and good order. The original FTT found that the duty was breached in 9 all three cases, relying on oral and photographic evidence. Mr Fenton- Jones confirmed that most of the photographs were taken on 6 August 2019, with the problems with the drain covers discovered on 23 August 2019. The photographs showed a huge accumulation of rubbish and clothes and a broken stair and ripped carpet in the communal hallway; broken and insecure drain covers outside, the derelict lean-to at the rear of the property and rubbish and other items in the back yard and damaged doors and door locks.[32]The respondent argued that the penalty should be £7,000. Culpability was high; a history of failing to comply with legislation and harm category 2; a medium risk of adverse effect, given that the problems were at a low or ground level. That produced a score of 4 and a range of £2501 – 7000. They argued that the top of the range was justified due to the number of breaches.[33]The applicant maintained that most of the problems were due to the anti-social behaviour by the tenants. The respondent accepted that was correct in relation to the rubbish and physical damage in the hallway but pointed out that the applicant should at least have removed the lean-to and other items in the back yard and bore responsibility for the drain covers which had clearly deteriorated due to age rather than vandalism. The tribunal’s decision[34]Again, we did not consider that the respondent could show the applicant had a “history of failing to comply with legislation”. They agree that the property deteriorated rapidly over a relatively short period of time, from May to August 2019. They rely on photographs taken on or after 6 August 2019 and accept that much of the rubbish and damage was caused by the tenants. In those circumstances we think culpability is once again more accurately described under their policy as medium: a breach of legislation with capacity to cause a more severe harm outcome if left unattended.[35]We agree with the assessment of harm as category 2, the risk of an adverse effect was clearly lower for this breach compared to fire or electrical/gas safety. In those circumstances the score is 3, with a scale of £1001 – 2500. We agree that the penalty should be at the top of this range to properly reflect the risk due to the items which were clearly the applicant’s responsibility, in particular the rusted through drain cover and the derelict lean-to and other items in the rear yard. We therefore vary this penalty to £2,500, the maximum of this band. Regulation 8: duty of manager to maintain living accommodation 10[36]This breach was in relation to flat 4 on the first floor and the leak from the flat roof above which penetrated the ceiling, causing damage to the plaster and paper. The original FTT varied the penalty to £3,000, having agreed with the respondent that the appropriate scale was 4: based on medium culpability and category 1 harm. The respondent argued for the same scale but based on high culpability and category 2 harm. They had originally sought a penalty of £5,000 as a mid-range offence.[37]The applicant’s response to this evidence was unclear, she appeared to be alleging that the leak was due to the theft of lead from the roof but the evidence indicated that this leak was from a hole in a flat roof which was clearly very old (in excess of 10 years) and in disrepair. The tribunal’s decision[38]Given the location of the damage we do not agree that the harm can be described as category one: the leak is away from the light fitting and near the door to the room. We note the respondent argued for category 2, a medium risk of adverse effect, with which we agree. For the reasons stated above, we also consider that culpability is medium. Although the flat roof was old, the photographs were again taken on 6 August 2019 and there was no evidence that the leak had happened much earlier. This gives a score of 3 and a range of £1001-2500. Given that this breach affects only one room we think a penalty of £1,500 is appropriate, mainly reflecting the applicant’s failure to properly maintain the flat roof. Regulation 9: duty to provide waste disposal facilities[39]The manager must ensure that sufficient bins are provided and make such further arrangements for the disposal of refuse as may be necessary, having regard to any service provided by the local authority. The original FTT found that both duties were breached, proven by oral and photographic evidence. The photographs, again taken on 6 August 2019, showed an accumulation of rubbish at the front and rear of the property with two wheelie bins provided by the council (one for each house) and one “Biffa” commercial bin provided by Colchester Skip Hire; clearly insufficient for the quantity of rubbish.[40]The respondent suggested culpability was medium, with a harm of 3 due to the low risk of an adverse effect. This led to a score of 2 and a range of £501 – 1000. The original FTT had agreed with their penalty of £1,000 due to the sheer volume of waste.[41]The applicant argued that she had ordered a further 14 bins from the council, one for each occupied room but her order had been stopped. She also claimed that the council had failed to collect the rubbish. Mr 11 Fenton-Jones replied that the council only provided one wheelie bin per property and these could be seen on the photographs. The council did not provide a rubbish collection service for HMOs, it was for the applicant to make her own arrangements in accordance with the regulation. The tribunal’s decision[42]We agree with the respondent’s assessment of culpability and harm. We also agree that the penalty should be at the top of the range of £501-1000 for the reasons given: the sheer volume of rubbish and the failure of the applicant to make her own arrangements. The penalty is confirmed at £1,000.