Apartment 2, 1A Vicar Road, Liverpool L6 0BW: MAN/00BY/HNA/2024/0614:
Northern Region Judge J Hadley and Member Mr H Thomas sitting on 27th October 2025.
Read the full decision in [1
Case Reference : MAN/00BY/HNA/2024/0614
Property : Apartment 2, 1A Vicar Road, Liverpool
L6 0BW
Applicant : Mr Malik Abdul Aziz
Respondent : Liverpool City Council
Representative : Ms Lisa Feng (Counsel)
Type of Application : Appeal against a financial penalty:
Section 249A & Schedule 13A to the
Housing Act 2004
Tribunal Members : Judge J. Hadley
Mr H. Thomas FRICS
Date and venue of : 27 October 2025
Hearing Civil & Family Court, Liverpool
Date of Decision : 25 November 2025
_________________
DECISION
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© CROWN COPYRIGHT 2025
FIRST - TIER TRIBUNAL
PROPERTY CHAMBER
(RESIDENTIAL PROPERTY)
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DECISION
The financial penalty notice dated 16 October 2024 is varied. Mr
Malik Abdul Aziz must therefore pay a financial penalty of £1,500 to
Liverpool City Council.
REASONS
INTRODUCTION
The appeal
1. On 1 November 2024, Mr Malik Abdul Aziz appealed to the Tribunal
against a financial penalty imposed on him by Liverpool City Council
(“the Respondent”) under section 249A(1) of the Housing Act 2004 (“the
2004 Act”). The financial penalty related to an alleged housing offence
in respect of premises known as Apartment 2, 1A Vicar Road, Liverpool
L6 0BW (“the Property”).
2. To be more precise, the Applicant appealed against a final notice dated 16
October 2024 given to him by the Respondent under paragraph 6 of
Schedule 13A to the 2004 Act (“the Final Notice”). It imposed a financial
penalty of £6,750.00 for alleged conduct amounting to an offence under
section 95 of the 2004 Act.
The hearing
3. The appeal was heard in person on 27 October 2025. The Applicant
represented himself. The Respondent was represented by Ms Lisa Feng
(Counsel).
4. The Applicant gave oral evidence having first given an affirmation to the
Tribunal because his written submissions omitted to include a Statement
of Truth. The Tribunal also heard oral evidence from a witness for the
Respondent: Mr Gregory Prescott (a Technical Compliance Officer
employed by the Council). Opportunity was given for each witness to be
cross-examined. The Respondent also relied upon the written witness
statements of Ms Jennifer Driscoll (a Private Sector Housing Selective
Licensing Manager employed by the Respondent), Mr Steven Bowers
(Deputy Head of Private Sector Housing (Interim) employed by the
Respondent) and Mr Steven Daniels (a Technical Compliance Officer
employed by the Respondent). Oral submissions were also made by both
parties. In addition, the Tribunal considered the documentary evidence
provided by the parties in support of their respective cases.
5. The Tribunal did not inspect the Property prior to the hearing, but
understands it to comprise a residential, leasehold apartment.
6. There were two preliminary issues for the Tribunal to deal with, both
relating to the late filing of documents. First, the Respondent had
omitted from its bundle evidence of emails sent in 2021 and 2022 to
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landlords on a redacted spreadsheet who were existing licence holders
under a previous licensing scheme, which included the Applicant’s
hotmail email address (“the Mail Merge Evidence”). Second, the
Tribunal noted that the Applicant had submitted a Supplemental Reply
to the Respondent’s Supplementary Response with additional evidence
(“the Applicant’s Additional Evidence”) outside of the steps directed by
the Tribunal on 19 June 2025. Given that neither party objected to the
inclusion of the other party’s late evidence, the Tribunal determined to
include both documents in the bundle pursuant to the overriding
objective at Rule 3 and its case management powers at Rule 6(3)(a) of
The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules
2013.
7. The Respondent wished to clarify in relation to the Mail Merge Evidence
that, at the time that those emails were sent, he was not an existing
licence holder in relation to the Property. The Respondent’s previous
licensing scheme related to other areas of Liverpool, and the Applicant
was on the Respondent’s spreadsheet because he owned two other
properties in areas where the previous scheme had applied, and he had
the relevant licences for those other properties. The Tribunal and the
Applicant acknowledged and noted that fact.
STATUTORY FRAMEWORK
Power to impose financial penalties
8. New provisions were inserted into the 2004 Act by section 126 and
Schedule 9 of the Housing and Planning Act 2016. One of those
provisions was section 249A, which came into force on 6 April 2017. It
enables a local housing authority to impose a financial penalty on a
person if satisfied, beyond reasonable doubt, that the person’s conduct
amounts to a “relevant housing offence” in respect of premises in
England.
9. Relevant housing offences are listed in section 249A(2). They include the
offence (under section 95) of having control of or managing a house
which is required to be licensed under Part 3 of the 2004 Act, but which
is not so licensed.
