111 Harrow Road, London E11 3PS LON/00BH/HNA/2025/0734
FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No LON/00BH/HNA/2025/0734
Between
Dave EdwardsApplicantLondon Borough of Waltham ForestRespondent
Before
Judge P Korn
Members
Ms S Coughlin MCIEHProfessor S GreerIn person, together with his wife Jean Ambrose for the ApplicantJohn Fitzsimons of Counsel Appeal against a financial penalty – for the RespondentDate 4 June 2026Hearing 2026-05-29Property: 111 Harrow Road, London E11 3PSType of application: Section 249A of, and Schedule 13A to, the Housing Act 2004 Judge P Korn
DECISION
Description of hearing The hearing was a face-to-face hearing. Decision of the tribunal The final notice served by the Respondent on the Applicant is confirmed, and therefore the financial penalty remains at £7,600. Introduction and background[1]The Applicant has appealed against a financial penalty imposed on him by the Respondent under section 249A of the Housing Act 2004 (“the 2004 Act”) in relation to the Property.[2]The financial penalty was imposed on the Applicant under section 95(1) of the 2004 Act for being “a person having control of or managing a house which is required to be licensed under [Part 3 of the 2004 Act] but is not so licensed”.[3]A brief summary of the factual background to this case as set out by the Respondent and insofar as not disputed by the Applicant is as follows:• The relevant selective licensing scheme came into force in April 2015, the Applicant having been a leaseholder since 2004. That scheme expired on 31 March 2020 but was later validly extended to cover the period of the Applicant’s alleged offence.• In 2016 the Applicant applied for and obtained a licence for the period to 31 March 2020. In 2021 he applied for a renewal of the licence and on 21 March 2022 the Respondent proposed a 1 year licence (rather than a 5 year licence) because of alleged service charge arrears at the Property. There was correspondence between the parties, in particular regarding the service charge dispute, culminating in the grant of just a 1 year licence expiring on 8 May 2023.• On 17 September 2024 the Respondent visited the Property. It was occupied by a Moremi Ogunsanya who said that she had been living at the Property for over 6 – 7 months and had been paying the Applicant £1,200 per month in rent.• After checking that the Applicant had not applied to renew his expired licence, the Respondent issued the Applicant on 13 March 2025 with a notice of intention to issue a civil penalty of £9,500.• On 17 April 2025 the Applicant submitted a licence application for the Property and then on 2 July 2025 the Respondent issued the Applicant with a final notice of a decision to impose a penalty of £7,600, the reduced amount reflecting a discount for the fact that the Applicant had applied for a new licence. Respondent’s written case[4]The Respondent notes that the Applicant is the leasehold owner of the Property and that the London Borough of Waltham Forest (in its capacity as landowner) is the freehold owner of the Property. The date of the Applicant’s alleged offence under section 95 of the 2004 Act is 17 September 2024, and the Property was occupied at the relevant time by a Ms Moremi Ogunsanya.[5]In relation to the Applicant’s grounds of appeal, the Respondent does not understand him to dispute that the Property was let at the time that the offence is alleged to have taken place, and nor does he challenge the proposition that a licence was required in order for the Property to be let out. Instead, the Respondent understands the Applicant’s complaints against the penalty notice to be:(i) that he did have a licence because an application for a 5 year licence was made in 2021,(ii) that even if he did not have a licence he had a reasonable excuse for failing to license the Property given his service charge dispute with the London Borough of Waltham Forest acting as freehold owner of the Property, and(iii) the level of the penalty is too high.[6]As to how local housing authorities should approach the issue of financial penalties, the Respondent notes that they must have regard to any guidance given by the Secretary of State, and that guidance is provided in Civil Penalties under the Housing and Planning Act 2016: Guidance for Local Housing Authorities (April 2018). It provides that authorities should develop their own policies on determining the appropriate level of penalty, which should include severity, culpability, harm, punishment, deterrence, and the removal of any financial benefit obtained.[7]It is established law that the local housing authority is the primary decision-maker. If there is to be a departure from its lawfully adopted policy it is the Applicant who has the burden of persuading the tribunal to do so, and such submissions should be viewed against the objectives of the policy so that there is an assumption that it will be afforded “considerable weight” (decision of Upper Tribunal in Waltham Forest LBC v Marshall [2020] 1 WLR 3187 at [54]-[62]). That proposition was approved by the Court of Appeal in Sutton v Norwich CC [2021] 1 WLR 1691 at [14].