Council appeal succeeds after Upper Tribunal finds landlord questioned during First Tier Tribunal hearing was wrong person

The Upper Tribunal has remitted a decision concerning the penalty for an unlicensed landlord to the First Tier Tribunal after it became apparent that the man thought to be the landlord in the First Tier Tribunal hearing was, in fact, the landlord's father.

Upper Tribunal Judge Elizabeth Cooke said the revelation was "most surprising", adding that technically the council's appeal succeeded as the decision was set aside even though it was set aside for reasons unrelated to the grounds.

The case heard by the FTT revolved around a disputed civil penalty of £4,800 the council had issued due to the landlord owning an unlicensed rental property.

At the hearing, the FTT was under the impression that the landlord was present and was represented by his brother, Arfan Rahman.

During the course of the hearing, it came to light that the landlord owned at least four properties in London and "several in Birmingham".

As a result, the council's barrister, Riccardo Calzavara of Cornerstone Barristers, argued that a higher penalty should now be imposed, as the council's policy states that where a landlord controls or owns "a significant property portfolio", the failure to licence is viewed as a "band 4 offence" and attracts a civil penalty of £15,000 or above.

But the FTT declined to increase the penalty, saying: "Whilst the Tribunal accepted that it had the power to increase the penalty imposed, it decided that it would not be appropriate to do so on this occasion. It considered that as the Appellant was unrepresented it would not be fair to consider such a course without giving him time to consider his position and an opportunity to take advice."

The council later appealed the decision to the Upper Tribunal, raising the following two issues:

1. Whether the FTT has power to increase the penalty imposed by a local housing authority on the basis of further information provided by the appellant during the hearing; and
2. If the FTT has power to increase the penalty, whether, having regard to the policy of the local housing authority, the tribunal in this case was nevertheless entitled to decline to do so for the reasons it gave.

The judge said the answer to the first issue is yes as "the FTT itself accepted, the FTT does have the power to increase the penalty imposed by a local housing authority on the basis of further information provided by the appellant during the hearing.”

Although she added that: “That is not to say that it was bound to do so."

The identity of the person thought to be the landlord in the FTT hearing was first questioned when the judge was considering the second issue.

At both the FTT and UT hearings, Arfan Rahman was said to be representing his brother, Adil Rahman, the landlord.

However, at the UT hearing, Calzavara raised concerns that the respondent in attendance was not the same person he had cross-examined during the FTT hearing.

It then became apparent that the person who was thought to be the landlord at the FTT hearing was the landlord's father.

When questioned on the mix-up, Arfan Rahman said he did not know why he had not said to the FTT that the man he was with was not the respondent.

He added that neither he nor his father had been asked to identify themselves and that his father had not been sworn and was not asked to confirm that the signature on the form of application to the FTT was his.

"That was certainly most surprising news," the Upper Tribunal judge said.

"It is clear on reading the FTT's decision that the FTT thought the gentleman with Mr Arfan Rahman was the person appealing the civil penalty, referred to in the FTT's judgment as 'the Appellant' and who the FTT stated in its decision was present."

The judge decided to set aside the FTT's decision on the level of the penalty because it appeared to be made under a misapprehension as to the identity of the person who gave evidence to the FTT relevant to the level of the financial penalty.

She remitted the matter to the FTT for a fresh determination of the level of the penalty to be imposed, but the FTT's finding that it was satisfied beyond reasonable doubt that an offence had been committed remains in place.

She noted that: "Technically the appeal succeeds, in the sense that the FTT's decision is set aside but it is important to note that the decision is set aside for reasons unrelated to the grounds of appeal."

Adam Carey