First Floor Flat, 100 Pearcroft Road, London, E11 4DR LON/00BH/HML/2022/0017

FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No LON/00BH/HML/2022/0017
Between
Michael AndersonApplicantLondon Borough of Waltham ForestRespondent
Before
Judge ShepherdSue Coughlin MCIEHDate 4 October 2023Property: London, E11 4DR Michael AndersonType of application: Challenging the granting of a license Judge Shepherd

DECISION

[18]Having heard his evidence on three occasions the Tribunal found Mr Anderson to be an honest and reliable witness. He has clearly suffered continual nuisance from the occupiers of the flat above him. All of his complaints appear valid. He has suffered noise nuisance, leaks into his home, threats from persons, one of whom seems likely to be Mr Abbas’s brother who was managing the premises in his absence. He has had difficulty contacting Mr Abbas and any responses through solicitors have been unsympathetic and accusatory. As the freeholder of the premises Mr Anderson would have expected to have been consulted about the subletting. Mr Abbas was directed to provide a copy of his lease. He did not do so.[19]The Respondents did not attend the hearing as is their prerogative. In effect they passed their decision onto the Tribunal satisfied that it was sound. We are required to afford “special weight” and “great respect” to their decision: Marshall v Waltham Forest LBC [2020] 1 WLR 3187 [61-62]. However, this does not mean that we are not entitled to identify errors in their procedure or to arrive at a different conclusion on the facts.[20]The Respondents accept that they did not respond to Mr Anderson’s representations due to an “administrative error”. In the Tribunal’s view this was a serious error. The Respondents may have considered Mr Anderson’s objections did not identify matters which were within the remit in the context of a license application, in particular allegations of property fraud and the possibility of re-possession the flat (their statement of case) but even if this were the case which seems doubtful particularly in relation to the property fraud allegation, Mr Anderson deserved to hear the response. He had a number of complaints most of which were within the said remit – in particular his complaints about noise nuisance and disrepair.[21]The Respondents also appear to have given little weight to the fact that they had already imposed a significant penalty on Mr Abbas for fundamental failures in the provision of fire safety equipment in 2020. Under their policy the granting of a shorter license would seem to have been a ready option in these circumstances – see in particular paras 2.29 c).[22]The Respondent’s acknowledge that a shorter license term was an option (para 46(d) of their statement of case) but state that because the premises were fire safe in February 2022 there was no problem with issuing a full five year license. The visit in February 2022 identified further deficiencies though and the Respondents did not follow up the issue of sound proofing even though it was plainly important as regards Mr Anderson’s complaints of noise nuisance.[23]The Tribunal is pleased that it was finally able to receive evidence from Mr Abbas. In our view his evidence was thoroughly unreliable. At the abortive hearing when he had asked for time to get legal - representation he was asked to provide evidence of the sound proofing he said he had carried out in January/February 2022. He produced a purported invoice from A & G Traders, 127 Blake Avenue, IG119SB for £17500 dated January 2022. There was no evidence that the invoice had been paid although Mr Abbas said he paid in cash in instalments. There was no evidence that A&G Traders actually existed and the invoice suggested that the sum was payable to Mr Abbas himself. The invoice appeared bogus. Added to this was the fact that there was simply no reference to the sound proofing works in correspondence between Mr Abbas and the council. The council asked Mr Abbas if he would soundproof in February 2022- he did not reply. This is perplexing in view of his submission that he had just done the works. Finally, Mr Anderson said he didn’t notice any works being carried out. The alleged works would have been substantial and noticeable by an immediate neighbour even if he was at work at the time. It’s very unlikely that there would have been no cross over between Mr Anderson and the workmen carrying out work that he wanted.[24]We also consider that Mr Abbas has been failing in his fundamental duties as a landlord. He has failed to follow up complaints made by Mr Anderson in a sympathetic manner. He failed to properly monitor what has been going on at the premises but preferred to communicate with solicitors letters rather than simply meeting Mr Anderson. We don’t believe Mr Abbas inspected every six weeks indeed we find that he was absent for much of the tenancy he granted. He used his brother to manage the premises and his brother was aggressive to Mr Anderson. This was in breach of his license conditions not least because his brother had not been tested as being a fit and proper person. Finally, Mr Abbas had already been given a significant financial penalty by the Respondents.[25]Were it proven definitively that the invoice produced by Mr Abbas was fraudulent we would have no hesitation in finding that he is not a fit and proper person. Unfortunately, there remains a fraction of doubt. We consider the best resolution is to vary the existing license to a 12-month license with additional conditions. The Respondents will need to assess whether the varied license has been complied with after 12 months. This will include consulting Mr Anderson.[26]The additional conditions that need to be incorporated are:[1]There shall be no more than two people in occupation of the upstairs flat.[2]The license holder must respond fully to complaints about his tenants following an objective investigation including communicating with the complaining party himself or through his properly appointed agent – see para 27 below.[27]Before the license is issued Mr Abbas needs to decide if he is going to manage the upstairs flat or if he wants to appoint a bona fide agent who is fit and proper. He needs to notify the Local Authority of his decision in this regard within 28 days so that they can carry out fit and proper person inquiries in relation to the proposed agent.[28]The Tribunal requires to see the varied license once it is drafted. In the interim Mr Abbas in particular should be aware that he is bound by the existing license conditions. Judge Shepherd 11th October 2023 12th October 2023 ANNEX - RIGHTS OF APPEAL Appealing against the tribunal’s decisions[1]A written application for permission must be made to the First-tier Tribunal at the Regional tribunal office which has been dealing with the case.[2]The application for permission to appeal must arrive at the Regional tribunal office within 28 days after the date this decision is sent to the parties.[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 state the grounds of appeal and state the result the party making the application is seeking. All applications for permission to appeal will be considered on the papers.[5]Any application to stay the effect of the decision must be made at the same time as the application for permission to appeal.