Guru Nanaks Properties LimitedApplicantLondon Borough of SouthwarkRespondent
Before
Judge ShepherdApollo Fonka FCIEHGurmehar Kleir for the ApplicantWayne Beglan Appeal against an emergency for the RespondentDate 22 November 2023Property: 6SWType of application: prohibition order Judge Shepherd
DECISION
26, The Tribunal’s jurisdiction in dealing with this appeal is defined by Schedule 2, paragraph 11 of the Housing Act 2004 which states: 11(1) This paragraph applies to an appeal to [the appropriate tribunal]1 under paragraph 7.(2) The appeal– (a) is to be by way of a re-hearing, but (b) may be determined having regard to matters of which the authority were unaware.(3) The tribunal may by order confirm, quash or vary the prohibition order. ………[27]The Tribunal has the benefit of the recent Court of Appeal decision in Waltham Forest v Hussain [2023] EWCA Civ 733 which gave guidance in relation to a license appeal which follows the same formulation. The Court of Appeal found as follows: Sub-paragraph (2) states that the appeal is to be by way of a re-hearing, but may be determined having regard to matters of which the authority were unaware. The word "but" which introduces the proviso in (b) is important. In this context it enables something to be done which would not otherwise be permitted. Without the proviso, the FTT would not be entitled to consider matters that were unknown to the primary decision-maker. Thus Parliament cannot have intended there to be a re-hearing in the fullest sense. The proviso assists in resolving the issue as to the time at which the question of fitness and propriety must be considered. Were it not there, the FTT would be constrained to consider only those matters that were known to the housing authority, and therefore by necessary implication, known and in existence at the time when the decision was made. That points inexorably to the conclusion that the task of the FTT is to determine whether the decision under appeal was wrong at the time when it was taken. "Wrong", as Upper Tribunal Judge Cooke explained in Marshall v Waltham Forest LBC [2020] UKUT 35 (LC), [2020] 1 WLR 3187 at [61]–[62], means in this context that the appellate tribunal disagrees with the original decision despite having accorded it the deference (or "special weight") appropriate to a decision involving the exercise of judgment by the body tasked by Parliament with the primary responsibility for making licensing decisions. It does not mean "wrong in law". Put simply, the question that the FTT must address is, does the Tribunal consider that the authority should have decided the application differently? Parliament intended the licensing decision to be taken by the local housing authority, and their decision should not be treated as a mere step on the path to a final decision being taken by the FTT, based on the latter's own evaluation of the evidence, including matters which could only be relevant if the decision were to be taken afresh as at the date of the appeal. The fact that the FTT is empowered by the proviso to consider matters that were not known to the housing authority is an indication that the FTT must make up its own mind on the question of fitness and propriety, when deciding whether the application should have been refused or granted, or whether the licence should have been revoked. Plainly this would encompass a relevant matter which existed at the time of the decision, such as a conviction or relevant professional qualification.[28]In the present case the premises were in an appalling state when we inspected some 6 months after the EPO was served. Significantly there was still evidence of water ingress and the premises appeared to be in a poor condition with walls remaining damp and an active leak underneath the shower tray. We have no doubt that the decision to serve the EPO was the correct one and the Local Authority had no real basis to decide the case differently. The EPO was imposed when there was significant damp and mould growth due to water ingress from various sources. The tenant should have been rehoused in response to the EPO but he had remained in occupation at least until the date of the hearing. This is regrettable but does not affect the decision either way as the tenant’s offer of alternative accommodation post-dates the date that the EPO was served. Summary Appeal dismissed. Judge Shepherd 22nd November 2023 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).