Oliver Barke & Anor v Fenland District Council [2025] UKFTT 810 (GRC)

[2025] UKFTT 00810 (GRC)Case Reference: FT/SL/2024/0011,0012
First-tier Tribunal
General Regulatory Chamber
Date 04 July 2025
Kings Lynn Magistrates Court
20 June 2025
Before
JUDGE HUGHES
Between
oliver barke, HEATHER SAYERAppellant– and –
Between
fenland district COUNCIlRespondentAppearancesAppellants: in person for in personRespondent: Andrew BrownDecision: The appeal is Dismissed, the penalties are varied giving a total sum due of £2500REASONS
[1]The extract from the Proprietorship Register of the Land Registry shows that the Appellants bought a terraced house 37 Alexandra Rd on 31 March 2016 for £91,000. The property was divided into two flats which had tenants who have remained there to this day. In evidence Mr Barke stated that they bought the property from Maxey Grounds who have continued to manage the property as their agents.[2]Energy Performance Certificates (EPC) have been in existence since 2007. The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 are the statutory framework for the application of the energy efficiency regime to private rented property such as 37/37a Alexandra Rd. These provide a: Prohibition on letting of sub-standard property 23.—(1) A landlord of a sub-standard domestic PR property must not let the property unless regulation 25, or one or more of the exemptions in Chapter 4, applies. (2) For the purposes of paragraph (1), “let the property” means—(a) on or after 1st April 2018, grant a new tenancy which falls within section 42(1)(a) of the Act, or let the property on such a tenancy as a result of an extension or renewal of an existing tenancy, or(b) on after 1st April 2020, continue to let the property on such a tenancy.[3]For these purposes sub-standard means that the indicator is below the minimum level of energy efficiency which is level E.[4]The EPCs prepared by a Mr Deakin for the ground floor flat 37 from August 2010 show it assessed as having an Energy Efficiency Rating of 34 – which is categorised as F and for the upper flat 37a the equivalent assessment issued in September 2010 found an EER of 22, also an F.[5]New assessments valid for 10 years prepared on 4 and 9 January 2021 by Mr Callaghan are consistent with these findings and contain the warning:
“You may not be able to let this property This property has an energy rating of F. It cannot be let unless an exemption has been registered.”
[6]Compliance notices was served by Fenland Council on 29 July 2022. On 31 July 2022 Mr Barke sought to obtain an exemption from the prohibition on letting the property by uploading an exemption summary for 37 stating that “several assertions from the EPC report were assumptions. The longstanding residents cannot be evicted to carry out major internal improvements to the structure. These will be done when the tenant moves on. The house is in a protected Georgian area and cannot have external cladding installed.”[7]On 2 August 2022 the Council revoked the previous notices and re-issued them with the correct names. The notices required the Appellants to provide relevant documentary information by 4 September 2022; all EPCs, tenancy agreements and any qualifying assessments relating to the properties. On 30 August an exemption summary for 37a was filed detailing rendering sealing pointing roof repairs 2019 and “loft insulation 2016”.[8]On 22 February 2023 Fenland District Council served penalty notices in respect of the properties. The notices recorded that the properties had been privately rented since 2011, that no exemptions on the PRS Exemption Register had been registered from 1 January 2020 to 31 July 2022, and those only after the Council had requested to see the EPC on 29 July 2022. The exemptions registration was incomplete and unevidenced, all the possible work had not been carried out, there was no report by a qualified person and claims made were unevidenced. The notices required steps to be taken and imposed penalties in respect of both properties.[9]The notices relied on the Council’s enforcement policies, acknowledged that these were the first time the Appellants had been found in breach and applied discounts from the maximum sanctions for letting sub-standard properties and supplying false or misleading information a penalty of £3000 for the letting and £750 for the information breach was reduced to a total of £2500 in respect of each property and a publication of the breaches, giving a total penalty of £5000.[10]On 9 March 2023 the agents, Maxey Grounds, wrote to the Appellants setting out the chronology of its involvement, that it had written to all its landlords in advance of 1 April 2020 reminding them of the need to have an EPC rating of E or above on that date. Following the disruption of Covid it had written to the Appellants on 18 November 2020 reminding them of the need to resolve the issue, the Appellants had responded promptly and the new EPCs were obtained in January 2021.[11]The Appellants sought a review of the notices and on 12 May 2023 the relevant assistant director of the Council responded to their application and reduced the total penalty to £4,000. In his application for review Mr Barke explained the steps which he had started to take, that they had not been aware of the issue, the tenants were content, and that they had thought Maxey’s would deal with everything. He stated (bundle page 211):
“I have made my own investigations and find both the old EPCs and the current ones total meaningless. These are the basis of Mr Brown’s fines. The fine period covers 5 months of the old EPCs and twenty-five months of the new ones. Both these flats are at least E and have been since 2019, which makes these fines invalid. I enclose my proof. The original 2010 EPC was in force when we bought the house in 2016. Our managers let the flats with these EPC’s our carbon footprint improvements include new sliding sash double glazed front windows in 2019. And a new airtight front door. So by April 2020 the whole house was double-glazed. My trial holes through the wall dry linings show double plasterboard and a two inch airgap on all walls, even party walls. Both flat roofs show minimum 2inch fibre insulation. … To challenge an EPC I was told to contact the Assessor himself this I did and I enclose his energy report…. Based on my findings you will find an immediate increase to E42 which I think is quite normal for a property like this. … For the duration time of the fines nothing has changed but small improvements. The top flat 37a External walls are 7% drylined Roofs described as very poor assumed uninsulated are in fact all insulated The current EPCs contain many incorrect assumptions The flat roof has 4-6 inch fibre The pitched roof has foam boards between joists … With these observations I am sure both flats are well into E”
The top flat 37a External walls are 7% drylined Roofs described as very poor assumed uninsulated are in fact all insulated The current EPCs contain many incorrect assumptions The flat roof has 4-6 inch fibre The pitched roof has foam boards between joists With these observations I am sure both flats are well into E”

