Ali Shan v Nottingham City Council

I have conducted a hearing by CVP with the agreement of the parties. I have considered an open bundle of documents of 71 pages. I have heard submissions from Mrs Metcalfe and Mr Thomas and heard oral evidence from Mr Shan and Mr Ahmed, his son.

The appeal was listed at 10.00am. The link and instructions for joining the hearing were sent to Mr Shan at the email address he provided on 25 April 2024. When Mr Shan did not join the hearing the clerk telephoned him and Mr Shan stated that he did not know about the hearing. At 10.08 am an email was received from Ms Ferzana Shan, Mr Shan’s daughter and appointed representative, asking for the hearing to be adjourned because her brother had not turned up to assist Mr Shan. Ms Shan gave no reason why she was unable to attend as Mr Shan’s appointed representative. At 10.40 am Mr Shan joined the hearing by CVP with his son, Mr Ayaz Ahmed.

The Respondent is the enforcing authority. Mr Shan is the landlord of 152a Alfreton Road, Nottingham, NG7 3NS (“the Property”).

The Respondent issued a PN dated 27 September 2023 pursuant to regulations 38 and 39 of the Energy Efficiency (Private Rented Property)(England and Wales) Regulations 2015 (“the Regulations”) (pages 3 to 10).

The PN stated that the Respondent was satisfied that Mr Shan, the landlord, was in breach of regulation 37(4)(a) in failing to comply with a compliance notice (“CN”) served in respect of the Property. A FP of £1200 was imposed.

Where a landlord has failed to comply with a CN an Authority may impose a FP of up to £2,000 pursuant to Regulations 40(5) and may impose a publication penalty.

The Respondent served a CN on Mr Shan dated 25 January 2023 which required actions to be undertaken by 3 March 2023.

Mr Shan failed to supply this information/documentation to the Respondent.

The Respondent undertook a review of the PN on 24 November 2023 (pages 11 to 14) and decided to uphold the FP of £1,200.

Regulation 43 of the Regulations provides that if, after a review, a PN is confirmed by the enforcement authority, a landlord may appeal to the First-tier Tribunal on the grounds that—

Regulation 44 provides that the bringing of an appeal suspends the PN taking effect pending determination or withdrawal of the appal and the tribunal may quash the PN or affirm the PN whether in its original form or with such modifications as it sees fit.

Ms Ferzana Shan, the appointed representative on behalf of Mr Shan, put forward the following grounds of appeal:

The Respondent put forward the following points:

At the hearing Mr Ahmed and Mr Shan repeated the grounds put forward in the notice of appeal that the PN should be quashed because Mr Shan did not receive the CN. They said that it was likely that the CN was delivered in error to 18 Darley Avenue. Darley Avenue and Darley Road are one road. Mr Shan has received mail for 18 Darley Avenue so it is likely his mail was delivered to 18 Darley Avenue.

Mr Thomas, on behalf of the Respondent, submitted that service of the CN and PN was valid and that as long as I was satisfied that the CN was properly posted the Respondent should have the benefit of the statutory presumption of service under the 1978 Act.

Mr Ahmed and Mr Shan argued that Mr Shan had incurred considerable expense and had gone beyond the minimum because he liked to maintain a good standard in the Property.

Mr Shan told me that he is used to doing things for himself and dealing with builders and the updating of his properties. He has been in and out of hospital but has done his best to keep up to date and tried to apply the law correctly.

Mr Ahmed and Mr Shan stated that the new double glazing windows and the new door were fitted in March or April 2023 and Mr Shan had decided to do this because the builders told him to do so and it was not in response to the CN. The Respondent sought to rely on the report of the officer who visited the Property on 16 June 2023 and reported that the windows were wooden framed as recorded in the EPC dated 27 August 2013 and that the UPVC door and UPVC windows were only seen at the visit on 15 September 2023.

Mr Ahmed argued that there was no reason for his father to lie and that he spent whatever was required on the Property. He as an elderly disabled person who had always done what he had to do to comply with the legislative requirements.

Mr Ahmed and Mr Shan argued that the Respondent had failed in its statutory duty because it was on notice that Mr Shan had health problems but failed to ask Mr Shan what reasonable adjustments he required and failed to provide any reasonable adjustments. The Respondent has a strategy which it did not follow as did not accommodate Mr Shan’s disabilities. Mr Thomas stated that Mr Shan first indicated he had disabilities during the telephone call on 28 September 2023 but he has not stated what reasonable adjustments he requires and his health problems have not stopped him running his business as a landlord and operating in the private renting sector for many years. Mr Shan should have been aware of his legislative responsibilities.

Mr Thomas argued that the terms of the telephone conversation of 28 September 2023 suggested that Mr Shan had received the CN when he indicated the work had already started and Mr Shan had given no other reasonable explanation for starting the work at that time. It was unlikely that he would have started the work unless he had sight of the CN.

I find that Mr Shan is 76 years of age and has been a landlord for 50 years. He is the landlord of the Property and one other property. He had read the papers, was mentally lucid and assisted during the hearing by his son. I considered it was in the interests of justice to proceed with the CVP hearing notwithstanding that Mr Shan did not have legal representation.