10. Only one financial penalty under section 249A may be imposed on a
person in respect of the same conduct. The amount of that penalty is
determined by the local housing authority (but it may not exceed
£30,000), and its imposition is an alternative to instituting criminal
proceedings for the offence in question.
Procedural requirements
11. Schedule 13A to the 2004 Act sets out the procedure which local housing
authorities must follow in relation to financial penalties imposed under
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section 249A. Before imposing such a penalty on a person, the local
housing authority must give him or her a notice of intent setting out:
• the amount of the proposed financial penalty;
• the reasons for proposing to impose it; and
• information about the right to make representations.
12. Unless the conduct to which the financial penalty relates is continuing,
that notice must be given before the end of the period of six months
beginning on the first day on which the local housing authority has
sufficient evidence of that conduct.
13. A person who is given a notice of intent has the right to make written
representations to the local housing authority about the proposal to
impose a financial penalty. Any such representations must be made
within the period of 28 days, beginning with the day after that on which
the notice of intent was given. After the end of that period, the local
housing authority must decide whether to impose a financial penalty
and, if a penalty is to be imposed, its amount.
14. If the local housing authority decides to impose a financial penalty on a
person, it must give that person a final notice setting out:
• the amount of the financial penalty;
• the reasons for imposing it;
• information about how to pay the penalty;
• the period for payment of the penalty;
• information about rights of appeal; and
• the consequences of failure to comply with the notice.
Appeals
15. A final notice given under Schedule 13A to the 2004 Act must require the
penalty to be paid within the period of 28 days beginning with the day
after that on which the notice was given. However, this is subject to the
right of the person to whom a final notice is given to appeal to this
Tribunal (under paragraph 10 of Schedule 13A).
16. 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.
RELEVANT GUIDANCE
17. A local housing authority must have regard to any guidance given by the
Secretary of State about the exercise of its functions in respect of the
imposition of financial penalties. Such guidance (“the HCLG Guidance”)
was issued by the Ministry of Housing, Communities and Local
Government in April 2018: Civil penalties under the Housing and
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Planning Act 2016 – Guidance for Local Housing Authorities. It states
that local housing authorities are expected to develop and document
their own policy on when to prosecute and when to issue a financial
penalty and should decide which option to pursue on a case-by-case
basis. The HCLG Guidance also states that local housing authorities
should develop and document their own policy on determining the
appropriate level of penalty in a particular case. However, it goes on to
state:
“Generally, we would expect the maximum amount to be reserved for
the very worst offenders. The actual amount levied in any particular
case should reflect the severity of the offence as well as taking account
of the landlord’s previous record of offending.”
18. The HCLG Guidance also sets out the following list of factors which local
housing authorities should consider to ensure that financial penalties are
set at an appropriate level:
a. Severity of the offence.
b. Culpability and track record of the offender.
c. The harm caused to the tenant.
d. Punishment of the offender.
e. Deterrence of the offender from repeating the offence.
f. Deterrence of others from committing similar offences.
g. Removal of any financial benefit the offender may have obtained as a
result of committing the offence.
19. In recognition of the expectation that local housing authorities will
develop and document their own policies on financial penalties, the
Respondent has issued its own Private Sector Housing Civil Penalties
Policy (“the Respondent’s Policy”). A copy of the Respondent’s Policy
was included within the bundle, and we make further reference to this
policy later in these reasons.
BACKGROUND FACTS
20. The Respondent is responsible for the licensing of houses within its
district under Part 3 of the 2004 Act. Since 1 April 2022, the Respondent
has been operating a selective licensing scheme, pursuant to s.80 of the
2004 Act. The selective licensing scheme requires a licence to be
obtained from the Respondent in order to control and/or manage certain
privately rented properties situated in the designated areas which
include the area of Anfield, where the Property is located.
21. On 4 March 2024, an investigating officer for the Respondent, Mr
Gregory Prescott, visited the Property to assess whether the Property
was being let. The occupiers of the Property confirmed that they were
tenants and presented a tenancy agreement to Mr Prescott which
showed the Applicant to be the landlord. Later that day, Mr Prescott
received a telephone call from the Applicant during which the Applicant
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said that he would make the application for a licence that day, although
that did not happen.
22. From the tenancy agreement commencement date, the tenants of the
Property moved in on 1 October 2023. From the register of title obtained
from H.M. Land Registry, the Respondent also established that the
Applicant, Malik Abdulo Aziz was the registered leasehold owner of the
Property. This was accepted by the Applicant at the hearing.
23. On 14 March 2024, a Respondent officer wrote to the Applicant under
section 16 of the Local Government (Miscellaneous Provisions) Act 1976
to request certain information (the “s 16 Notice”). The Applicant did not
respond to that notice, which is a separate offence.
24. The Applicant was invited to attend a voluntary interview under the
Police and Criminal Evidence Act 1984 but did not attend.
25. On 16 April 2024, the Applicant made the licence application, and the
licence was subsequently granted on 13 May 2024.
26. Following a Respondent case conference review meeting, the
Respondent served the Applicant with a notice of intention to impose a
financial penalty dated 24 September 2024 (“the Notice of Intent”). The
Notice of Intent proposed a financial penalty of £6,750.00 (the
“Penalty”).
