London Borough of Waltham Forest v Adil Rahman

An appeal to the First-tier Tribunal against a housing civil penalty is a rehearing. The Tribunal may increase or reduce the penalty on the basis of facts established during the appeal, including facts of which the local housing authority was unaware. It must start from the authority’s enforcement policy, give that policy considerable weight, and consider whether its objectives would be met by departing from it. The policy is not binding and the Tribunal retains responsibility for deciding the penalty. Where the identity of the person who gave material evidence before the First-tier Tribunal is subsequently called into question, and the issue cannot safely be determined on appeal, the penalty decision may be set aside for serious procedural irregularity and remitted for rehearing.

The London Borough of Waltham Forest imposed a civil penalty on Adil Rahman for failing to licence rented property under the selective licensing provisions of the Housing Act 2004. Rahman appealed to the First-tier Tribunal, which upheld the finding that the offence had been committed but declined to increase the penalty after evidence suggested that he controlled more properties than the authority had known about.

The local authority appealed. The appeal raised whether the First-tier Tribunal had power to increase the penalty on the basis of further evidence given at the hearing and whether it was entitled to decline to do so by reference to the authority’s enforcement policy. At the Upper Tribunal hearing, a further issue emerged concerning whether the person who had given evidence before the First-tier Tribunal was in fact Rahman.

1. Appeal technically allowed. The First-tier Tribunal’s decision concerning the level of the penalty was set aside and the matter was remitted for a fresh determination. The finding that the offence had been committed beyond reasonable doubt remained in place. The decision was set aside for a reason unrelated to the grounds of appeal.

2. The appeal under paragraph 10 of Schedule 13A to the Housing Act 2004 is a rehearing. The First-tier Tribunal may confirm, vary or cancel the final notice and may determine the appeal by reference to matters of which the local housing authority was unaware. Its power extends both to increasing and reducing the penalty.

3. The Tribunal must start from the local housing authority’s enforcement policy. The landlord bears the burden of persuading it to depart from that policy. The Tribunal must consider whether the policy’s objectives, including consistency between offenders, would be met if it departed from the policy. The policy is not binding, and the circumstances in which departure is justified cannot be exhaustively defined. These principles applied whether the proposed penalty was higher or lower.

4. The Upper Tribunal could not safely determine the appeal because it was uncertain whether the person who gave material evidence before the First-tier Tribunal was the respondent. The First-tier Tribunal had proceeded on the understanding that he was present and had given evidence. The issue could not be resolved by further fact-finding on the review appeal. The penalty decision was therefore procedurally unsafe.

5. On remission, Adil Rahman, Arfan Rahman and Khalil Rahman were each required to provide witness statements identifying properties owned by them, exhibiting title evidence, and to attend the rehearing with photographic identification. The costs application concerning the First-tier Tribunal hearing was reserved for further submissions.

• First-tier Tribunal (Property Chamber): by decision dated 31 August 2022, found the offence proved beyond reasonable doubt, declined to increase the penalty, and otherwise determined the respondent’s appeal against the civil penalty.
• Upper Tribunal (Lands Chamber): set aside the First-tier Tribunal’s decision as to the level of penalty and remitted that issue for fresh determination.