Aaron Shorr & Anor v London Borough of Camden

When determining financial penalties for several housing offences, the decision-maker must assess each offender separately and then apply the totality principle to that offender’s penalties. The combined penalty must reflect all offending behaviour and remain just and proportionate. Penalties imposed on different offenders must not be aggregated when assessing proportionality.

A local authority’s enforcement policy must be applied according to its substance. Ignorance of a licensing scheme may ordinarily favour a warning, but serious risks to tenants may justify a financial penalty without prior warning. Joint ownership does not automatically establish equal responsibility for letting, management or defects.

Camden Council imposed eight financial penalties on Aaron Shorr and Hyeon Jeong Ro, who jointly owned a flat operated as an unlicensed HMO. Each appellant received penalties for the licensing offence and breaches of the Management of Houses in Multiple Occupation (England) Regulations 2006.

The First-tier Tribunal reduced the penalties to £8,000 for Mr Shorr and £13,000 for Ms Ro. The appellants appealed, challenging the application of the Council’s enforcement policy, the treatment of their different responsibilities, alleged double counting, and the proportionality of the total penalties.

1. Appeal allowed in part. The penalties imposed on Mr Shorr were set aside and his case was redetermined. The penalties imposed on Ms Ro were reduced to £8,000. No financial penalty was imposed on Mr Shorr.
2. The appellate function is restricted. Under [2021] EWCA Civ 20, interference requires an unreasonable decision or an identifiable flaw in reasoning, such as a failure to take account of a material factor.
3. The Council’s policy, read as a whole, ordinarily favoured a warning for small-portfolio landlords unaware of the licensing scheme. However, serious deficiencies creating risks to tenant safety could justify a financial penalty without prior warning. The FTT had applied the policy correctly in Ms Ro’s case. It had not applied it correctly to Mr Shorr because it failed to distinguish his limited involvement and did not consider whether a warning was appropriate for him.
4. Under section 249A(3) of the Housing Act 2004, the prohibition on more than one penalty for the same conduct applies where the essential elements of two offences overlap. Managing an unlicensed HMO and failing to maintain adequate safety standards were different conduct, so separate penalties were legally permissible. Nevertheless, the totality principle required the decision-maker to avoid double counting or double punishment.
5. Each offender’s penalties had to be assessed separately. It was impermissible to aggregate the penalties imposed on Mr Shorr and Ms Ro and ask whether the combined sum was proportionate. The relevant aggregation was the total penalty imposed on each offender for that offender’s several offences.
6. Applying the totality principle, the licensing penalty against Ms Ro was reduced to £3,000, the £5,000 penalty for the regulation 4 breach was retained, and no separate penalty was imposed for the regulation 7 breach. The regulation 3 breach was trivial and warranted no additional penalty. Mr Shorr’s limited role, absence of contractual dealings with the tenants, and lack of active responsibility meant that enforcement objectives were met by the penalties imposed on Ms Ro.

• First-tier Tribunal (Property Chamber): On 1 September 2023, reduced the penalties to £8,000 for Mr Shorr and £13,000 for Ms Ro.
• Upper Tribunal (Lands Chamber): Set aside Mr Shorr’s penalties, substituted penalties totalling £8,000 for Ms Ro, and imposed no financial penalty on Mr Shorr.