27. The Penalty was calculated on the following factors:
a. Level of culpability – High
b. Level of harm – Medium
c. Aggravating factors – None
d. Mitigating factor – 25% reduction in penalty as the Applicant
had no relevant unspent convictions or relevant cautions or civil
penalties within the last two years.
28. According to the Respondent’s Policy, when calculating a financial
penalty, the Respondent assesses the economic benefit to the property
owners to ensure that there is no financial benefit to the owner for non-
compliance. In this case, the Council had found that the Applicant had
made no economic gain from the offence and so no adjustment to the
Penalty was made in that regard.
29. According to the Respondent’s Policy, the Respondent should consider
whether there has been an early admission of guilt by the Applicant and,
if so, should consider a reduction to the penalty amount, the maximum
permitted level of reduction being one-third of the penalty amount. In
this case, the Respondent considered that there had been no admission
of guilt during the investigation or thereafter and so made no reduction
to the penalty accordingly.
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30. The Respondent received written representations from the Applicant on
27 September 2024 in which the Applicant set out details of his health
issues.
31. The Respondent saw no reason to alter the Penalty, and, on 16 October
2024, the Final Notice was served upon the Applicant citing the Penalty.
32. On 1 November 2024, the Applicant submitted his appeal to the
Tribunal in respect of the Final Notice.
The Applicant’s Submissions
33. The Applicant accepts that the Property was not licensed at the time
that the Respondent conducted its visit on 4 March 2024. The Applicant
confirmed, during the hearing, that he accepted there was a legal
requirement on him to obtain the licence, and he had never denied that
fact.
34. The Applicant submits that he has a reasonable excuse for not licensing
the Property as he was not aware that a licence was required in that area
of Liverpool due to exceptional personal health circumstances including
major heart surgery and ongoing recovery. The Applicant underwent
quadruple open-hear surgery in 2022, which was a major event in his life
and a major shock to him and everyone around him. This overlapped
with the period when the new selective licensing scheme was being rolled
out, and it did not have his attention as it should have done. As a result,
he was unaware that the scheme had expanded. Had he been aware, he
would have applied for a licence. He made a mistake and it was not a
deliberate attempt to avoid compliance.
35. The Applicant submits that he experienced ongoing health challenges,
affecting his focus and management abilities and that there was a long-
term impact of such major surgery, both physically and mentally.
36. He also submits that he did not receive and / or read communications
from the Respondent. In particular, many emails often end up in his
spam folder. He has a portfolio of work, a number of email accounts and
a high volume of emails so he may have inadvertently missed emails.
Keeping on top of his emails had become challenging.
37. He also submits that certain letters, although correctly addressed by the
Respondent, may have been wrongly delivered to nearby properties
which have similar addresses. There are two similar addresses in the
vicinity, and the post deliveries are often mixed up between those
addresses. Once he became aware of this investigation, he was more
conscious of going to check at the other addresses to collect any wrongly
delivered post. He would have acted on the letters once he received them.
38. In terms of the six-week delay between the Applicant becoming aware
of the offence and him submitting the licence application, he does not
accept that this shows wilful blindness. He took steps during that time
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to make the application as best he could at the time and there was
nothing more he could do. He called the Selective Licensing team at the
Respondent two or three times before he finally spoke to a woman who
assisted him with submitting the application. He also said during the
hearing that he was 100% sure he asked Mr Prescott for a remote
interview under caution using Teams, because he did not want to travel
due to his health, and that he was told the Respondent did not offer this.
He was confused that there were two sets of proceedings going on
because he was also being pursued by the Respondent in relation to his
failure to respond to the s 16 Notice at that time. Responding within six
weeks seemed reasonable to him.
39. The other Respondent team investigating the criminal offence of failing
to respond to the S 16 Notice understood his medical issues and accepted
the difficulties he had had with communications, and they had dropped
that case.
40. In addition, the Applicant argues that the Penalty is excessive and
manifestly disproportionate.
41. In calculating the financial penalty itself, the Respondent was wrong to
find that culpability was high. He had made a genuine mistake and had
dealt with it as best he could. The Applicant provided all the documents
that he had to the Respondent as early as possible. Other documents took
time to locate, and he had commissioned new ones to enable the
application. He had provided the outstanding gas certificates prior to the
hearing, but the Respondent had not taken account of them. In terms of
the electricity safety records, a new consumer unit was installed in 2020
and the electrician who worked on the Property in 2023 had confirmed
in writing that the consumer unit in 2023 was a relatively new one and
all was in good order at that time. The Applicant had also submitted
photographic evidence showing the work undertaken to the Property
prior to the tenancy to support this.
42. The level of harm caused was nowhere near high level of risk. Again, the
Respondent had not taken account of the historic gas certificates in its
calculation. Everything at the Property had been in order. The
photographs provided demonstrated how the Property had been
upgraded and brought back into use by the Applicant. The Applicant
submits that he has always been a good landlord.
