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The case of Knapp v Bristol City Council [2023] UKUT 118 (LC) hot of the rogue landlords’ case law production line is the first time a banning order determination by a First Tier Tribunal has been reviewed by the Upper Tribunal.

The case sets out some important principles to apply to such cases and as such should be of use to both landlord advisers and to Councils.

The case at its heart confirms three points in particular:

1. The Tribunal is a specialist tribunal and will make its own determination of how serious a breach is following a magistrates’ court conviction.

43. In my judgment there was nothing inappropriate in the way the FTT made its assessment. As a specialist tribunal dealing regularly with housing enforcement cases it is to be expected that the FTT panel (and the panel in this case was particularly experienced) would have come across many examples of fines imposed by magistrates for housing offences. Making use of that experience to calibrate the offences in this case on a scale of seriousness was part of the FTT’s everyday function. Both parties limited their observations on the level of the fines 11 to bare assertions, and neither advanced any evidence or referred to any sentencing guidelines or to the levels of fines imposed for other offences. In those circumstances there was little the FTT could do other than explain that, based on its own experience, the fines were at the high end for housing offences. That did not involve reliance on specific evidence which had not been referred to at the hearing, nor was it a fact-finding determination, either of which would have required that the parties be given an opportunity to comment. Rather, it was an example of a specialist tribunal making use of its general (rather than specific) knowledge and expertise accumulated in determining similar cases and deploying it quite appropriately to come to a judgment on an issue in dispute.

2. Complaining about convictions in the magistrates following a guilty plea at the Tribunal is as one can predict a complete exercise in futility. The Tribunal is not a “blank canvas” to relitigate matters already dealt with even in a banning order case.

57. Fourthly, the proposition which the FTT rejected was an extreme one, namely, that no weight whatsoever should be given to the sentence imposed and that it should in effect “reopen the case before the magistrates”. In my judgment the FTT was right not to entertain the invitation to begin with a blank canvass and assess for itself whether the offences were serious. The appellant’s evidence sought to place the blame for her contraventions of the HMO Management Regulations on other people and circumstances (the tenants occupying the HMOs, the quality of her contractors’ workmanship, the difficult of obtaining contractors due to Brexit and the Covid pandemic, and on advice given by the Council itself). Any of those matters could have provided grounds for the statutory defence of reasonable excuse and a submission to the magistrates that no offences had been committed at all. The time to determine whether the elements of the offence were proven was at the criminal trial, not when the FTT came to consider the seriousness of the offences.

3. The Court is not limited to the section 16(4) factors for the making of a banning order.

Mr Auld next argued that the FTT had been wrong to take into account the appellant’s track record of failing to implement proposals for improving the standard of management of her properties which she had made in order to buy off earlier threats of enforcement action. This ground of appeal is manifestly hopeless. Section 16(4) contains a non-exhaustive list of matters which the FTT may take into consideration. Three of those matters relate directly to the conduct of the people concerned and to enforcement action taken against them. If relevant evidence is available, it is obviously relevant for the FTT to consider what any previous dealings with a local housing authority suggests about a landlord’s willingness to comply with her legal responsibilities. In this case the FTT was therefore entitled to have regard to the appellant’s history of failing to comply with promises she had made (as when she had agreed to hand the management of her properties over to BPP but was then found to have by-passed and ignored them).

4. The guidance in this case will not stop landlord defending these orders. The orders criminalise their job and often sole source of income. Landlords will want to contest them. What this case will do is narrow down some of the arguments that can be deployed shutting down some of the more esoteric contentions that could be made. It will also firm up the specialist role of the Tribunal in these matters to assess whether a banning order ought to be made.

Julian Hunt and the Freemans team has been defending landlords for over a decade. Contact us if you are facing a banning order or other HMO issue.

Expert advice is the best way to find out whether an action you have taken plan to take might amount to an offence, and what the consequences of that might be. Freemans solicitors are a leading provider of Rent Repayment Order and HMO advice and our experienced team will be happy to help with your enquiry. We can advise on whether a property counts as a converted block of flats HMO and what steps you might be able to take to change this.

How can we help?

Contact Michael Field, Karol Hart or Julian Hunt in our Crime Team on 020 7935 3522 or crimelawyers@freemanssolicitors.net or in an emergency please call our 24/7 number 07973 259382 and let us help. We can advise on investigations, diversion from prosecution, prosecutions of HMO Offences and ancillary matters such a Rent Repayment Orders.

Whatever your personal circumstances the above is only a guide and we would advise you to contact us to obtain definitive advice as you will appreciate that each person’s circumstances are unique to them.

 

 

 

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