Lystra Dorval v Tendring District Council

On an appeal against financial penalties for housing offences, the First-tier Tribunal must make its own assessment of the appropriate penalty while giving due deference to the local housing authority’s published policy. It must explain, with adequate reasons, how it has assessed culpability and harm under that policy.

A table stating scores, penalty ranges and amounts without explaining the evidential or evaluative basis for the scores does not provide sufficient reasons. Where the appellate tribunal cannot safely remake the penalty decision because the evidence before the First-tier Tribunal is incomplete or unavailable, the appropriate course is to set aside the penalty assessment and remit it for rehearing.

Mrs Lystra Dorval appealed against the First-tier Tribunal’s determination of financial penalties imposed by Tendring District Council. The penalties concerned ten contraventions of the Management of Houses in Multiple Occupation (England) Regulations 2006 at two licensed HMOs.

The First-tier Tribunal found the offences proved beyond reasonable doubt. Those findings were not appealed. It reduced the total penalties from £90,000 to £70,500, using the council’s policy to assess culpability, harm and penalty ranges.

Permission to appeal was granted on the question whether the First-tier Tribunal had made, and adequately explained, its own assessments of harm when fixing the penalties.

1. Appeal allowed in part. The Upper Tribunal set aside the First-tier Tribunal’s decisions on the amount of the financial penalties and remitted that issue for rehearing. The unappealed findings that Mrs Dorval committed the ten offences remained in force.

2. The First-tier Tribunal was required to determine the penalties for itself, rather than merely review the council’s decision, while giving due deference to the council’s policy: Sutton v Norwich City Council [2020] UKUT 90 (LC) and London Borough of Waltham Forest v Marshall [2020] UKUT 035 (LC).

3. Its decision did not meet that standard. It gave only a sketch of the policy and did not identify the policy’s verbal descriptions of culpability and harm. Its table then recorded assessments of culpability and harm, scores and penalties without explaining why each assessment was made. The basis of the assessments was therefore not apparent.

4. The First-tier Tribunal’s later assertion, when refusing permission to appeal, that it had relied on its expertise did not supply the missing reasons. If it relied at all on the housing health and safety rating assessments, it should have said so and recorded evidence explaining the meaning of those materials.

5. The Upper Tribunal could not safely substitute its own penalty decision. A rehearing had not been possible and the Tribunal lacked much of the oral evidence before the First-tier Tribunal. The council’s additional explanatory document was neither verified by witness evidence nor admitted as fresh evidence; the criteria in Ladd v Marshall [1954] EWCA Civ 1 appeared not to be met. The rehearing was directed to be before a different First-tier Tribunal panel.

• Upper Tribunal (Lands Chamber): Allowed the appeal insofar as it concerned the level of the financial penalties. Set aside that assessment and remitted it to a differently constituted First-tier Tribunal.
• First-tier Tribunal (Property Chamber): Found ten offences under the Management of Houses in Multiple Occupation (England) Regulations 2006 proved and reduced the total financial penalties from £90,000 to £70,500.