Welwyn Hatfield Borough Council v Hongmei Wang

A notice of intent to impose a housing financial penalty must give the recipient enough information to understand the alleged conduct and make informed representations. The assessment is objective and takes account of relevant contextual facts known to the recipient, including material supplied with or before the notice. A notice is not automatically void because its wording is incomplete or imprecise. Here, earlier correspondence, a schedule of works and photographs supplied the necessary detail, so the notices were valid. The appeal was allowed and the outstanding penalty appeals were remitted for rehearing.

The Council imposed two financial penalties on the owner and manager of an HMO for alleged breaches of regulations 4 and 7 of the Management of Houses in Multiple Occupation (England) Regulations 2006. The First-tier Tribunal allowed the respondent’s appeal, holding that the notices of intent did not sufficiently particularise the alleged offences and were invalid.

The Council appealed. The Upper Tribunal considered whether the notices complied with paragraph 3(b) of Schedule 13A to the Housing Act 2004 and, if not, whether inadequate reasons necessarily invalidated the notices and subsequent penalties.

1. Appeal allowed; remittal. The notices of intent were valid. The appeals against the two final notices were remitted to a differently constituted panel of the FTT.
2. Paragraph 3(b) of Schedule 13A required reasons sufficiently clear and accurate to enable the recipient to make written representations. The notice need not use a prescribed form or state every detail in one document. Its adequacy depends on the circumstances and on how a reasonable recipient, with the relevant contextual knowledge, would understand it.
3. The modern approach to statutory procedural defects is to ask what Parliament intended the consequences of non-compliance to be. Proceedings should not be treated as a nullity except in clear cases, particularly where that would defeat the statutory purpose and cause no injustice. A defective notice is therefore not necessarily void. The critical question is whether the requisite information was supplied in good time to enable the recipient fairly to meet the case.
4. Viewed alone, the descriptions of numerous fire safety deficiencies and poor management and disrepair were too vague. In context, however, the respondent had received the inspection findings, a detailed schedule of works and photographs, and had completed the works. A reasonable recipient would have understood which defects the notices referred to and could have made effective representations. The Council did not need to explain why it chose a financial penalty rather than prosecution or another disposal.
5. The Tribunal left open whether an invalid notice could be cured by information supplied only with a final notice or during an FTT rehearing. On remittal, the FTT was directed to confine the allegations to the specified schedule-of-works particulars, disregard the disabled detector heads and untimely test-certificate allegation, and consider the remaining factual and mitigation evidence.

• Upper Tribunal (Lands Chamber): [2024] UKUT 24 (LC) allowed the Council’s appeal against the FTT’s decision and remitted the appeals against the two final notices to a differently constituted FTT panel.
• First-tier Tribunal (Property Chamber): allowed the respondent’s appeal against the two penalties, holding that the notices of intent were invalid.