43. The Applicant submits that the Respondent had not taken account of
mitigating factors. In terms of whether he had made an early admission,
he did not see where there was any scope for him to have done anything
differently. He considered his accepting that he did not have the licence
and then getting one to be the same thing as “agreeing” to the offence.
44. The Applicant submits that the Respondent has been inconsistent in the
way that it has taken enforcement action against other landlords in the
same block as the Property and one flat remains unlicensed.
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The Respondent’s Submissions
45. The Respondent argues that the Applicant has not discharged the
burden of proof to show that he had a reasonable excuse for failing to
obtain the licence. Whilst the medical evidence provided by the
Applicant confirms his operation in 2022, he was discharged from
hospital in May 2022 and there is no evidence of treatment in 2023. The
heart procedure was 16 months before the period of offending. The
Applicant is an experienced landlord, operating a business as a director
of a company and, by October 2023, he was well enough to be involved
in signing the tenancy agreement for the Property. If the Applicant was
unable to manage the Property, he had the option of appointing an agent.
46. In terms of the level of Penalty, the Respondent refers to the case of
Waltham Forest LBC v (1) Marshall (2) Ustek [2020] UKUT0035 (LC)
and submits that this reinforced the importance of the Respondent’s own
policy. The Respondent’s Policy is the starting point and no real reason
to depart from the Respondent’s Policy has been put forward by the
Applicant.
47. The penalty has been assessed in accordance with the Respondent’s
Policy, as demonstrated by the detailed reasons provided by the
Respondent with the notices.
48. In terms of culpability, the Respondent submits that Applicant either
had actual foresight of or wilful blindness to the risk of offending since
he was notified of the requirement and ought to have known. Details
were sent to him by email on seven separate occasions in 2022 as
evidenced by the Mail Merge Evidence. These were sent to the
Applicant’s hotmail address which he confirmed to be an important and
active account. A letter was also sent on 22 January 2024. Furthermore,
the Applicant has experience as a landlord and a number of other
properties and so ought to have been aware and had a duty to find out
his obligations as a landlord.
49. Even if there was a lack of knowledge in 2022, there was knowledge in
2024, and this adds to culpability. The Applicant accepts that he was
aware of the requirement from 4 March 2024, but the application for a
licence was not made until 16 April 2024 which is a substantial delay.
The Respondent relies upon further correspondence sent to the
Applicant during this time. No evidence has been provided that the
Applicant was confused or needed help with the process. Rather, in a
voicemail left on 18 March 2025 by the Applicant to Mr Prescott, the
Applicant stated that he was arranging gas and electricity certificates so
he could make the application. During this time, the Applicant failed to
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engage including failing to comply with the s 16 Notice and to attend the
interview under caution.
50. All correspondence was correctly addressed to the Applicant, and the
Respondent submits that it is unlikely that all the letters, and in
particular the two crucial letters dated 22 January 2024 and 14 March
2024, went astray.
51. The Respondent submits that Mr Prescott wrote to the Applicant on 1
May 2024, following his failure to attend the interview under caution,
stating that he had not heard from the Applicant and that that letter is
evidence that the Applicant never asked for the interview to be held via
Teams.
52. In terms of harm, even if a property is in perfect condition, the lack of
licensing is an offence. The Applicant’s alleged responsible approach to
property management and the state of the Property are not relevant. The
licence is required so that the Respondent can have oversight of the
property, and, therefore, a lack of a licence application undermines the
role of the regulator.
53. The Applicant appears to have taken steps to obtain gas and electricity
safety certificates after the offence was discovered and this indicates that
those legally required documents were not held in advance. The new
electricity safety certificate confirms, on the face of it, that the
distribution centre was replaced suggesting that the Property was not
safe beforehand.
54. Whilst the Respondent has acknowledged no actual harm was caused,
the fact that the Applicant did not have the required certificates means
that harm could have occurred and the risk was greater than it would
have been.
55. In terms of mitigating factors, the Applicant’s medical issues 16 months
prior to the offence had been considered by the Respondent and was
covered in the Respondent’s detailed response.
56. The Applicant has never admitted the offence given his position that he
had a reasonable excuse and so no reduction was made for an early
admission of guilt. Mr Prescott stated, during cross examination, that
such an admission would need to have been made at the interview under
caution which the Applicant did not attend.
57. The breach period is a prolonged period and is an aggravating factor
which the Respondent could have had regard to.
58. The Respondent’s representative also went through a list of authorities
provided by the Applicant and asserted that three cases could not be
found, and that the other cases were either not relevant or the points
made by the Applicant were not reflective of the actual decisions.
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The Tribunal’s Deliberations and Determinations
59. The Tribunal, under paragraph 10 of Schedule 13A to the 2004 Act, may
confirm, vary, or cancel a final notice, determining the matter as a re-
hearing of the local authority’s decision.
60. In reaching its determination the Tribunal considered the relevant law
and all evidence submitted, both written and oral, and briefly
summarised above. The Tribunal also notes that the Applicant accepted
that, at the relevant time, he was unlicensed.
