Upper Tribunal confirms primacy of council’s policy in determining appeals arising from s.249A penalties

20 Jun 2023

Housing, Property

Yesterday, the Upper Tribunal (Lands Chamber) handed down a decision in Waltham Forest LBC v Rahman [2023] UKUT 139 (LC).

The appellant controlled unlicensed licensable property. The council imposed a s.249A penalty with a starting point of £5,000, on the understanding that he controlled fewer than five dwellings, in line with its policy. The appellant brought an appeal to the First-tier Tribunal (FTT) (Property Chamber), asserting that the quantum was excessive. During the course of the appeal the FTT heard evidence that the appellant in fact controlled/owned more than five dwellings. The council asserted that the FTT should, standing in the council’s shoes, increase the penalty so that it had a starting point of £15,000, in line with its policy. The FTT refused to do so, instead upholding the penalty that the council had imposed.

The council appealed to the Upper Tribunal (Lands Chamber). Upper Tribunal Judge Cooke held that the FTT “uncontrovertibly” had power to increase the penalty in light of information coming to light during the course of the appeal. She expressed herself thus, at §14 (emphasis added):

“As Mr Calzavara points out, if the local housing authority imposed a penalty on a landlord on the basis that he or she owned and was renting out, say, 15 properties, and the FTT found as a fact in the appeal that he or she owned only one, then it is implausible to suggest that the FTT should or could do anything other than to start from the local authority’s policy and determine the penalty on the basis that only one property was owned. Such a penalty would no doubt be substantially lower. Conversely, in a hypothetical case where the local authority proceeded on the basis that one property was owned but the FTT found as a fact that 15 properties were owned then the FTT would determine the penalty on the basis of that finding of fact.”

UTJ Cooke went on to confirm that the burden for persuading the FTT to depart from the policy was on the landlord, and that the bases on which a policy may be departed from could not be definitively stated.

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Riccardo Calzavara appeared for the council, instructed by Simon Kiely of Sharpe Pritchard LLP.