Siraj Deane v London Borough of Newham

When the First-tier Tribunal considers procedural non-compliance, it must apply its own procedural rules and overriding objective. Civil court principles may assist, but they cannot displace the different emphasis of tribunal procedure, including flexibility and effective participation. Compliance must not become an end in itself.

Where an appeal concerns a financial penalty for an alleged criminal offence, the tribunal should consider whether the prosecuting authority’s evidence is so weak that the case is bound to fail. The merits are generally irrelevant to case management, but that rule does not apply where the merits would justify summary disposal. The tribunal should consider lesser sanctions before striking out an appeal, particularly where the burden of proof rests on the respondent authority.

The London Borough of Newham imposed a £7,500 financial penalty on Siraj Deane under the Housing Act 2004, alleging that he managed an unlicensed HMO. Mr Deane maintained that he had no connection with the property and that his name appeared on a tenancy agreement by mistake.

He appealed to the First-tier Tribunal, which struck out the appeal after he failed to file a further document bundle and then refused reinstatement. The FTT applied the approach in Denton v T H White Limited by reference to the Civil Procedure Rules and treated the merits as irrelevant. The central issue was whether that was a proper exercise of the FTT’s discretion.

1. Appeal allowed. The FTT’s refusal to reinstate the appeal was set aside. The appeal was reinstated, subject to Mr Deane being confined to the documents and explanation supplied with his original notice of appeal.
2. The FTT misdirected itself by applying CPR 3.9 without considering rules 3 and 8 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. Those rules require the FTT to deal with cases fairly and justly and permit a range of responses to non-compliance, including waiving or remedying the requirement and restricting participation. The considerations of efficiency and compliance remain relevant, but cannot be given a status which the FTT Rules do not confer on them.
3. The FTT also misunderstood the principle that merits are generally irrelevant to case-management decisions. The qualification recognised in Global Torch Ltd v Apex Global Management Ltd (No 2) applies where a party’s case is so strong that it would justify summary judgment. In an alleged criminal offence case, a prosecution case bound to fail may be relied on in support of relief from procedural sanctions.
4. The Council bore the criminal burden of proving that Mr Deane was a person managing the HMO. Under sections 263(3) and 262(7) of the Housing Act 2004, that required evidence that he was an owner or lessee and received, or would have received, rent or other payments, subject to the statutory alternative involving an arrangement with another person. The Council’s evidence did not establish those matters and the FTT failed to consider its weakness.
5. Striking out was disproportionate. Much of the requested bundle duplicated material already filed, and some further material was optional. A lesser restriction on participation would have allowed the hearing to proceed while leaving the Council to prove the offence.
6. The FTT was directed to determine the reinstated appeal, or the Upper Tribunal would consider whether the financial penalty could be set aside on the papers after giving the Council 21 days to respond.

• Upper Tribunal (Lands Chamber): Allowed the appeal against the FTT’s refusal to reinstate the appeal, set aside that decision, and reinstated the appeal subject to a limitation on the documents relied upon.
• First-tier Tribunal (Property Chamber): Struck out the appeal on 15 December 2023 for procedural non-compliance and refused reinstatement on 18 December 2023.