City of Bradford Metropolitan District Council v Hasan Kazi
[2024] EWCA Civ 1037
Hasan Kazi v Bradford Metropolitan District Council
30 October 2023
[2023] UKUT 263 (LC)
Upper Tribunal
A landlord was fined a lot of money for not fixing up his flats. He appealed, arguing that the council was unfair because they'd let him house homeless people in the flats even though they weren't up to code, and that the tenants' bad behavior made it hard to do the repairs. The judge agreed that the council was too harsh, reduced the fine, and said the council's rules for how fines are decided were too strict.
Key Facts
- •Mr. Hasan Kazi, an experienced landlord, appealed civil penalties totaling £49,290.31 imposed by Bradford Metropolitan District Council for housing offences at 2 Laisteridge Lane.
- •The offences included failure to comply with improvement notices (Section 30, Housing Act 2004) for two flats and failure to comply with HMO regulations (Section 234, Housing Act 2004).
- •The Council had previously approved the property for housing a vulnerable individual, but later issued improvement notices.
- •The FTT considered the Council's enforcement policy but applied a restrictive 5% mitigation limit and a 'final determinant' rule that the penalty must not be less than the cost of compliance.
- •Mr. Kazi argued that the Council's actions were inconsistent, that tenant behaviour contributed to the disrepair, and that the totality principle wasn't properly applied.
Legal Principles
Mitigation, totality, and the principle that civil penalties should not allow landlords to profit from non-compliance.
Housing Act 2004, Schedule 13A, paragraph 12; Civil penalties under the Housing and Planning Act 2016, Guidance for Local Housing Authorities (2018); London Borough of Waltham Forest v Marshall [2020] UKUT 35 (LC); Sutton v Norwich City Council [2020] UKUT 90 (LC); Sutton v Norwich City Council [2021] EWCA Civ 20
Public bodies cannot adopt policies that fetter their discretion (R v Port of London Authority ex p Kynoch [1919] 1 KB 176).
R v Port of London Authority ex p Kynoch [1919] 1 KB 176
Appellate tribunals should not interfere with a lower tribunal's exercise of discretion unless the decision is unreasonable or contains an identifiable flaw (Sutton v Norwich City Council [2021] EWCA Civ 20).
Sutton v Norwich City Council [2021] EWCA Civ 20
Totality principle in sentencing: A total sentence should reflect all offending behavior and be just and proportionate. Simply adding individual sentences may not be just.
Sentencing Council's Definitive Guideline on Totality (applied in the civil penalty context)
Outcomes
The Upper Tribunal allowed the appeal and set aside all three civil penalties imposed by the FTT.
The FTT erred by applying the Council's restrictive 5% mitigation limit, the 'final determinant' rule (that the penalty must not be less than the cost of compliance), and by failing to adequately consider mitigation arising from tenant behaviour and the Council's prior approval of the property.
The Upper Tribunal substituted its own decision, imposing a total penalty of £26,500 (£8,250 for each Section 30 offence and £10,000 for the Section 234 offence).
The Tribunal considered the high culpability and medium harm level, applied appropriate mitigation for work completed and tenant contribution, and ensured the penalty did not result in profit for the landlord, while avoiding double-counting.