Reasonable Excuse
61. Under s.249A of the 2004 Act, a local authority may only impose a
financial penalty on a person if it is satisfied ‘beyond reasonable doubt’
that a person’s conduct amounts to a relevant housing offence. Pursuant
to s.95(4) of the 2004 Act, the landlord has a defence to the offence if he
had a reasonable excuse for having control of or managing the property
in question without a licence.
62. In deciding this question, the Tribunal considered the guidance set out
by the Upper Tribunal in Marigold v Wells [2023] UKUT 33 LC. In
paragraph 48 of the judgment, the Upper Tribunal referred to three steps
which the First-tier Tribunal could use when deciding whether such a
defence was established: firstly, which facts give rise to the offence;
secondly, which of those facts were proven; and, thirdly, whether if
viewed objectively those facts did amount to a reasonable excuse.
63. In terms of the impact of the Applicant’s health, the Applicant has
provided evidence that he underwent major heart surgery on 16 May
2022. His medical records show that he was being investigated for heart
problems from late 2021 and into early 2022, before being diagnosed
with severe triple vessel disease of the heart in March 2022. He was
discharged in respect of that surgery on 21 May 2022 but subsequently
takes medication including an antidepressant. He gave oral evidence
that that event continued to have an impact on him afterwards both
physically and mentally. During cross-examination and in his closing
submission, the Applicant was visibly distressed when speaking about
the impact it had had on him mentally and found it difficult to elaborate
on that subject. Whilst the letters from his GP dated 30 July 2024 and 5
September 2025 were produced in relation to different proceedings, the
first letter talks about Mr Aziz suffering from “mental health problems”
and that the proceedings which were the subject of that letter were “likely
to cause a relapse of his mental health problems”, supporting the fact
that the Applicant had been living with poor mental health for some time
before that date.
64. However, the Applicant has not produced any medical evidence to
demonstrate that he was incapacitated by his continuing health issues,
physical or mental, during 2023 and 2024, and the evidence before the
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Tribunal is that, by October 2023, he was well enough to let the Property
and to deal with the paperwork and sign the tenancy agreement.
65. In terms of the difficulties which the Applicant said he experienced with
communications, the Applicant gave frank evidence that he received an
overwhelming amount of emails and that he probably had received some
of the emails sent by the Respondent, and also that he had had to
improve his process for managing emails including checking spam
folders.
66. In terms of receiving letters by post, the Applicant also gave frank
evidence that he accepted that the Respondent had correctly addressed
letters to him and he may have received some letters but he was not 100%
sure he did, and that could have been due to ongoing issues which he has
had with his post being sent to two addresses in the vicinity with similar
addresses. The two addresses referred to are indeed like his own address
and near his address.
67. The Applicant had previously obtained the correct licences for his two
other properties under a previous scheme, and he told the Tribunal that,
had he been aware, he would have applied for the licence for the
Property.
68. The Tribunal accepts the Applicant’s evidence that the surgery had a
major impact on his life and that it continued to have a significant impact
on him afterwards, including mentally, and this caused the Applicant to
overlook the roll out of the licensing scheme in 2022.
69. The Tribunal also accepts the Applicant’s evidence that he was not on
top of his emails, some of which may have gone into his spam folder, and
finds that this was exacerbated by the mental health issues he was
experiencing.
70. The Tribunal also accepts the Applicant’s evidence that his post was
misdirected on occasions and that he may have missed letters from the
council due to this factor. Again, his ability to address this issue
effectively was exacerbated by the mental ill health he was experiencing.
However, the Tribunal cannot determine whether the Applicant received
the letter of 22 January 2024.
71. In any event, the Tribunal accepts that the Applicant had not been aware
of the scheme until March 2024, when contacted by the Respondent, and
that, if he had been, he would have applied for the licence sooner. The
fact that the Applicant had previously obtained selective licences for his
two other properties under the Respondent’s previous licensing scheme
is, in the Tribunal’s opinion, strong corroborating evidence of this.
72. As to whether the Applicant’s lack of knowledge of the scheme due to his
circumstances amounts to a reasonable excuse, the Tribunal considers
that, as a landlord, it was for the Applicant to make himself aware of all
his legal obligations in respect of the Property and the requirements of
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the Respondent. In the absence of additional medical evidence and on
the evidence before the Tribunal, the Applicant is an experienced
landlord and businessperson and, by October 2023, he was well enough
to let out the Property (and to sign the tenancy agreement). At that stage,
the Applicant should have taken steps to identify what was required of
him by law or by way of the Respondent’s housing policy. Alternatively,
he could have employed a managing agent to manage the Property for
him.
73. Accordingly, the Tribunal determines that the Applicant’s lack of
knowledge of the scheme due to his medical circumstances and
difficulties with communications does not amount to a reasonable
excuse.
Imposition and Level of Penalty
74. Given that the Applicant has not established a reasonable excuse
defence, it follows that the Tribunal is satisfied, beyond reasonable
doubt, that he has committed an offence under s.95(1).
