69 Albion Street, Burnley, BB11 4QD: MAN/30UD/HNA/2019/0051 MAN/30UD/HNA/2019/0051
DECISION
[32]The Tribunal has jurisdiction to hear an appeal against a final notice given under paragraph 10 of Schedule 13A to the Act.[33]The appeal may be made against the decision to impose the penalty, or the amount of the penalty.[34]The appeal is by way of a re-hearing of the local housing authority’s decision, but may be determined by the Tribunal having regard to matters of which the authority was unaware. The Tribunal may confirm, vary or cancel the final notice. However, the Tribunal may not vary a final notice so as to make it impose a financial penalty of more than the local housing authority could have imposed.[35]The four questions for the Tribunal to determine in the light of this Appeal are as follows:[36]Firstly, whether the offence has been committed, and the Respondent has followed the statutory procedure in imposing the financial penalty. The Tribunal was satisfied on the evidence that there was a breach of s95 of the Act, and that the Respondent had served notice of intent and a final notice in accordance with S249A of the Act.[37]Secondly, whether the Applicant was at the Relevant Period the person managing the Property pursuant to s263(3) of the Act. S263(3) reads as follows: s263(3) In this Act “person managing” means, in relation to premises, the person who, being an owner or lessee of the premises—(a) receives (whether directly or through an agent or trustee) rents or other payments from— (i) in the case of a house in multiple occupation, persons who are in occupation as tenants or licensees of parts of the premises; and (ii) in the case of a house to which Part 3 applies (see section 79(2)), persons who are in occupation as tenants or licensees of parts of the premises, or of the whole of the premises; or(b) would so receive those rents or other payments but for having entered into an arrangement (whether in pursuance of a court order or otherwise) with another person who is not an owner or lessee of the premises by virtue of which that other person receives the rents or other payments; and includes, where those rents or other payments are received through another person as agent or trustee, that other person.[38]It seems clear from the documentation provided that the Applicant was at all material times the person managing the property, both before, and after September 2018. Notwithstanding a contract for sale at a non-determinable date in the future, he remained the legal owner. He remained entitled to receive the rents, and indeed the Power of Attorney made it clear that the rents were still considered at least partially his. In any event the effect of s263(3)(b) would still classify him as the owner/manager despite an agreement with Mr. Ravindrakumaran which enabled the latter to receive the rents. In his application, the Applicant positively asserted that the licence had been taken out of his name. In fact, the Applicant had never had a licence for the Property in his name (pages 43 to 47 of the bundle).[39]Thirdly, whether the Respondent did not follow correct procedure by not notifying the Applicant of his obligation to licence the Property. The Tribunal rejects the Applicant’s assertion that the Respondent should have told him to apply for a licence. As the owner of a number of properties in the selective licensing area he was well aware of his obligations. The Respondent had told him on the 1st August 2017 that he remained under an obligation to obtain a licence in relation to 37 Reed Street Burnley even though he had a third-party manager.[40]Fourthly, the Tribunal must further consider whether the financial penalty imposed by the Respondent is appropriate, in the light of guidance from the DCLG and the Respondent’s own policy and matrix.[41]The Tribunal considered that in the light of the issues found at the Property it would have been open to the Respondent to consider harm to tenants and there was perhaps more than neglect in terms of the Respondent having his own application for a licence, and that of his agent rejected over a significant period of time. However the Tribunal is also mindful of the amount of the financial penalty being in line with the annual rent and consequently the amount is considered a suitable deterrent to the Applicant and to others, and the Tribunal will not interfere with the penalty imposed, which will remain at £5,000. John Murray Judge 28 October 2019