London Borough of Waltham Forest v Marble Properties (London) Limited

On a rehearing appeal against a housing civil penalty, the First-tier Tribunal must apply the local authority’s policy according to its true meaning. Where a policy fixes an offence within a penalty band, the decision-maker should assess the appropriate figure within that band by reference to all relevant factors, including mitigation. It may depart below the band only where the policy permits exceptional circumstances.

The Tribunal’s jurisdiction concerns the penalty stated in the final notice. It does not extend to granting a discount for prompt payment after an appeal. The First-tier Tribunal’s review power under Tribunals, Courts and Enforcement Act 2007 is confined to a likely successful appeal ground and cannot be used to introduce a new, defensive reason for its decision.

Marble Properties (London) Limited managed an HMO without the additional licence required by the Council’s scheme. The Council imposed a civil penalty of £12,000 under Housing Act 2004.

The First-tier Tribunal reduced the penalty to £6,000. It interpreted the Council’s enforcement policy as permitting mitigation to move the offence from band 4 to band 3, and granted a further 20% reduction to reflect a prompt-payment discount. When granting permission to appeal, it also added an alternative reason that the Council’s construction of the policy was too rigid.

The Council appealed the First-tier Tribunal’s decisions and sought judicial review of its use of the statutory review power. The central issues were the proper construction of the penalty policy, the Tribunal’s power to allow a further discount, and whether the review could be challenged through an adequate appeal remedy.

1. Appeal allowed; judicial-review permission refused. The Council’s £12,000 penalty was reinstated.

2. The First-tier Tribunal misread the enforcement policy. For a professional landlord or agent committing this licensing offence, the policy placed the offence in band 4, ordinarily requiring a penalty between £15,000 and £19,999. It did not prescribe a starting figure at the bottom of the band from which the penalty could only rise. Instead, the decision-maker must select the appropriate figure within the applicable band by considering the seven relevant factors, including features relevant to culpability and harm which may mitigate the penalty. A penalty below the band requires exceptional circumstances.

3. The First-tier Tribunal therefore erred by treating the case as capable of falling in either band 3 or band 4 and by reducing the pre-discount figure to £10,000 without finding exceptional circumstances. Its alternative conclusion that the policy, or its application, was too rigid also failed. It had not been argued, was unsupported by reasons, and rested on the same erroneous construction.

4. The further 20% reduction was outside the First-tier Tribunal’s jurisdiction. Under paragraph 10 of Schedule 13A to the Housing Act 2004, the appeal concerned the penalty in the final notice. A voluntary prompt-payment discount is a matter between the Council and its debtor, not an element of the statutory penalty which the Tribunal may vary.

5. The First-tier Tribunal’s purported review was illegitimate. It believed its original construction was correct, so it could not regard the appeal as likely to succeed. It then introduced a new reason not raised by either party, not an amendment explaining the reasons which actually led to the original decision. That was procedurally unfair and contrary to the limited review power in section 9 of the Tribunals, Courts and Enforcement Act 2007.

6. Nevertheless, judicial review was unnecessary. Although the decision to review was excluded from appeal, the consequential decision to amend reasons could be challenged on appeal. That adequate alternative remedy required refusal of permission for judicial review.

• Upper Tribunal (Lands Chamber): Allowed the Council’s appeal against the First-tier Tribunal’s first and second decisions, and refused permission to bring judicial-review proceedings: [2025] UKUT 2 (LC).
• First-tier Tribunal (Property Chamber): By a decision issued on 15 January 2024, reduced the civil penalty from £12,000 to £6,000. Later decisions added alternative reasoning while granting permission to appeal.