75. The Respondent was entitled to consider whether to prosecute the
Applicant under s.95(5) of the Act or impose a financial penalty under
s.249A of the 2004 Act. The Tribunal is satisfied that it was appropriate
for the Respondent to impose a financial penalty on the Applicant in
respect of his failure to licence the Property. The Tribunal must therefore
determine the amount of that penalty.
76. The Tribunal must make its own determination as to the appropriate
amount of the financial penalty having regard to all the available
evidence. In doing so, the Tribunal should have regard to the seven
factors specified in the HCLG Guidance as being relevant to the level at
which a financial penalty should be set (see paragraph 20 above).
77. The Tribunal should also have regard to the Respondent’s Policy. As the
Upper Tribunal (Lands Chamber) observed in Sutton & Another v
Norwich City Council [2020] UKUT 0090 (LC):
“It is an important feature of the system of civil penalties that they are
imposed in the first instance by local housing authorities, and not by
courts or tribunals. The local housing authority will be aware of housing
conditions in its locality and will know if particular practices or
behaviours are prevalent and ought to be deterred.”
78. The Upper Tribunal went on to say that the local authority is well placed
to formulate its policy and endorsed the view that a tribunal’s starting
point in any case should normally be to apply that policy as though it
were standing in the local authority’s shoes. It offered the following
guidance in this regard:
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“If a local authority has adopted a policy, a tribunal should consider for
itself what penalty is merited by the offence under the terms of the
policy. If the authority has applied its own policy, the Tribunal should
give weight to the assessment it has made of the seriousness of the
offence and the culpability of the Applicant in reaching its own
decision.”
79. Upper Tribunal guidance on the weight which tribunals should attach to
a local housing authority’s policy (and to decisions taken by the authority
thereunder) was also given in another decision of the Lands Chamber:
London Borough of Waltham Forest v Marshall & Another [2020]
UKUT 0035 (LC): whilst a tribunal must afford great respect (and thus
special weight) to the decision reached by the local housing authority in
reliance upon its own policy, it must be mindful of the fact that it is
conducting a rehearing, not a review: the tribunal must use its own
judgment and it can vary such a decision where it disagrees with it,
despite having given it that special weight.
80. Whilst the Tribunal has given very careful consideration to the decision
reached by the Respondent and the reasons for the same, the Tribunal
disagrees with the Respondent’s assessment of the level of culpability
and harm. The Respondent assessed culpability to be high and harm to
be medium.
81. In respect of culpability, according to the Respondent’s Policy, the
Applicant must have had “actual foresight of, or wilful blindness to, risk
of offending but risk nevertheless taken” to be classified as high.
82. As previously stated, and for the reasons stated above, the Tribunal
accepts that the Applicant had not been aware of the selective licensing
scheme until March 2024 and so the Applicant did not have actual
foresight or wilful blindness of the risk up to March 2024.
83. In respect of the period between March 2024 and the Applicant making
the application on 16 April 2024, the Tribunal does not accept the
Respondent’s submission that the Applicant failed to engage during that
period; even according to Mr Prescott’s witness evidence, the Applicant
had contacted him four times by telephone, voicemail and text message
during this time. Mr Prescott’s witness evidence acknowledged that,
during those conversations, the Applicant told him he was taking steps
to enable him to make the application by obtaining new gas and
electricity certificates and also that he had been struggling with the
application process. The Tribunal has no reason to doubt the Applicant’s
evidence that he also spoke to the Selective Licensing department during
this period but found it difficult to obtain the assistance he required until
he eventually spoke to a particular lady who helped him through the
process step by step. The Tribunal finds that this activity by the
Applicant showed that the Applicant was engaged in the process of
making the application during this time albeit slowly.
15
84. In relation to the s 16 Notice which the Applicant failed to respond to,
the Tribunal has accepted the Applicant’s evidence that his post was
misdirected on occasions and that he may have missed letters from the
Respondent due to this factor and also that his ability to address this
issue effectively was exacerbated by the mental health issue he was
experiencing. However, the Tribunal cannot determine whether the
Applicant received the letter of 14 March 2024. In any event, the
department at the Respondent dealing with that matter has not pursued
separate proceedings in relation to that offence, and so it would appear
that they did accept the Applicant’s explanation as to why he did not
respond to the notice. Therefore, the Tribunal does not consider that the
Applicant’s failure to respond to the s 16 Notice alone is evidence that he
was “wilfully blind” to the requirement for a licence.
85. In relation to the invitation by the Respondent to the Applicant to attend
an interview under caution dated 15 April 2024, the Tribunal notes that
the application for the licence was made on 16 April 2025 and so it does
not consider that the question of whether or not the Applicant responded
to or ignored the letter of 15 April 2025 is a relevant consideration in
terms of the level of culpability of this offence. That said, for the record,
the Tribunal notes that the Respondent’s letter dated 1 May 2024
corroborates the Respondent’s version of events. On balance, the
Tribunal prefers the Respondent’s evidence on that basis and suspects
that the Applicant may have spoken to the Respondent after he received
the latter letter and misremembered the order. However, the Tribunal
has no reason to doubt such a confident recollection by the Applicant
that he did request an interview by Teams call and finds that it is likely
that this proposal was made by the Applicant in the subsequent call.
