Upper Tribunal Clarifies Housing FTT’s Limits on Policy Interpretation

The First Tier Tribunal (FTT) may only review its decision to resolve a matter arising from the grounds of appeal, and in cases involving financial penalties it may not invent a discount outwith the council’s policy.

Waltham Forest LBC (“the Council”) designated its area as subject to additional licensing. Marble Properties (London) Ltd (“the Agent”) was the person managing and/or having control of the subject property, which required to be, but was not, licensed pursuant to the designation. The Council imposed upon the Agent a financial penalty of £12,000, and informed it that if it paid within 28 days the penalty would be further reduced to £9,000. The Agent did not make payment, and instituted an appeal.

The FTT concluded that the appropriate penalty upon application of the Council’s policy (“the Policy”) was £8,000 and that, notwithstanding the Policy not making provision for the same, a discount of £2,000 should be credited. The Council sought permission to appeal. In response, the FTT reviewed its decision in a manner not foreshadowed by the application for permission to appeal; in particular, it concluded that if it was wrong as to its application of the Policy, that policy was “too rigid” and should be departed from.

The Upper Tribunal allowed the Council’s appeal. The FTT had misapplied the Policy: §47. It had not been entitled to invent a discount outwith the Policy: §54. It had not been entitled to review its decision for reasons extraneous to the grounds of appeal: §69. It had in any event wrongly concluded that the Policy was “too rigid”: §90. The FTT is not the appropriate forum in which to challenge policy: §§53, 90. The penalty imposed by the Council was reinstated.

Riccardo Calzavara, from Cornerstone Chambers was instructed by Simon Kiely of Sharpe Pritchard LLP for Waltham Forest LBC.