[8]The Respondent notes that in his grounds of appeal the Applicant states that “A licence under section 95(1) Housing Act 2004 Part 3 was held for the above premises by me since 2016 for 5 years. Again, I had a valid premises licence for 2021 for 5 years. So do not believe I failed to ensure that the premises was licensed under the Council's Selective Licensing Scheme, contrary to Part 3 section 95…”. The Respondent contends that this is incorrect as the facts plainly show that he was not in receipt of a second 5 year licence and was instead holding a 1 year licence that expired on 8 May 2023.[9]As regards any possible defence of reasonable excuse, the Respondent notes that the Applicant admits that he was aware that a licence was required, and the Applicant contends simply that the Respondent should have granted a 5 year licence in 2021 and that its failure to do so was wrong.[10]In the Respondent’s submission, the key point here is that it is entitled to exercise its discretion in granting a licence and can grant a licence for any period less than 5 years (see section 91(4) 2004 Act). In this case, the Respondent granted a 1 year licence because it wished to give the Applicant an opportunity to rectify the long-running issue regarding service charge arrears. If the Applicant was dissatisfied with the Respondent’s decision to grant only a 1 year licence he could have appealed that decision, but he failed to do so.[11]The Applicant then continued to operate without a licence for over two years, including on the date of the alleged offence, and his failure to secure a licence was his own. In his grounds of appeal, he makes it clear that he was aware that the licence granted in 2022 was only for 1 year and that he knew there was a requirement for the Property to be licensed. In February 2023, the Respondent also reminded him that the licence was expiring.[12]As regards the Applicant’s reference to his service charge dispute with the London Borough of Waltham Forest in their capacity as the freehold owner of the Property and their alleged delay in resolving the dispute, the fact that this dispute was continuing is in the Respondent’s submission not a reasonable excuse for the Applicant not having applied for a further licence after the 1 year licence had expired. Instead of applying for a further licence he actively took steps to let the Property to a new tenant at the beginning of 2024, several months after the expiry of the licence in May 2023.[13]The Respondent adds that it is clear from the Applicant’s witness statement dated 16 March 2026 that he accepts that he was and remains in service charge arrears; what he disputes is simply the amount.[14]As regards the amount of the penalty, the Respondent had regard to its housing enforcement policy. It took as its starting point the sum of £7,500, as under its policy the alleged offence in this matter falls within the scope of “moderate offence, band 2”, which has a starting point of £7,500. That figure was increased by £2,000 given the Applicant’s clear knowledge of the licensing requirements and the need to obtain a property licence. That factor is listed as an aggravating factor in the Respondent’s policy. However, the amount of £9,500 was subsequently reduced by 20% to reflect the fact that the Applicant applied for a licence after the Respondent issued the notice of intention. Applicant’s written case[15]The Applicant states that whilst he only had a 1 year licence it would have reverted to being a 5 year licence if it had not been for the service charge dispute with the London Borough of Waltham Forest (LBWF). He was always in communication with LBWF but they delayed investigating his concerns seriously for 2 years. In particular, they refused to discuss service charge overcharging issues, simply informing him that their figures could be relied on and did not contain errors. In the end, his complaint regarding the service charges was partially upheld and he was reimbursed just over £500.[16]He also considers the level of the penalty to be too high as the Property was unrented for 8 months.[17]He accepts that he was not ignorant of the need to have a licence but states that he is a good landlord who has looked after his tenants and the Property very well over the years.[18]He adds that he believed that whilst he was in communication with LBWF and with the Respondent’s licensing team a decision about how much service charge he owed would be made before the expiry of his 1 year licence and he would have paid off the arrears and been offered another 5 year licence. His witness statement contains more detail as to his dealings with LBWF and the Respondent’s licensing team as well as about the service charge dispute and his dissatisfaction with the way in which it was dealt with. The hearing – initial oral submissions by Applicant[19]At the hearing, the Applicant was supported by his wife, Jean Ambrose, and references in the following paragraphs to things said by the Applicant include oral submissions made by his wife.[20]The Applicant said that he had challenged the decision only to grant him a 1 year licence in his dealings with the Respondent’s team but he accepted that he had not actually appealed that decision at the First-tier Tribunal (FTT). He said that during this time he felt that he and the Respondent’s team were working together to resolve the issues, and he also said that he did not know about his right to appeal the licensing decision to the FTT.