Council wins appeal over failure by landlord to provide information in response to request sent to him by post but which he did not receive

Newcastle City Council has won an appeal over whether the manager of a property breached the terms of a licence granted to him by the local housing authority, when he failed to provide information in response to a request sent to him by post but which he did not receive.

Granted under section 88 of the Housing Act 2004, the licence permitted Mahmoud Abdallah to manage premises at 29 Gillies Street in Newcastle. 

In Newcastle City Council v Abdallah (HOUSING - CIVIL PENALTY - Landlord failing to comply with licence condition requiring provision of information on demand) [2024] UKUT 140 (LC) Martin Rodger KC, Deputy chamber president of the Upper Tribunal (Lands Chamber), said: “The key question in the appeal is whether that demand [for certain information], which never came to Mr Abdallah's attention, was nevertheless an effective demand for the purpose of the licence condition. 

“If it was, Mr Abdallah's failure to comply with the condition would have been an offence contrary to section 95(2)(b), Housing Act 2004 Act, unless he could prove that he had a reasonable excuse for that failure.”

The FTT had allowed Abdallah's appeal against a financial penalty of £654.66 imposed under section 249A, 2004 Act on account of the section 95 offence, which it was satisfied he had committed.

It found the demand for information had not been sent to Abdallah's last known address - which was held by the council tax department but not the housing team - and so he was not required to comply.

Mr Rodger said the council was “not primarily interested in the recovery of the modest penalty in this case but is more exercised by the wider consequences for its administrative practices of the FTT's apparent conclusion that requests for information made in furtherance of conditions attached to licences granted under the 2004 Act could not safely be sent through the ordinary post, rather than by registered post”. 

Among the licence conditions was a requirement for Abdallah to inform the council within 10 working days of any changes in his address. 

In June 2017 Abdallah moved to a new address in Sleaford, and did not notify Newcastle’s licensing team.

He notified the council online in February 2018 of new tenants of the flat and included his new address. This though was sent to the council tax department, which did not share it with the selective licensing team. 

Newcastle in April 2021 wrote to all licence holders asking for various information but sent this to Abdallah's old address and he did not know of it until a penalty notice was imposed in December 2022.

The FTT found that Abdallah had attempted to contact the council's licensing department about other matters in 2017 by telephone and email but had received no response. 

Newcastle appealed on the grounds that the FTT erred in finding that section 233, Local Government Act 1972 did not apply to the request for the provision of information under the licence conditions. 

It also said the FTT was wrong to decide that Abdallah's last known address for the purposes of section 233 was the address he had notified to the council tax department rather than the address he had given in his licence application and which he had never informed the council's licensing team he had changed.

The council also said the FTT misinterpreted section 7 of the Interpretation Act 1978 and that for the purpose of applying section 233 of the 1972 Act it was irrelevant that the request had not been received by Abdallah.

Mr Rodger said knowledge held by the council tax department “is not to be imputed to the housing department when considering what was Mr Abdallah's last known address. 

“The licensing team satisfied the requirement of due diligence by looking no further than the licence application, which gave the applicant's address at the time he made the application, and at the licence, which required that he notify the licensing team (specifically) of any change of circumstances, including a change of address. 

“The council was entitled to assume, in the absence of any such notification received by the licensing team, that Mr Abdallah still lived at [his previous address].”    

He said the FTT was wrong to find that Abdallah had not been served at his last known address and should have found that he was under a duty to supply the information requested.   

Mr Rodger said that in Bravington the Court of Appeal held that section 233 is intended to allow a local authority “to achieve service regardless of whether the addressee receives, or even learns of, a document”.  

The FTT though decided that because Abdallah had not received the documents service could not be deemed to have taken place. 

He said Abdallah “cannot be treated as never having received the documents sent to him”. 

Mr Rodger concluded: "I am therefore satisfied that the FTT was wrong to find that Mr Abdallah was not properly served.”

He found though that the penalty notice was for a relatively small sum and that the principles which the council sought to establish had been vindicated.

The judge said Newcastle would be given some time to consider whether it wanted the matter remitted to the FTT for it to consider a defence of reasonable excuse.

“If the council indicates that it does not seek remission the parties will be taken to have agreed either that Mr Abdallah had a reasonable excuse and had committed no offence, or that, in the circumstances no penalty was appropriate,” the deputy president said.   

Mark Smulian