10, Westbourne Avenue, Shipcote, Gateshead NE8 4NP MAN/00CH/HNA/2020/0029
REASONS
[25]“Person having control”/”person managing” 25.1 The Tribunal accepted the evidence that Mr. & Mrs. Pinnick were joint owners/landlord of the Property. Having regard to the evidence regarding the Respondent’s communications with Mrs. Pinnick, Mr. Pinnick’s evidence regarding Mrs. Pinnick’s limited involvement in the management of the Property and that the licence was applied for, and issued in Mr.Pinnick’s sole name, the Tribunal considered that it was appropriate, in all the circumstances, to vary the Final Notice from joint names into the sole name of Mr. Pinnick. All further references to “the Applicant” are to Mr.Pinnick alone.[26]“Relevant housing offence” 26.1 The Tribunal was satisfied, beyond reasonable doubt, that the evidence of 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. In this respect, the Tribunal noted the Applicant’s acknowledgment in his oral evidence that an offence had been committed by his failure to obtain a licence for the Property.[27]Procedural requirements 27.1 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 s95(1) 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 (to which the Applicant had responded by making representations).[28]Application of the Policy28.1 Culpability and harm and severity of offence: having regard to the Policy, the Tribunal agreed with the Respondent’s determinations as follows:(1) culpability: that the Applicant’s culpability was properly determined as level 3 (reckless);(2) the harm and severity of the offence: the Tribunal noted the Respondent’s submissions regarding the need to take into account potential, as well as actual, harm and that a Category 1 hazard had been identified at the Property. Balanced against this, the Tribunal noted the Respondent’s acknowledgment that there was no evidence of direct harm and that the required repairs to the heating system at the Property had ultimately been undertaken by the Applicant. On that basis, the Tribunal agreed with the Respondent’s determination that harm and severity of offence should be categorised as low;(3) the Tribunal therefore determines that, on the basis of the penalty bands matrix in the Policy, the appropriate range for the financial penalty is £3000-5000, with a “starting point” of £4000.28.2 Financial benefit: (1) the Tribunal accepted the Respondent’s interpretation of “financial benefit” as including rent received during the period of commission of the offence; (2) the Tribunal also accepted that the Policy did not impose any obligation on the Respondent to undertake a full financial investigation in circumstances where it was considered disproportionate to do so, and that this was such a case; (3) the Tribunal noted that it had been open to the Applicant to provide such information to the Tribunal as he considered relevant regarding his financial circumstances but that the only documentary evidence provided was copies of tax returns for himself and Mrs. Pinnick for the financial years ended 5 April 2018, 5 April 2019 and 5 April 2020. The Tribunal accepted the Respondent’s objection that this only provided information relating to income, and not assets and was therefore of limited value in establishing for the Tribunal a balanced assessment of their financial position;[4]further, the Tribunal noted that, whilst the tax returns showed taxable profit from property of £10374 for each of Mr. & Mrs. Pinnick for the financial year ended 5 April 2020 (which may have been what the Applicant was referring to when he stated in his oral evidence that the joint family income was £20000), no evidence was provided as to how this was reconcilable with total gross income from rent and income from property of £29393 for each of Mr. and Mrs Pinnick for the same period, the Applicant’s gross annual business turnover of £80779, and other earned income of £2850. Again, this limited the evidential value to the Tribunal of the tax returns in establishing Mr. & Mrs. Pinnick’s financial position;[5]in the circumstances, the Tribunal was satisfied that there was insufficient evidence regarding the Applicant’s financial circumstances upon which any adjustment to the financial penalty should be made;[6]the Tribunal noted the Respondent’s acknowledgment that it had incorrectly calculated the rent at £92.05 per week instead of £92.30 per week;[7]the Tribunal did not agree with the Respondent’s determination of the relevant periods to be taken into account in calculating the amount of the financial benefit. They noted the Respondent’s concession that the calculation should not be based on the actual period as the significant delays in processing the 1st licence application were the Respondent’s responsibility. Accepting that in selecting a period other than the actual period in question necessarily involves an element of arbitrariness, the Tribunal did not consider it appropriate for the Respondent to select a period of 12 weeks as this was the maximum “target” period for its processing of a licence application. On balance, the Tribunal considered that a period of 6 weeks was a more reasonable and therefore a more appropriate selection in the circumstances;[8]the Tribunal therefore determined that the relevant periods to be taken into account were as follows:(a) 30 October 2018 – 1 March 2019: 17.5 weeks(b) Nominal period of 6 weeks from 1 March 2019(c) 24 July 2019 – 9 November 2019: 15.5 weeks; Making a total of [39] weeks at £92.30 per week = £3599.70. 28.3 Mitigating and aggravating factors: (1) mitigating factors: the Tribunal agreed with the Respondent’s adjustment to the “starting point” to take into account 3 mitigating factors, namely, 1st financial penalty notice, receipt of a licence application prior to the Final Notice and the impact upon the Applicant of his father’s illness and subsequent death; (2) with regard to the additional medical evidence provided by the Applicant, the Tribunal recognised why the Applicant may have been reluctant to disclose this sensitive information at an earlier stage in the proceedings. It was satisfied that the adjustments already made ( i.e. reduction of the level of culpability and inclusion as a mitigating factor) took full account of the impact on the Applicant of his father’s illness and subsequent death, and the knowledge that he had received medical assistance did not warrant any further adjustment; (3) aggravating factors: in accordance with paragraph 10(3)(b) of Schedule 13A of the 2004 Act, the Tribunal determined that it was appropriate to have regard to the issue of 2 further financial penalty notices against the Applicant, making a total of 10 aggravating factors to be taken into account; (4) in accordance with the Policy, the net effect of the mitigating and aggravating factors is to increase the financial penalty by £800. 28.4 Amount of the financial penalty: The Tribunal therefore determines the calculation of the financial penalty to be as follows: £ Financial penalty “starting point”: 4000.00 Rent/financial benefit: 3599.70 Mitigating/aggravating factors net increase: 800.00 Costs: 300.00 Total financial penalty: 8699.70 28.5 The Tribunal therefore varied the Final Notice by reducing the financial penalty from £8942.25 to £8699.70 (in each case, including £300 in respect of costs). Tribunal Judge C Wood 25 August 2021