[43]That makes the total penalty for 7 Hayes Road £15,000. In our view this is a proportionate amount properly taking into account the deterioration of the property over a relatively short period due mainly to the anti-social behaviour of the tenants but exacerbated by the longer term failure of the applicant to keep her property in good repair and properly manage it as an HMO. 9 Hayes Road: regulation 6 – duty to maintain electricity[44]The original FTT made exactly the same finding for 9 Hayes Road in respect of the failure to supply gas and electricity certificates as for 7 Hayes Road. However, as part of the new evidence allowed for the rehearing, the applicant provided a Customer Checklist from British Gas dated 26 January 2021 which stated that there was no gas supply at 9 Hayes Road. The respondent was unable to rebut this evidence. The respondent’s bundle also included a copy of a Domestic Electrical Installation Report for 9 Hayes Road, dated 16 September 2019. This gave an overall assessment as unsatisfactory, with one item requiring urgent remedial action – the absence of RCD protection for socketoutlets in a location containing a bath or shower.[45]The respondent relied on the same evidence as that submitted for number 7, except for the gas leak. Prior to the evidence in respect of the lack of a gas supply at number 9, they had argued that the penalty set by the original FTT of £20,000 was correct, reflecting two separate breaches; culpability very high, harm category 1, amounting to a score of 6 and a range of £17001-30000. The tribunal’s decision[46]As with the findings in respect of 7 Hayes Road, we considered that medium: a breach of legislation with capacity to cause a more severe harm outcome if left unattended was a more accurate description of the applicant’s culpability under the respondent’s policy. Given the new 12 evidence from the applicant, we also found that there was no gas supply at number 9. That said, the electrical report from September 2019 indicated one potentially dangerous fault and an overall assessment of unsatisfactory. With that in mind, we agree that harm remains category 1: a high risk of a serious adverse effect. This leads to a score of 4 and a range of £2,501 – 7,000. Given the penalty of £6,000 for two breaches at number 7, we think that the penalty here should be less and that £4,000 reflects the lack of gas but an enhanced risk from the electrical installation as shown on the report. Regulation 7: maintenance of common parts[47]The respondent produced the photographs which the original FTT found established the breaches, including a number of cracked windows, missing balustrades to the stairs, poor quality repairs to bathroom fittings and rubbish in the back garden.[48]As before, the respondent argued for high culpability and category 2 harm, leading to a score of 4 and a range of £2501-7000. The original FTT set the penalty at £4,000, which they argued should be maintained.[49]The applicant claimed that the damage was due to vandalism caused by the occupants on 7 August 2019. The respondent stated that the photographs were taken on 6 August 2019. The tribunal’s decision[50]Although there was less obvious damage by the tenants to this property, it is likely that they were responsible for at least the missing balustrades and obviously the rubbish both internally and externally. As before, it also seems clear that the deterioration happened over a relatively short period of time, from May to August 2019 and by 6 August when the photographs were taken by the respondent. For those reasons we consider that culpability should really be medium but agree with the assessment of category 2 harm. This produces a score of 3 and a penalty range of £1001-2500.[51]Given the amount of breaches and the general condition of the property we consider that a penalty at the top of that scale is appropriate: £2,500. Regulation 8: maintenance of living accommodation[52]The original FTT found breaches in respect of a window, which was in disrepair, a broken extractor fan and damaged door locks which had been subjected to very poor attempts at repair. They set a penalty of £2,500, based on a finding of medium culpability, category 2 harm and 13 a score of 3 with a range of £1001-2500. The respondent argued that this should be upheld. Again, the applicant argued that the damage had been caused by the occupants. The tribunal’s decision[53]We agree with the original FTT that medium culpability and category 2 harm is the correct assessment of this breach in accordance with the respondent’s policy. Given the fact that there are several defects, we consider that the penalty should be set at the same level as for the damage to the ceiling in the neighbouring property, £1,500. Regulation 9: waste disposal facilities[54]The respondent relied on exactly the same evidence as with number 7, as did the applicant. The respondent submitted that another £1,000 would be the appropriate amount for the failure to arrange waste disposal for both properties. The tribunal’s decision[55]The two properties have a shared front forecourt and the photographs showed practically all of the rubbish piled up near to the “Biffa” bin in front of number 7. Although a separate notice was served, it relies on exactly the same facts. For this reason, we consider that no additional penalty is due.