The Court of Appeal holds that effective service in accordance with s.233 Local Government Act 1972 does not preclude a reasonable excuse defence on the basis of non-receipt
Public law & judicial review, Housing, Local government
Riccardo Calzavara acted pro bono in this case which explores the scope of a reasonable excuse defence in the context of housing enforcement.
The case
Ms Tabbasam owned the subject property. Manchester CC (“the Council”) identified hazards in the property and served an improvement notice by posting it to the address listed on the proprietorship register at HM Land Registry. Ms Tabbasam did not receive the notice nor, therefore, did she comply with it. The Council elected to impose a penalty on Ms Tabbasam for her breach of the improvement notice, and served a final notice to that effect which, again, she did not receive.
Both notices eventually came to Ms Tabbasam’s attention. She brought an out-of-time appeal to the First-tier Tribunal (Property Chamber) (“the FTT”) against the final notice, but not against the improvement notice. The FTT determined that Ms Tabbasam had committed an offence under s.30 Housing Act 2004 by reason of her failure to comply with a validly served improvement notice. And it further concluded that she was not able to advance a reasonable excuse defence founded on her non-receipt of the improvement notice because it arose from her own fault; namely not updating the proprietorship register.
Appeal
On appeal to the Upper Tribunal (Lands Chamber), Upper Tribunal Judge Cooke (“the Judge”) overturned the FTT’s decision, concluding that Ms Tabbasam did have a reasonable excuse for her failure to comply with the improvement notice, namely that she had not received it.
The Council further appealed to the Court of Appeal, on six grounds. The central issue was “whether the reasonable excuse defence is available in circumstances in which the [improvement] notice was properly served at the address on the proprietorship register”, in accordance with s.233 LGA 1972: §29. Zacaroli LJ (with whom Falk and Dove LJJ agreed) held that “The judge was entitled to find that Ms Tabbasam had a reasonable excuse for not complying with the improvement notice because she never received it, and that she was not precluded from relying on the defence by the circumstances in which the notice failed to reach her”: §55.
The appeal was dismissed.
Read the full judgment here.
Riccardo Calzavara, leading Hugh Rowan of Tanfield Chambers, was instructed on a pro bono basis by Ms Tabbasam. In a postscript to its judgment, the Court of Appeal had occasion to comment as follows:
“The Court is equally grateful to Mr Calzavara and Mr Rowan who, despite being instructed only two days before the hearing, provided a skeleton argument of the highest quality and oral submissions to match. These were of great assistance to the Court, and have proved to be of significant benefit to Ms Tabbasam. This case demonstrates the enormous value to litigants and the courts of charities such as Advocate who provide free legal assistance for litigants in need of it, and of lawyers who are prepared to provide their services for free.”
