Automated Summary
Key Facts
The case involves an appeal by AA Homes & Housing Ltd and Anabow Services Limited against civil penalties imposed by the London Borough of Croydon for failing to license premises under a selective licensing scheme. The property in question, Flat 39 at 5 Sydenham Road, Croydon, was unlicensed for five months (April–September 2017). The respondent initially set penalties of £26,000 and £12,000, but the First-tier Tribunal (FTT) reduced the first appellant’s penalty to £20,000. The Upper Tribunal concluded the FTT erred in linking fire safety issues to the licensing offence and remitted the matter for re-hearing, allowing the first appellant’s appeal and dismissing the second’s.
Issues
- The first issue concerns whether the First-tier Tribunal (FTT) correctly evaluated the relevance of fire safety hazards in the building when determining the civil penalty for the first appellant. The appellants argued that these hazards, which were not caused by the failure to license, were inappropriately used to increase the penalty. The Tribunal concluded that the FTT erred in this assessment, as the fire risks were not directly linked to the licensing offence.
- The third issue addresses the FTT's adherence to the respondent's penalty policy. The appellants contended that the FTT did not adequately consider documentary evidence of mitigation and failed to provide sufficient reasoning for its penalty calculations. The Tribunal agreed that the FTT's approach to the policy, particularly in relation to the first appellant, was flawed and necessitated a re-hearing.
- The second issue examines the FTT's failure to apply its reasoning consistently to both appellants. The Tribunal found that the FTT's brief and unexplained decision for the second appellant's lower penalty, without separate analysis, required remittal. This includes concerns about potential double-counting of factors and the influence of the fire safety issue on the second appellant's penalty.
Holdings
- The Tribunal found the FTT failed to apply its reasoning consistently to both appellants, particularly in relation to potential double-counting of factors and the fire safety issue's impact on the second appellant's penalty, necessitating a re-hearing.
- The Tribunal held that the First-tier Tribunal (FTT) erred in law by assessing harm based on fire hazards not caused by the failure to license the property, as these hazards were unrelated to the offence and fell under different regulatory provisions.
Remedies
The matter is remitted to the First-tier Tribunal (FTT) for the decision to be re-made, as the appeal succeeds on grounds related to the FTT's assessment of fire risk and the second appellant's penalty.
Legal Principles
The Tribunal held that the local authority's penalty assessment must be based on harm caused by the specific offence (failure to obtain a licence) rather than unrelated fire safety issues. The fire hazards in the building were not causally linked to the licensing breach and therefore could not form the basis for increased penalties under the respondent's policy.
Precedent Name
- London Borough of Waltham Forest v Marshall
- Darlington Borough Council v Kaye
- Sutton v Norwich City Council
Cited Statute
- Tribunals, Courts and Enforcement Act 2007
- Regulatory Reform (Fire Safety) Order 2005
- Housing Act 2004
Judge Name
Elizabeth Cooke
Passage Text
- For that reason also a re-consideration is required.
- The terms 'impact' and 'effect' can only refer to the impact or effect of the offence itself, as there is no suggestion that the effect of anything else is under consideration.