[56]We have therefore varied the penalties for 9 Hayes Road to a total of £8,000. We consider that this is a proportionate amount, reflecting the slightly better conditions at this property and the fact that the penalties for the fire alarm and waste disposal facilities in our view are properly dealt with by one penalty covering both properties.[57]As can be seen, we largely agreed with the assessment of harm by both the council and the original FTT. Where we differed was in respect of the first assessment which under the policy combines the severity of the offence with culpability. Generally we considered that “medium: a breach of legislation with the capacity to cause a more severe harm outcome if left unattended” was a more accurate description of the applicant’s failure to comply with the various HMO regulations over a relatively short period of time and in the face of extreme anti-social behaviour by the occupants. This had led to a variation of the total penalties to £23,000 which will in large measure remove any financial benefit to the applicant as manager over the period of the council’s involvement with the properties in 2019. Name: Judge Ruth Wayte 14 Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. 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 for not complying with the 28 day time limit; the tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber). --- decision_2.pdf --- © CROWN COPYRIGHT FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : CAM/22UN/HNA/2019/0021-26 HMCTS code (paper, video, audio) : P:PAPERREMOTE Property : 7 & 9 Hayes Road, Clacton-on-sea, Essex CO15 1TX Applicant : Mrs Lystra Dorval Respondent : Tendring District Council Type of application : Application for permission to appeal Tribunal member(s) : Regional Judge Ruth Wayte Marina Krisko FRICS John Francis Date of decision : 20 September 2022 DECISION REFUSING PERMISSION TO APPEAL Covid-19 pandemic: description of determination This has been a determination on the papers in accordance with the standard practice for consideration applications for permissions to appeal. The applicant’s arguments were on an excel spreadsheet sent to the tribunal on 9 September 2022. DECISION OF THE TRIBUNAL[1]The tribunal has considered the applicant’s request for permission to appeal dated 9 September 2022 and determines that:(a) it will not review its decision; and(b) permission be refused. 2[2]In accordance with section 11 of the Tribunals, Courts and Enforcement Act 2007 and rule 21 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, the applicant may make further application for permission to appeal to the Upper Tribunal (Lands Chamber). Such application must be made in writing and received by the Upper Tribunal (Lands Chamber) no later than 14 days after the date on which the First-tier Tribunal sent notice of this refusal to the party applying for permission to appeal.[3]Where possible, you should send your further application for permission to appeal by email to Lands@justice.gov.uk, as this will enable the Upper Tribunal (Lands Chamber) to deal with it more efficiently.[4]Alternatively, the Upper Tribunal (Lands Chamber) may be contacted at: 5th Floor, Rolls Building, 7 Rolls Buildings, Fetter Lane, London EC4A 1NL (tel: 020 7612 9710).

REASONS

[5]The applicant’s grounds requested the removal of various financial penalties varied by the tribunal based on arguments that evidence which post-dated the closure of the properties on 12 August 2019 (following the service of a Prohibition Order) was wrongly taken into account, that the damage was caused by the tenants after the closure of the properties or that she disagreed with the tribunal’s findings of fact in the decision dated 15 August 2022.[6]Certain evidence which post-dated the closure of 7 Hayes Road was introduced by the applicant and accepted by the tribunal in its decision to reduce the penalties for maintenance of the fire alarm– for example in paragraphs [21] and [24]. The applicant has misunderstood the tribunal’s approach which was to assess the condition of the property prior to its closure but allow the applicant to rely on other evidence which post-dated August 2019 to argue that the penalties should be reduced. If the tribunal had refused to consider that evidence the penalties may not have been reduced at all.[7]The other grounds repeat the applicant’s case stated at the hearing or seek to make new arguments now which could and should have been raised at the time. In effect they amount to a disagreement with the tribunal’s findings of fact based on the evidence given at the hearing or a misunderstanding of those findings. For example, the tribunal found in [29] that the gas leak occurred after the closure of 7 Hayes Road. Given that the penalty was for the failure to maintain both gas and electricity supplies, a penalty was still found to be due, albeit at a much lower level. In [37] the argument in relation to theft of lead from the main roof was considered but the tribunal decided that the leak was due to the flat roof. The applicant disagrees with that finding.[8]The same issues arise in respect of 9 Hayes Road. At [44] the tribunal took the applicant’s evidence that there was no gas supply to the 3 property into account and reduced the penalty as a result. The tribunal found that the council’s photographs were taken on 6 August 2019, for example at [50] and agreed with the original tribunal that the quality of the repairs carried out by the applicant were poor [52]. The application for permission to appeal either misunderstands these conclusions or disagrees with them.[9]In the circumstances, the tribunal does not consider that any ground of appeal has a realistic prospect of success. Name: Judge Wayte Date: 20 September 2022