Hasan Kazi v Bradford Metropolitan District Council

On an appeal against civil penalties for housing offences, the First-tier Tribunal must give special regard to the local authority’s enforcement policy but must exercise its own judgment. A policy which limits every mitigating factor to a fixed 5% reduction unlawfully fetters discretion. A policy requiring the cost of remedial works to be treated as an invariable minimum penalty is irrational where the landlord remains obliged to carry out those works and has obtained no corresponding financial benefit. Tenant-caused or tenant-exacerbated disrepair may provide a defence or significant mitigation. The totality principle requires the aggregate penalties to be just and proportionate, but does not require a single penalty for separate offences concerning identical works in different flats.

Mr Hasan Kazi appealed against the First-tier Tribunal’s decision upholding three civil penalties imposed by Bradford Metropolitan District Council for failing to comply with improvement notices and HMO management regulations at a property containing eight flats. The penalties totalled £49,290.31.

The appeal concerned the treatment of mitigation arising from difficult tenants, the legality of the Council’s fixed-percentage mitigation policy and minimum-penalty policy, and the application of totality to separate offences concerning two flats. The Upper Tribunal also had to determine the appropriate penalties on the rehearing.

1. Appeal allowed. The FTT had exceeded the generous bounds of its discretion by applying the Council’s policy that each mitigating factor could produce only a 5% reduction. That policy fettered discretion, and the FTT unlawfully fettered its own discretion by adopting it.
2. Tenant behaviour which causes or exacerbates disrepair, or prevents reasonable access for repairs, may in some cases provide a defence. Where it does not provide a defence, it may constitute very significant mitigation. The FTT should consider mitigation relevant to all items of work covered by a notice, not merely to items directly caused by tenants.
3. The Council’s policy that a penalty must never be less than the cost of complying with the legislation did not follow from the objective of removing financial benefit. Where the landlord remains obliged to carry out the works, the landlord has not necessarily saved that cost. Treating it as an invariable minimum was irrational and rendered other mitigating and aggravating factors pointless. The policy also unlawfully fettered discretion.
4. The FTT had correctly approached the appeal as a rehearing and had to make its own decision on penalty. The Tribunal therefore substituted its own penalties: £8,250 for each section 30 offence and £10,000 for the section 234 offence.
5. Totality requires the aggregate penalty for multiple offences to be just and proportionate and requires care to avoid double counting. It does not itself require one penalty where separate identical offences concern different flats and different tenants. After giving proper weight to mitigation and addressing possible double counting, the aggregate of £26,500 was just and proportionate. No further reduction was made.

• Upper Tribunal (Lands Chamber): allowed the appeal against the First-tier Tribunal’s penalty decision, set aside the three penalties and substituted penalties totalling £26,500.
• First-tier Tribunal (Property Chamber): upheld the offences and imposed penalties totalling £49,290.31.