37, Saltwell Street, Gateshead NE8 4QX MAN/00CH/HNA/2019/0094
REASONS
[29]The Tribunal was satisfied that the Applicant’s failure to obtain a licence was conduct amounting to an offence under s95(1) of the Act, which constituted a “relevant housing offence” for the purposes of s249A of the Act, permitting the imposition of a financial penalty.[30]The Tribunal was satisfied that, in respect of the notice of intent and the final notice, the Respondent had complied with the following procedural requirements as required under Schedule 13A to the Act:30.1 the offence under s95(1) of the Act was continuing as at the date of the notice of intent, namely, 25 January 2019;30.2 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,30.3 the notice of intent contained information about the right to make representations (to which the Applicant had responded by making the Representations).[31]In determining to what extent (if any) the procedural defect regarding the payment period in the Final Notice should be taken into account by the Tribunal, the Tribunal is bound by the Upper Tribunal decision in London Borough of Waltham Forest v Younis [2019] UKUT 0362.[32]The Tribunal is satisfied that the Applicant was not prejudiced by the statement in the Final Notice regarding the payment period because he had no intention of making any payment. This is evidenced in the email from the Applicant dated 20 August 2019 in which he notified the Respondent of his intention to appeal and of the making of the appeal on 5 September 2019.[33]Further, it is clear from the Applicant’s submission regarding the payment period in his submissions dated 6 December 2019, (see paragraph 28 above), his complaint was based on his misunderstanding that he was required to make payment on the 28th day of the calendar month in which the Final Notice was served (ie on 28 August 2019) rather than, as stated, within 28 days of its date.[34]Having regard to the Policy, the Tribunal agreed with the Respondent’s determinations as follows:34.1 that the Applicant’s culpability was deliberate: the Tribunal was satisfied that the Applicant had been given numerous opportunities to make an application for a licence in advance of 30 April 2018 but had failed to do so. The Tribunal was unimpressed by the Applicant’s reasons (as set out in the Representations) for not doing so. It appears to the Tribunal that the Applicant has failed to appreciate, or has wilfully ignored, that the legal obligation for obtaining a licence for the Property, in his name or, where not appropriate, in the name of another appropriate person remained with him at all times, and that any assistance and/or advice given by the Respondent to him did not remove or discharge that obligation. Specifically, the obligation for understanding the legal effect of his previous convictions and his bankruptcy was that of the Applicant;34.2 the harm and severity of the offence: no evidence was presented to the Tribunal regarding any specific harm caused to tenants/ occupants of the Property by reason of the Applicant’s failure to obtain a licence. On that basis, the Tribunal accepts the Respondent’s determination that harm and severity of offence should be considered to be low;34.3 the Tribunal agrees that, on the basis of the penalty bands matrix in the Policy, the appropriate range for the financial penalty is £4000-6000;34.4 the Tribunal noted that the penalty level is “automatically configured” by reference to the determined culpability and harm/severity of offence bands. This was determined to be a “moderate” Penalty Level 1 with a “band width” of £0-10,000;34.5 the Tribunal also agreed with the Respondent’s decision to increase the penalty by £1000 for aggravating factors, £1676.94 in respect of financial benefit gained during offence period and £100 in respect of costs.[36]The Tribunal therefore confirmed the final notice imposing a financial penalty of £6776.94, payment to be made within 28 days from the date of this Decision. C Wood Tribunal Judge 1 July 2020