The pitched roof has foam boards between joists

[12]The council noted that they had self-certified the exemptions but this was after a long period in breach of the regulations and what had been supplied did not meet the requirements of the regulatory framework. It was the landlord’s responsibility to commission and file a compliant EPC. The Council further responded to the request for review stating: “enforcement was proportionate to the breach found in that you were aware from the documentation received to you that the property was not fit for letting without taking action and you did not do so until alerted by the PHSO. The PHSO acted in accordance with the Housing Enforcement Policy ratified by members and following consultation. “[13]On May 5 2023 Mr Barke submitted an appeal against the penalty notices. He set out his grounds of appeal as: “Victimisation I believe by the Council. Covid intervened in all departments our agents [Maxey] Grounds are involved in lapses of information we are being fined maximum (now slightly reduced) for letting “F” rated flats. These flats have been occupied for many years by contented tenants. Recent EPCs renewed with information supplied by myself show that both flats are and have been since our ownership a grade E for EPCs. “[14]In oral argument Mr Barke stated that the Council had asked him “why do you go for exemptions if you knew it was “E”. he explained that “I didn’t know then”.[15]In responding Mr Brown for the Council drew attention to a letter from the Assessor, Mr Callaghan to Mr Barke of 13 June 2024:
“37 Alexandra Rd. PE13 1HQ As you will see from the previous reports, the insulation is assumed to be as built, this is when there is no visual or documentation to prove otherwise. Following the assessment carried out by myself in May 2023 I re-issued an EPC showing the flat roof had been insulated I could make the change to the report as viewing areas had been made by the landlord into the void of the flat ceilings where I could see the insulation type and depth used. The ability to show actual insulation levels rather than assumptions meant the property was uprated from an F rating to an E rating. 37a Alexandra Road PE13 1HQ There were no changes recorded on this property but the rating changed from an F rating to an E rating due to the background figures in the methodology i.e. electricity costs.”
[16]The Appellants submitted a further letter dated June 2025 from the Domestic Energy Assessor whom they had instructed (Mr Callaghan) : “I am writing this letter concerning the assessments of 37 &37a Alexandra Rd. PE13 1HQ. The assessment procedure requires the assessor to make assumptions if no evidence is available at the time of the assessment. This led to the assessment of the flats being factually incorrect but in line with the evidence collection procedure. Following the initial assessment a meeting was held at the property with the owner/landlord and evidence was collected to show the level of insulation. A hole was drilled in the ceiling to prove existence of insulation. There was a delay in obtaining a new certificate following the expiration of the original EPC due to COVID restrictions, this also played a part in the re-visit to the property. Although the EPC issued in Jan 2021 was not incorrect following procedures it did make assumptions which were incorrect. The follow up certificate did correct these assumptions with physical evidence and a new EPC was lodged. I trust the above goes some way to explaining the circumstances and procedures relating to the evidence collection and assessment of the flats. Regards AP Callaghan DEA V241-001 Regards AP Callaghan DEA V241-001

