Peter Phits Banfield v Swale Borough Council

Failure to comply with an improvement notice constitutes an offence unless the person has a reasonable excuse. Difficulties caused by tenants, disagreement with findings about defective facilities, or an intention to obtain possession do not necessarily establish that defence. The excuse must explain the non-compliance as a whole. An appellate tribunal may uphold a decision which is inadequately explained where the evidence makes the conclusion inevitable, the reasoning is readily comprehensible, and remittal would serve no useful purpose. Mitigating circumstances may justify a substantial reduction in a financial penalty without amounting to a complete defence.

Mr Banfield appealed to the Upper Tribunal against a First-tier Tribunal decision concerning a financial penalty imposed by Swale Borough Council. The penalty followed his failure to comply with an improvement notice concerning hazards in a rented flat. The First-tier Tribunal found partial compliance but rejected his claim that tenants’ refusal of access, the operation of the heating system, lease restrictions on installing extractor fans, and the shower’s water pressure gave him a reasonable excuse. It reduced the penalty to £3,000 to reflect mitigation. The central issue was whether the First-tier Tribunal had adequately explained its rejection of the reasonable-excuse defence and its assessment of the evidence.

1. Appeal dismissed. The First-tier Tribunal’s decision was upheld.
2. Under Part 1 of the Housing Act 2004, failure to comply with an improvement notice without a reasonable excuse is an offence. The appellant’s intention to obtain possession under a section 21 notice did not relieve him of the obligation to comply with the improvement notice.
3. The First-tier Tribunal’s reasoning on reasonable excuse was brief and did not address every difficulty raised by the appellant. Nevertheless, the Upper Tribunal would not set the decision aside where the evidence made the conclusion inevitable and readily comprehensible to the parties. There would be no useful purpose in remitting the matter merely for fuller explanation.
4. The evidence supported the findings that the storage-heating system was defective, the shower was non-functional, and the tenants’ refusal of access explained only part of the outstanding work. It did not explain the failure to replace the heating or shower, or to obtain a Fire Risk Assessment. The unresolved heating defect contributed to a Category 1 hazard.
5. The mitigation relied upon by the First-tier Tribunal, including partial compliance, tenant obstruction and tenant-related problems, could properly reduce the penalty without establishing a reasonable excuse. The reduction to £3,000 was an appropriate response to the evidence.

• Upper Tribunal (Lands Chamber): Appeal dismissed and the First-tier Tribunal’s decision upheld.
• First-tier Tribunal (Property Chamber): Found failure to comply with the improvement notice without a reasonable excuse and reduced the financial penalty to £3,000.