Further, the Tribunal notes again its previous findings in terms of the
difficulties which the Applicant was having, generally, in terms of the
receipt of his post and the management of his affairs due to his physical
and mental health.
86. In relation to the procurement of new gas and electricity certificates for
the Property by the Applicant, the Applicant has since produced the
missing gas certificates to show that these were obtained at the requisite
times and has also produced further evidence in relation to the condition
of the electrics at the Property. Therefore, the Tribunal accepts the
Applicant’s explanation for procuring new certificates simply for speed
because he anticipated it would take longer to find the old ones.
87. As stated above, the Tribunal accepts the Applicant’s evidence that the
surgery had a major impact on his life and that it continued to have a
significant impact on him afterwards, including mentally. This was also
a factor playing into his ability to deal with the application promptly and
effectively at this time.
88. Considering the above, whilst the Applicant did not apply for the licence
immediately upon being aware of the requirement, the Tribunal finds
that he was engaged and taking active steps during this time to achieve
that end. Whilst six weeks is not an insignificant delay, in the context of
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the difficulties faced by the Applicant, including mental ill health, it was
not a very significant delay. The Tribunal accepts the Applicant’s
evidence that he dealt with it as best he could and that he believed that
the time he took was reasonable to make the application. On that basis,
the Tribunal does not consider that there is any evidence that the
Applicant had “actual foresight of or wilful blindness” to the risk of
offending during this period.
89. Under the Respondent’s Policy, culpability is assessed as medium if the
offence was “committed through act or omission which a person
exercising reasonable care would not commit” or that “systems were in
place to manage risk or comply with legal duties but these were not
sufficiently adhered to or implemented”. The Tribunal considers that
the Applicant’s conduct rightly falls within this category both prior to
and after March 2024. In particular, after March 2024, during the six
week period, the Tribunal considers that the Applicant was in the process
of making the application in good faith but did not do so quickly enough
and that a person exercising reasonable care would have submitted the
application more quickly and / or he did not adhere to or implement the
process of applying for the licence sufficiently (quickly, in this case).
90. In respect of harm, under the Respondent’s Policy, to be assessed as
medium harm, there must have been “Adverse effect on individual(s)
but not amounting to High Harm” or “Medium Risk of adverse harm to
an individual or low risk of a serious adverse effect” or “The Council’s
work as a regulator is undermined by the offenders behaviour” or
“Consumer / tenant misled”.
91. There is no suggestion here that there is any actual adverse effect on
individuals or a consumer / tenant misled.
92. The Respondent’s assessment of harm was partially based upon the fact
that the Applicant had procured new gas and electricity safety records
prior to the submission of the licence application and the Respondent’s
inference that this meant that the Applicant had not complied with his
legal obligations prior to this, such that there was a risk of harm to the
tenants. However, there is no evidence of any risk of harm to the tenants.
The Applicant has since provided gas safety certificates for the missing
years 2022 and 2023 demonstrating that he had fully complied with his
obligations in that regard. In relation to the electricity report, the
Applicant has produced a valid condition report for 2020-2025 also
demonstrating that he had fully complied with his obligations in that
regard. Whilst the 2024 report does indicate on the face of it the
“replacement of a distribution board”, the Applicant has demonstrated
that significant work was undertaken to upgrade the Property in 2020,
as evidenced by the photographs, and the photographs appear to show
before and after the replacement of the distribution board, and it would
make sense for such works to have been undertaken at the same as the
refurbishment of the Property. The Applicant has also provided evidence
from an electrician that all was in order in 2023. Therefore, the
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Respondent’s inference that the Applicant was aware of safety issues
related to the electrical installations prior to obtaining that later report
appears to be mere speculation. As set out above, the Tribunal has
accepted the Applicant’s explanation for procuring new certificates
simply for speed because he anticipated it would take longer to find the
old ones. Based upon the above, the Tribunal determines that the
Respondent was wrong to assess that there was a medium risk of adverse
harm or a low risk of a serious adverse effect.
93. The Respondent’s assessment of harm was also based upon its view that
its work as a regulator was undermined by the offender’s behaviour. The
Tribunal considers that it cannot be the case that the lack of a licence
application alone undermines the role of the regulator, since, if that was
the case, this category would apply to every offender. The Respondent
has not identified any other reason or evidence to justify this
categorisation. Furthermore, the Tribunal noted that Mr Prescot
confirmed during his oral evidence that, as far as he was aware, no one
from the Respondent had been to inspect the Property to date, even since
the licence had been obtained, demonstrating that the Respondent’s
work as a regulator had not be undermined because the Respondent had
not sought to use its powers in that regard. In the circumstances, the
Tribunal finds that the Respondent was wrong to assess that the
Applicant’s conduct had undermined the Respondent’s work as a
regulator.
94. Considering the above, the Tribunal determines that, under the
Respondent’s Policy, the level of harm is low, there being a low risk of
adverse effect on an individual(s).