Legal Framework

[17]The Energy Act 2011 introduced a legal framework under which it would be unlawful to rent out housing accommodation which did not meet a specified energy efficiency. The starting date for this was finally set for 1 April 2020. The local authority, in this case Fenland District Council, is responsible under regulation 34 for enforcement of the regulatory arrangements by the issuing of notices (for example the compliance notices of 2 August 2022) and other administrative steps.[18]The Penalty Notices under appeal were issued on 22 February 2023 by reference to the period 1 April 2020 to 4 September 2022 for breaches of regulation 23 (continuing to let unfit property) and with respect to 30 September 2022 for regulation 36(2) The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 provide[19]A property is sub-standard if it falls within regulation 22: Sub-standard property 22. For the purposes of this Part— (a)a domestic PR property, or a non-domestic PR property, is “sub-standard” where the valid energy performance certificate expresses the energy performance indicator of the property as being below the minimum level of energy efficiency, (b)“minimum level of energy efficiency”, in relation to a domestic PR property and a non-domestic PR property, means an energy performance indicator of band E, (c)an energy performance certificate for a property is “valid” where— (i)it was entered on the register required to be maintained by regulation 27(1) of the EPB Regulations no more than 10 years before the date on which it is relied on for the purposes of these Regulations, and (ii)no other energy performance certificate for the property has since been entered on that register.[20]In order to rely on exemptions a landlord must comply with the provisions of regulation 36(2) which provides: (2) In any case where a landlord of a sub-standard domestic PR property, or a sub-standard non-domestic PR property, wishes to rely on one or more of the following regulations, the landlord must register the information set out in the Schedule on the PRS Exemptions Register— …..[21]The penalties which may be imposed are prescribed by regulation 40: Breaches in relation to domestic PR property 40.—(1) The penalties set out in this regulation apply where L is, or was, the landlord of a domestic PR property. (2) Where L has breached regulation 23 and, at the time the penalty notice is served has, or had, been in breach for less than three months, the penalties are— (a)a financial penalty not exceeding £2,000, and (b)the publication penalty. (3) Where L has breached regulation 23 and, at the time the penalty notice is served has, or had, been in breach for three months or more, the penalties are— (a)a financial penalty not exceeding £4,000, and (b)the publication penalty. (4) Where L has registered false or misleading information under regulation 36(2), the penalties are— (a)a financial penalty not exceeding £1,000, and (b)the publication penalty. (5) Where L has failed to comply with a compliance notice in breach of regulation 37(4)(a), the penalties are— (a)a financial penalty not exceeding £2,000, and (b)the publication penalty. (6) Where an enforcement authority imposes financial penalties on L in relation to a breach of regulation 23 in respect of a domestic PR property— (a)under paragraph (2) or (3), and (b)under one or both of paragraphs (4) and (5), the total of the financial penalties imposed on L must be no more than £5,000.

