Flat above Victoria Cross Pub, Jack Cornwell Street, E12 5NN: LON/00BB/HNA/2017/0021 LON/00BB/HNA/2017/0021
DECISION
[26]As far as we could tell, the application had been brought in respect of the fine imposed upon Mr Athwal. There was no indication that the application had been brought by Eastenders; its name did not appear on the application form, the notice attached to the application form was the notice that related to Mr Athwal.[27]As Mr Islam did not represent Mr Athwal/Jeet, and because Eastenders was not a party to the proceedings, we decided to deal with the application on the papers alone and let Mr Islam leave the hearing.[28]We moved considered whether the Applicant had been guilty of an offence under section 95(1) Housing Act 2004 by being the person managing and in control of the property on 26 September 2017. There was no argument from the Applicant that he was not guilty of such an offence. He was clearly letting the Property (the Council produced a copy of the tenancy agreement in their evidence) and was entitled to take the rent for that letting; further, the Property required a licence and there was no licence at the relevant time. Accordingly, we conclude (beyond reasonable doubt) that the Applicant committed the offence.[29]We considered the matrix used by the Council. This is based on the guidance issued by the Department for Communities and Local Government (‘DCLG’). We found it to be a logical method of applying that guidance to arrive at a view of the seriousness of an offence and the appropriate financial penalty to be imposed.[30]We then considered the weightings given in the matrix by the Council; again, we found these to be largely appropriate to the case.[31]Finally, we went on to consider for ourselves, with reference to the DCLG guidance, what the appropriate financial penalty should be. First, the Applicant appears to be a person who has a small portfolio of properties and who is assumed to be;(a) making a profit from that portfolio;(b) aware of the regulatory requirement in the lettings market. Second, we consider that the offence is not of the most serious kind, but there was a glaring omission to licence in circumstances that suggest that the Applicant was well aware, or should have been well aware of the need to licence. Third, we accept the Respondent’s evidence (which was not contested) that there were safety/disrepair issues at the Property and accordingly there was harm or potential harm to the tenants in the failure to licence. Fourth, we agree that the fact that previous enforcement action had to be taken in regard to the drainage at the Property in April 2016 is a relevant factor to be weighed against the Applicant. Fifth, we considered the issues of punishment of the offender, deterrence of the offender and the removal of any financial benefit. We note that the in the matrix used by the Council, they scored Deterrence and Prevention at 10 meaning that they had low confidence that a financial penalty would deter repeat offending – it could be argued on the background and facts of this matter that the less serious section in the matrix could have been applied, that being; medium confidence that a financial penalty would deter – this would have attracted a score of 5 reducing the overall score to 35.[32]However, we have to stand back and look at the matter weighing all the relevant circumstances; the scoring on the Council’s matrix is only one matter to be taken into account.[33]We had regard to the letter dated 8 November 2017 sent by Eastenders to Mr Oatt. We are aware that this email was not sent on behalf of Mr Athwal but we have taken the letter to express what may be Mr Athwal’s concerns regarding the penalty. Dealing with the points in that letter (so far as they may relate to the Applicant); - The fact that the licensing was overlooked is not an excuse. An owner or agent of a property has a responsibility to have systems in place for matters like this and the failing of such systems is not an excuse; - The statement that the Property was due for refurbishment before it was let and no complaints from the tenants had been received is not correct. There was a complaint from a tenant which had resulted in an enforcement notice being served; further, as described above, there were disrepair and smoke detection issues found at the Property. - The fact that the company (or the Applicant) had already incurred a financial burden as the previous occupants did not pay rent for approximately 14 months is not a relevant matter. The Property appears to have been purchased for commercial development and the finding of a tenant in occupation was a business risk and unrelated to the issue of licensing. - The fact that temporary exemption notices were applied for and granted showed that there was an awareness of the need to licence and to have a proper and robust system in place to ensure that the licence was obtained – we have however given credit for the fact that there is a history of previous licensing in our decision, although, even taking into account that credit, our decision leaves the amount of the penalty unaffected.[34]The fine imposed of £2,500 is at the lower end of the scale and we believe it is at the correct level given the severity of the offence (particularly the harm or potential harm to the tenants), the fact that the Applicant did know or should have known that the Property required licensing and taking into account what we know of the Applicant’s regulatory history in the field of housing and the extent of his business interests – all of this balanced against the other factors that we have referred to in this decision.[35]Accordingly, the appeal is dismissed. Mark Martyński, Deputy Regional Tribunal Judge 16 April 2018 ANNEX - RIGHTS OF APPEAL[1]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.[2]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.[3]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.[4]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.