95. Based upon the Tribunal’s findings of culpability and harm, the starting
point for the penalty based upon the Respondent’s Policy is £4,500.
However, when the Respondent imposed the penalty, it decided to
impose the penalty at the lower end of the band range (which was
£9,000) on the basis that the Applicant had eventually licensed the
Property. The Tribunal considers it is reasonable to adopt the same
approach here on the same basis, and so the Tribunal takes the starting
point as £3750 which is the lowest end of the penalty band range.
96. The Tribunal then went on to consider the aggravating and mitigating
factors considered by the Respondent.
97. The Tribunal agrees with the Respondent’s assessment that there are no
aggravating factors in the current case.
98. The Tribunal considers that the Respondent was wrong to consider
there were only three mitigating factors (being no relevant unspent
convictions or relevant cautions or civil penalties within the last two
years). The Respondent has omitted to consider other mitigating factors
which apply in the circumstances. In particular, the Respondent has
failed to consider the mitigating circumstances relating to the fact that
the Applicant previously correctly licensed two other properties, and
18
relating to general good management and the condition of the property,
which considerations the Tribunal considers are provided for in the
Respondent’s Policy’s list of mitigating factors (which is an non-
exhaustive list in any event).
99. The Tribunal considers that there are seven mitigating factors, in
accordance with the Respondent’s Policy. Those factors are as follows:
a. No relevant unspent previous convictions / good character – The
Applicant has no previous convictions.
b. No relevant cautions within the last two years – The Applicant has
no previous cautions.
c. No relevant civil penalties within the last two years – The
Applicant has no previous civil penalties.
d. One-off event, not commercially motivated – The Applicant has
two other properties in Liverpool and has correctly obtained
selective licences for those other properties.
e. Good record of maintaining property – The Applicant has
demonstrated a good record for maintaining the Property.
f. Serious medical condition – the Applicant has provided evidence
of a serious medical event and the Tribunal has found that, whilst
the operation was in 2022, it has had a serious ongoing impact on
him including mentally.
g. Steps taken voluntarily to remedy problem – whilst the Applicant
has taken six weeks to submit the application, he has
demonstrated his active engagement during this time.
100. The Respondent’s Policy does not set out a specific % reduction for
mitigating factors. Given that the Respondent applied a 25% discount for
the three mitigating factors it identified, the Tribunal considers that a
total discount in respect of the seven mitigating factors of 50% is
reasonable and appropriate which reduces the penalty from £3,750 to
£1,875.
101. In accordance with the Respondent’s Policy, the Tribunal must review
the penalty and, if necessary, adjust the initial amount arrived at to
ensure it fulfils the general principles in the policy. The Respondent’s
Policy goes on to state that “the civil penalty should meet, in a fair and
proportionate way, the objectives of punishment, deterrence and the
removal of gain derived through the commission of the offence”.
102. The Tribunal agrees with the Respondent’s finding that no economic
benefit was derived from the offence and so no adjustment was made in
that regard.
103. The Tribunal disagrees with the Respondent’s approach in not making
a reduction for an early admission of guilt. There is no evidence that the
Applicant has ever denied his failure to comply with the legal obligation
to obtain the licence and the fact that he has asserted that his personal
circumstances gave rise to a reasonable excuse defence does not distract
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from his acceptance of the breach itself. The Tribunal does not agree with
Mr Prescott’s oral evidence that the only mechanism by which the
Applicant could have made a valid admission of guilt was at the interview
under caution (which the Applicant did not attend) not least because the
interview was after the Applicant had submitted the licence application.
The Tribunal considers that by acknowledging his oversight and telling
the Respondent that he would resolve the issue by applying for the
licence (and then by taking active steps to make the application albeit
slowly) the Applicant did make an early admission. The Tribunal
considers that a reduction of 20% on account of that early admission is
appropriate which reduces the penalty from £1,875 to £1,500.
104. The Tribunal finds that a penalty of £1,500 is significant enough to act
as a punishment to the Applicant as well as a deterrent not just to the
Applicant, but also to other landlords and potential landlords. The
Tribunal consider that the imposition of a penalty of £1,500 meets the
objectives of the Policy in a fair and proportionate way in the
circumstances of this case.
OUTCOME
105. For the reasons explained above, we vary the decision of the
Respondent to impose a financial penalty on the Applicant. We do not
consider that the Respondent’s Policy was properly applied in respect of
the penalty. However, following the Applicant’s appeal to this Tribunal
and a re-hearing of the Respondent’s decision, the Tribunal has
determined that under the Respondent’s Policy the amount of the
penalty should be £1,500. The imposition of such a financial penalty is
appropriate in the circumstances of this case: not only does it reflect the
offending conduct, but it should also have a suitable punitive and
deterrent effect.
106. Accordingly, we vary the Final Notice. The Applicant must therefore
pay a financial penalty of £1,500 to the Respondent.
Signed: J. Hadley
Judge of the First-tier Tribunal
Date: 25 November 2025]