Consideration

[22]The Appellant’s case, put at its simplest, is that the EPCs were wrong, the premises were not unfit and therefore the notices should not have been issued. However matters are not as simple as Mr Barke and his partner would wish. They, as landlord, are responsible for obtaining a valid EPC. On purchasing the property they acquired with the property the certificates produced by Mr Deakin which showed the properties as “F”. At the prompting of their agent they obtained new ones at the start of 2021 which, based on the methodology laid down, continued to show F. Despite the warning they received (for example on the EPC itself) they did not take effective action and the certificates rendering it unlawful to let out the property (from the start of the new legislative framework on 1 April 2020) remained in force. Attempts were made to register exemptions from the prohibition, these were not successful because they did not comply with the requirements for exemption (bundle page 97).[23]After the penalty notices were issued the Appellants sought a review of the notices from the Council, which they received dated 12 May 2023. This review, whilst reducing the sanctions, pointed out that it was the Landlord’s responsibility to ensure compliance with the regulations, to instruct an assessor to prepare a certificate and to carry out any necessary works. The notice of review emphasised the need to undertake the measures necessary to comply with the duty to attain a level E rating or better or comply with the procedural requirements to obtain an exemption. About the time of the review, Mr Barke instructed the Assessor to carry out a new assessment with the benefit of the investigations which Mr Barke carried out to reveal the actual construction of the building; which he could have done at any time during the period he had been the landlord and which resulted in new certificates which complied with the standard.[24]The breaches upon which the Council relied were, in respect of both flats, breaches of regulation 22(2)(b) continuing to let property which were sub-standard, and for the purposes of the breach sub-standard is defined by the EPC in existence at the time, not any subsequent re-evaluation carried out with further information. The breaches are clear. It is also clear that (despite protestations that they did not receive routine emails from their agents) the Appellants had notice of this – not least from the EPCs prepared in January 2021. However this information did not result in any serios attempt to comply with their obligations until the Council started on enforcement proceedings.[25]The second pair of breaches upon which the Council relied were in connection with the attempt to establish an exemption. Under regulation 36 the Secretary of State maintains the “PRS Exemptions Register” and a landlord seeking to rely on an exemption needs to place on the register the material specified for that exemption. What the Appellants provided in their attempt to demonstrate an entitlement to an exemption was inadequate and was found by the council on review to be unevidenced and incomplete, further as it was a self-certification process the Appellants claimed that certain works could not be carried out, whereas on review it became apparent that changes to the heating system could produce an improvement to an acceptable level the requirement for a breach is that the Landlord “has registered false or misleading information under regulation 36(2)”. I am not satisfied from the material before me that the Council has established that what was registered was “false or misleading” rather that on its face it was then insufficient and incomplete; a panicked response to the Council’s actions.[26]Appeals to this tribunal are governed by Regulation 43 which provides: 43. If, after a review, a penalty notice is confirmed by the enforcement authority, L may appeal to the First-tier Tribunal on the grounds that— (a)the issue of the penalty notice was based on an error of fact, (b)the issue of the penalty notice was based on an error of law, (c)the penalty notice does not comply with a requirement imposed by these Regulations, or (d)in the circumstances of the case it was inappropriate for the penalty notice to be served on L.[27]The consequences of an appeal are set out in regulation 44: 44.—(1) The bringing of an appeal suspends the penalty notice being appealed taking effect, pending determination or withdrawal of the appeal. (2) The First-tier Tribunal may— (a)quash the penalty notice, or (b)affirm the penalty notice, whether in its original form or with such modification as it sees fit.[28]The Appellants’ case is based on a claim of error of fact; that the premises were properly categorised as E and therefore there was no breach. However the “fact” on which the penalty notices were issued is the letting of property for which there is not an EPC at level E or above. There was no error of law and in the circumstances of the case – the persistent failure to obey the law; the issuing of the penalties in respect of the tenancies was justified.[29]In upholding the penalty notices in respect of the leases I am satisfied that the approach of the Council is correct; however at the time the Assistant Director reviewed the penalties he relied on the information he had, which did not include the new EPCs showing that the properties were E rather than F. In the circumstances I am satisfied that a discount should be applied to the penalties.[30]In respect of each property the Council imposed a penalty of £2000 for letting a sub-standard property and £500 for false and misleading information. In the light of my conclusion on false and misleading information that is reduced to £2000 in respect of each property. The Assistant Director reduced the penalties by 20% which would give a penalty for the letting of £1,600 in respect of each letting offence.[31]I affirm the penalty notices 180531, 180532 in the sum of £1250 in respect of each notice giving a total amount due of £2500. Signed Hughes Date: 3 July 2025