330, Great Cheetham Street East, Salford M7 4UJ MAN/00BN/HNA/2020/0067-AND-MAN/00BN/HNA/2021/0049-AND-0050
REASONS
[20]Section 251 of the 2004 Act20.1 Section 251 (1) of the 2004 Act provides- “Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of..a director…he as well as the body corporate commits the offence and is liable to be proceeded against and punished accordingly”.20.2 The Tribunal was satisfied that there was no evidence before it of any consent, connivance or neglect on the part of Mr Hanif Mohammed in the commission of the offence by ZPL.20.3 Pursuant to paragraph 10(4) of Schedule 13A to the Act, the Tribunal determined it appropriate to cancel the Final Notice imposed on Mr Mohammed.20.4 For the reasons set out in paragraph 22.2(3) below, the Tribunal was satisfied that there was evidence of consent, connivance and/or neglect on the part of Mr Hassan Shakoor in the commission of the offence by ZPL, and that the proceedings/punishment by way of a financial penalty was appropriate.[21]“Relevant housing offence”21.1 The Tribunal was satisfied, beyond reasonable doubt, that the evidence of breaches of the Regulations as identified at the 1st inspection on 12 February 2020, was conduct amounting to an offence under s234 of the Act, a “relevant housing offence” for the purposes of s249A of the Act, permitting the imposition of a financial penalty.21.2 In this respect, the Tribunal noted the Applicants’ acceptance, in their oral evidence at the hearing, that defects identified at the inspection of the Property on 12 February 2020 constituted breaches of the Regulations as set out in the Final Notices.[22]Procedural requirements 22.1 The Tribunal was satisfied that, in respect of the Notice of Intent and the Final Notice, the Respondent had complied with the procedural requirements as required under Schedule 13A to the Act, as follows:(1) the offence under s234 of the Act was continuing as at the date of the Notice of Intent;(2) the Notice of Intent and the Final Notice contained the information as required under paragraphs 3 and 8 of Schedule 13A to the Act; and,(3) the Notice of Intent contained information about the right to make representations.[23]Application of the Policy22.1 Culpability and harm and severity of offence: having regard to the Policy, the Tribunal agreed with the Respondent’s determinations as follows:(1) high harm: the Tribunal was satisfied that: (i) having regard to the design/layout of the Property, the number of occupants and the manner of occupation, the defects identified at the Property at the inspection on 12 February 2020 relating to fire safety and prevention measures posed a serious and substantial risk of harm to the occupants; (ii) in the absence of actual harm, it was appropriate to take into account the likelihood of harm and the gravity of the harm that could have resulted; (iii) a determination of high harm was appropriate in the circumstances.(2) high culpability: the Tribunal noted the following: (i) the medical evidence produced to the Tribunal by Mr Abdul Shakoor did not support the statements by him or his son, Mr Hassan Shakoor, regarding the cause and/or severity of the illness, post-discharge treatment or period of convalescence; (ii) further, there was no evidence produced to the Tribunal of any subsequent relapse, as alleged; (iii) in particular, but without limitation, there was no evidence to support the claim that Mr Abdul Shakoor was so incapacitated by the effects of his illness that, after 16 January 2020, he was unable to visit the Property (although it was noted that he was on crutches), or, in the alternative, to make alternative arrangements to ensure that the management of the Property (including, the continuation of the repairs said to have been started in or about November, access to necessary finance etc) was properly delegated to others; (iv) the Tribunal concluded that the effect of Mr Abdul Shakoor’s illness on his ability to manage and/or delegate the management of the Property from 16 January 2020 had been exaggerated; (iii) the impact of covid-19 restrictions on the ability of ZPL, Mr Abdul Shakoor and/or Mr Hassan Shakoor to effectively manage the Property had also been exaggerated as the commission of the offence, and the inspections on 12 and 24 February 2020 all pre-dated the imposition of the national lockdown on 23 March 2020; (iv) there was evidence of serious or systemic failings in the management of the Property including, without limitation: (a) the failure to address numerous defects in the doors/frames/closers etc, as evidenced by the photographic evidence obtained at the inspection on 12 February 2020, all of which impacted the fire safety/prevention measures at the Property and all of which should have been obvious to the Applicants at their weekly inspections; (b) the absence of any satisfactory explanation as to why it had taken over 2 days to get an engineer to repair the fire alarm; (c) the absence of any satisfactory explanation for the provision of a key to a tenant(s) enabling the fire alarm system to be disabled.22.2 Other relevant issues (1) There was no documentary evidence to support Mr Hassan Shakoor’s claims that he had been forced to give up alternative employment in or about March 2020 to assist his father in the management of the Property. (2) Mr Hassan Shakoor’s claim at the hearing that it was his brother, Mr Hamza Shakoor, who attended the inspection on 24 February 2020 was, at its lowest, surprising and raised the obvious question why Mr Shakoor had not sought rectification of this mistake at an earlier point in the proceedings.(3) Having regard to, in particular, but without limitation, Mr Hassan Shakoor’s responses to the written PACE “interview”, and the repeated use (without explanation) of the pronoun “we”, the Tribunal was satisfied that there was evidence of his active involvement in the management of the Property prior to March 2020.(4) Having regard to the responses of Mr Tahar Sheikibani during his PACE interview, the Tribunal was satisfied that there was evidence of day-to-day management of the Property having been undertaken by persons other than Mr Abdul Shakoor, including Mr Sheikibani, prior to March 2020, with control for major decisions e.g. undertaking of significant repairs/maintenance, being retained by Mr Abdul Shakoor.(5) There was no evidence before the Tribunal that the Respondent was seeking to make an example of Mr Abdul Shakoor/ZPL, as claimed by Mr Abdul Shakoor, but the Tribunal noted that the deterrent value to prevent others from committing similar offences was a factor for consideration in determining the amount of a financial penalty in accordance with the Policy.22.3 Financial benefit: (1) The Tribunal noted that it had been open to the Applicants to provide such information to the Tribunal as considered relevant regarding ZPL/their financial circumstances but that they had not done so; (2) in particular, but without limitation, the Applicants had not produced any documentary evidence to refute the Respondent’s evidence regarding the estimated annual rental income from the Property or the sale price of the Property; (3) there was no documentary evidence before the Tribunal of any financial hardship/inability to pay the financial penalty on the part of either of ZPL and/or Mr Hassan Shakoor; (4) in the circumstances, the Tribunal was satisfied that there was insufficient evidence regarding ZPL and/or Mr Hassan Shakoor’s financial circumstances to justify any adjustment to the amount of the financial penalty.22.4 Mitigating factors: (1) The Tribunal determined that it was appropriate to take into account as a mitigating factor in respect of both ZPL and Mr Hassan Shakoor the fact that remedial works had been undertaken at the Property and reduced the financial penalty in each case by £1000 accordingly. Tribunal Judge C Wood 3 November 2021