[21]The Applicant confirmed that the Property was left unrented for 8 months after the expiry of the 1 year licence but accepted that he then rented out the Property in February 2024 without a licence.[22]He took the tribunal through a chronology of events, in particular emphasising his dissatisfaction with what he saw as a lack of engagement by LBWF in respect of his service charge concerns. He felt that the penalty was unfair because he could not simply evict his new tenant, and he also repeated his submission that he derived no monetary gain from letting the Property without a licence due to the Property having been left unrented for 8 months. Cross-examination of witnesses Applicant[23]Neither the Respondent nor the tribunal had any questions for the Applicant. Catherine Lovett[24]Ms Lovett is a Team Manager within the Respondent’s Private Sector Housing and Licensing Team and is a registered Environmental Health Practitioner. She has given a witness statement dealing with the factual background and the Respondent’s decision-making process.[25]During examination in chief, Ms Lovett said that the notice of proposal to grant a 1 year licence stated that it could be extended if the service charge dispute was resolved [228 of Respondent’s bundle]. The Applicant did not apply to vary the 1 year licence before it expired, and the Applicant was reminded that it was due to expire and warned against letting the Property without having a licence in place [243 of Respondent’s bundle]. Ms Lovett also explained by reference to the Respondent’s enforcement policy how the Respondent calculated the penalty of £7,600 [42 of Respondent’s bundle].[26]In cross-examination, the tribunal noted that the Respondent had added £2,000 to the financial penalty for the aggravating factor of being aware of the need to license the Property and it asked Ms Lovett why the amount had been set at £2,000. Initially she just said that this was an informal internal policy but later it became apparent that the written enforcement policy itself [39 of Respondent’s bundle] dealt with the point, as follows: “If a single aggravating factor is identified, the indicative minimum tariff will normally be increased by up to, but not exceeding £2000”. Ms Lovett was, though, unable to explain why the maximum amount of £2,000 had been applied in this case.[27]Also in cross-examination, the tribunal asked questions about the decision only to grant a 1 year licence. Ms Lovett said that the Respondent would generally consult with the freeholder where its leaseholder was letting out premises and that it would consider any disputes mentioned by the freeholder, including in relation to any rent or service charge arrears. When asked to explain how the Respondent had been able confidently to conclude that the Applicant was at fault in relation to the disputed service charges such that it was reasonable to penalise him by only granting a 1 year licence, she was unable to do so. It was also put to her that despite the separation of powers between the London Borough of Waltham Forest as landowner and as local housing authority it was possible that the local housing authority had simply taken the landowner narrative at face value without properly and objectively investigating the position. Ms Lovett said that she was not in a position to comment on this point. Tribunal’s analysis[28]Under Schedule 13A to the 2004 Act, this appeal is a re-hearing of the Respondent’s decision but may be determined having regard to matters of which the Respondent was unaware.[29]Under section 95(1) of the 2004 Act, “a person commits an offence if he is a person having control of or managing a house which is required to be licensed under this Part [i.e. Part 3 of the 2004 Act] but is not so licensed”.[30]It is common ground between the parties that the Property required a licence under Part 3 and that it did not have a licence on the date specified in the Respondent’s final notice, and on the basis of the evidence before us we are satisfied that both of these points have been proven.[31]We are also satisfied on the evidence before us that the Applicant was a “person managing” and/or a “person having control” in relation to the Property, as those terms are defined in section 263 of the 2004 Act, and the Applicant does not deny this. Therefore, subject to the availability of any relevant defences, we are satisfied that the Applicant has committed an offence under section 95(1) of the 2004 Act. Defence of reasonable excuse[32]Without quite using the phrase “reasonable excuse”, the Applicant effectively submits that he had a reasonable excuse under section 95(4) of the 2004 Act for the failure to have licensed the Property by the date specified in the final notice.[33]Section 95(4) reads as follows: “In proceedings against a person for an offence under subsection (1) … it is a defence that he had a reasonable excuse … for having control of or managing the house in the circumstances mentioned in subsection (1) …”.[34]The Applicant states that the 1 year licence would have reverted to being a 5 year licence if it had not been for the service charge dispute with LBWF who, in his submission, delayed investigating his concerns seriously for 2 years. He also states that he is a good landlord who has looked after his tenants and the Property very well over the years and that he believed that whilst he was in communication with LBWF and with the Respondent’s licensing team a decision about how much service charge he owed would be made before the expiry of his 1 year licence. He would then have paid off the arrears and been offered another 5 year licence.[35]We do not, though, accept the Applicant’s “reasonable excuse” defence. He came across well at the hearing and we accept his assurances that he was a good landlord and that he looked after the Property and had the appropriate certificates, etc. We also accept that he was genuinely frustrated and upset about his long-running service charge dispute with LBWF, and that he was vindicated to some extent by the reimbursement of about £500, and that LBWF may have been unhelpful at times in their dealings with him. We also note a reference in the hearing bundle to computer glitches. It is possible that LBWF and/or the Respondent as local housing authority need to take some responsibility for the failure to resolve the dispute that caused the Respondent only to grant a 1 year licence and then remained unresolved until well after the expiry of that licence.[36]However, none of the above amounts to a reasonable excuse. The Applicant had a financial incentive to let out the Property to a new tenant, but nobody forced him to do so. The simple fact is that the Applicant let out the Property in circumstances where he knew that the Property was unlicensed and knew that it could not be let out without a licence.[37]If he believed that it was unreasonable for the Respondent only to grant him a 1 year licence, the legal remedy open to him was to appeal to the FTT against the licence conditions on receipt of the 1 year licence. He did not do this.[38]In conclusion, we do not accept that the Applicant has a reasonable excuse defence, and we accept that the Respondent had the right to levy a financial penalty. The amount of the penalty[39]In relation to the amount of the penalty, we have considered the Respondent’s justification for the way in which it has calculated the penalty and we have also considered the Applicant’s general objections.[40]The starting point of £7,500 accurately reflects the Respondent’s enforcement policy, and it is not for the tribunal in these proceedings to question the reasonableness of the enforcement policy itself. As discussed at the hearing, £7,500 is a starting point rather than a minimum amount, and therefore in principle it can be reduced from this amount if there are relevant mitigating factors. We will come back to this point later.[41]Turning next to the addition of £2,000 for the aggravating factor of the Applicant having been aware of the need to license the Property, the Respondent was entitled to treat this as an aggravating factor and to increase the penalty as a result. The enforcement policy states that “If a single aggravating factor is identified, the indicative minimum tariff will normally be increased by up to, but not exceeding £2000”. This aspect of the policy is somewhat light on detail as it gives no steer as to how to weigh up what level of increase (up to the maximum of £2,000) should be attracted by any particular aggravating factor. However, this is not an application for judicial review of the enforcement policy itself, which in any event is outside the FTT’s jurisdiction, and therefore a decision has to be made on the basis of the enforcement policy as it is, not on the basis of how it might be improved.[42]The Respondent has added £2,000, which is the maximum amount permitted under its enforcement policy, and the Respondent has not really done anything to demonstrate that this particular aggravating factor is amongst the most serious types of aggravating factor. However, in our view it is self-evident – in the context of a failure to license – that possessing clear knowledge that a licence was required and nevertheless letting the Property without a licence – is a serious aggravating factor. In the circumstances, it would not be appropriate for the tribunal to pluck a slightly different figure out of the air and to substitute it for the Respondent’s own figure. Therefore, the uplift of £2,000 is accepted.[43]The reduction of the overall penalty by 20% to reflect the fact that the Applicant applied for a licence after the Respondent issued the notice of intention is consistent with the enforcement policy and is therefore also accepted.[44]This then leaves the question as to whether there are any other relevant mitigating factors. As noted in cross-examination, we are concerned that the basis for the Respondent’s decision only to grant a 1 year licence may not have been very solid. Whilst it must be stressed that the present appeal was not an appeal against the granting of the 1 year licence and therefore that the Respondent has not had an opportunity to make detailed written and/or oral submissions on this point, there is reason to question whether the Respondent properly satisfied itself that the Applicant was wholly or largely at fault in relation to the service charge arrears issue such that it was able to conclude that he should not be granted a 5 year licence. And although it is true that the Applicant is currently in service charge arrears, the evidence indicates that he is in the process of paying off the arrears (albeit not as quickly as LBWF would like), and the mere fact of there being arrears does not by itself demonstrate that he should only have been granted a 1 year licence.[45]However, as noted above, if the decision only to grant a 1 year licence was indeed vulnerable to challenge, the proper approach would have been for the Applicant to appeal that decision to the FTT at the relevant time. Instead, the Applicant simply decided to let out the Property in the knowledge that he did not at the time have a licence and in the knowledge that one was required. This cannot therefore properly serve as a mitigating factor. It is also worth noting that the Applicant has been letting the Property out at a rent of £1,200 per month since February 2024 without the tenant having the benefit of the protections afforded by their landlord having – and being bound by the conditions contained in – the requisite licence.[46]The fact that the Property was vacant for a period is not a mitigating factor, especially as the evidence shows that he has been letting the Property out at a rent of £1,200 per month since February 2024 and is still doing so. There are no other mitigating factors of which we are aware, and the Applicant has not raised any others. Additional comments[47]Whilst there is no legal basis for cancelling or varying the final notice, we do nevertheless wish to place on record the fact that the Applicant came across well at the hearing. We accept, on the basis of his uncontested evidence on these points, that he looks after his tenants, looks after the Property and has in place all relevant certificates. There is, in short, no evidence that he is a bad landlord. Conclusion[48]Pursuant to Schedule 13A to the 2004 Act we confirm the final notice, and the financial penalty therefore remains at £7,600. Cost applications[49]There were no cost applications. Name: Judge P Korn Date: 4 June 2026 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). Appendix Housing Act 2004 95 Offences in relation to licensing of HMOs(1) A person commits an offence if he is a person having control of or managing a house which is required to be licensed under this Part … but is not so licensed. (4) In proceedings against a person for an offence under subsection (1) … it is a defence that he had a reasonable excuse … for having control of or managing the house in the circumstances mentioned in subsection (1) … . 249A Financial penalties for certain housing offences in England (1) The local housing authority may impose a financial penalty on a person if satisfied, beyond reasonable doubt, that the person's conduct amounts to a relevant housing offence in respect of premises in England.(2) In this section “relevant housing offence” means an offence under— (a) section 30 (failure to comply with improvement notice), (b) section 72 (licensing of HMOs), (c) section 95 (licensing of houses under Part 3), (d) section 139(7) (failure to comply with overcrowding notice), or (e) section 234 (management regulations in respect of HMOs).(3) Only one financial penalty under this section may be imposed on a person in respect of the same conduct.(4) The amount of a financial penalty imposed under this section is to be determined by the local housing authority, but must not be more than £30,000.(5) The local housing authority may not impose a financial penalty in respect of any conduct amounting to a relevant housing offence if— (a) the person has been convicted of the offence in respect of that conduct, or (b) criminal proceedings for the offence have been instituted against the person in respect of the conduct and the proceedings have not been concluded.(6) Schedule 13A deals with— (a) the procedure for imposing financial penalties, (b) appeals against financial penalties, (c) enforcement of financial penalties, and (d) guidance in respect of financial penalties.(7) The Secretary of State may by regulations make provision about how local housing authorities are to deal with financial penalties recovered.(8) The Secretary of State may by regulations amend the amount specified in subsection (4) to reflect changes in the value of money.(9) For the purposes of this section a person's conduct includes a failure to act. SCHEDULE 13A FINANCIAL PENALTIES UNDER SECTION 249A Appeals 6 If the authority decides to impose a financial penalty on [a] person, it must give the person a notice (a “final notice”) imposing that penalty. 10 (1) A person to whom a final notice is given may appeal to the First-tier Tribunal against – (a) the decision to impose the penalty, or (b) the amount of the penalty. (3) An appeal under this paragraph – (a) is to be a re-hearing of the local authority’s decision, but (b) may be determined having regard to matters of which the authority was unaware. (4) On an appeal under this paragraph the First-tier Tribunal may confirm, vary or cancel the final notice.