I find that Mr Shan at all material dates was a sole trader. He has always been used to doing things for himself including dealing with correspondence, paperwork, doing his accounts and dealing with builders and the maintenance of his properties. He has no cognitive impairment or intellectual restrictions other than a bit of a memory problem. He has a number of physical disabilities. He lost his right arm through an accident in 1974. He was right handed but since the accident has written with his left hand and managed all things with his left hand. Mr Shan had both his hips replaced. He has a problem with his shoulder, both his knees are arthritic and he has kidney problems. In October 2023 his wife was recovering from knee surgery (page 71). His physical disabilities do not prevent him from running his business with only occasional help from his family.

I find that having been a landlord for 50 years it is reasonable to expect Mr Shan to be aware of the legislative obligations on him as a landlord, keep himself up to date and ensure he ran his business in accordance with the legislation.

I find that the onus was on Mr Shan to ensure he complied with the legislation and he failed to do so. There is an expectation that Mr Shan would be proactive in assessing the Property to ensure it was compliant with the Regulations and to implement improvements where the Property is non-compliant.

I find that there are no grounds to reduce the FP further due to Mr Shan’s age or disabilities, both physical and mental. His age and disabilities did not prevent him from operating a business as a landlord and his age and disabilities do not excuse him from complying with his legislative responsibilities.

Mr Ahmed and Mr Shan asserted that Mr Shan did not receive the CN and it was probably delivered in error to 18 Darley Avenue. Darley Avenue diverges into Darley Road are part of one continuous road. The postcode for 18 Darley Avenue is HG7 5NQ and the postcode for Mr Shan’s address is NG7 5NS. Mr Shan said he had received mail addressed to 18 Darley Avenue so it is likely his mail was delivered to 18 Darley Avenue. Mr Shan in the notice of appeal included Bobbers Mill in his address (page 18). I find that this addition was of no significance because Darley Avenue and Darley Road both come within the Bobbins Mill area.

I find on the basis of the evidence that the Respondent sent the CN dated 25 January 2023 by Royal Mail post to Mr Shan’s home address. I find it likely that Mr Shan received the CN and failed to act on it.

Regulation 37(4)(a) provides that a landlord must comply with a CN. I find Mr Shan failed to comply with the CN by 3 March 2023 as required and there were grounds for the Respondent to issue a PN on the basis that Mr Shan was in breach of regulation 37(4)(a).

I find that the service of the CN and PN complied with regulation 3 of the Regulations. I attach weight to the argument of the Respondent’s arguments in relation to service.

I do not attach weight to Mr Ahmed and Mr Shan’s evidence and the assertions that Mr Shan did not receive the CN. The chronology of events does not support the proposition that Mr Shan did not receive the CN. The CN was issued on 25 January 2023. Mr Shan informed Mr Thomas on the telephone on 29 September 2023 that new windows and doors had been fitted at the Property. The FN was issued on 27 September 2023. The new windows and door had been fitted between 16 June 2023 and 15 September 2023 which are recorded dates of visits to the Property by an officer on behalf of the Respondent. Mr Ahmed and Mr Shan could provide no reasonable explanation for Mr Shan starting energy efficiency improvements at the Property after 16 June 2023. In the absence of any other likely explanation it is likely that Mr Shan commenced work in response to the CN.

The evidence of Mr Ahmed and Mr Shan was unreliable. They told me that the new windows had been fitted in March/April 2023 but this was not correct as the old wooden framed windows were observed on 16 June 2023 when the Property was visited by an officer of the Respondent.

Mr Shan has a history of not responding to the Respondent when asked to do so. The Respondent wrote to Mr Shan on 11 October 2022 informing him of the legislative responsibilities in relation to the Property (pages 50 and 51). Mr Shan did not respond. The Respondent wrote to Mr Shan on 9 November 2022 again informing him of the legislative responsibilities (pages 52 and 53). Mr Shan did not respond.

The tenants of the Property have been in occupation since April 2020. Mr Shan was informed by the Respondent in a letter dated 11 October 2022 that steps were being taken to enforce the MEES. Since 1 April 2020 all privately rented properties must achieve a minimum EPC rating of E before being let. The EPC certificate dated 27 August 2013 (pages 41 to 49) had a rating of F and stated clearly the rules on letting the Property. It stated that the Property had an energy rating of F and could not be let unless an exemption had been registered. This notice was clear and Mr Shan did not act on it.

Mr Shan would have been aware of the EPC certificate of 27 August 2013 and the notice it contained on letting the Property when he entered an agreement to let to tenants in April 2020. He chose to ignore the notice in the EPC certificate and failed to complete the work necessary to obtain a complaint EPC certificate until 20 December 2023. He could give me no explanation as to why he decided to commence work after June 2023. I find it highly likely that he commenced the work in response to the CN. I reject his assertion that he did not receive the CN.

I have attached weight to the report that an officer of the Respondent visited the Property on 16 June 2023 and noted that the windows were of a wooden framed, single glazed type as identified on the EPC dated 27 August 2013. An officer of the Respondent attended the Property on 15 September 2023 and noted that the windows and front door had been replaced for a UPCV type door and UPVC window with double glazing.

I find that the Respondent did not fail in its statutory duty to provide reasonable adjustments. I find that the Respondent did not fail to accommodate Mr Shan’s disabilities. I asked Mr Ahmed and Mr Shan what reasonable adjustments he would have required or what reasonable adjustments would have assisted him. They were unable to identify any reasonable adjustments which could have been provided, that would have assisted him and confirmed that Mr Shan did not request any reasonable adjustments. I find that the Respondent was not at fault in the dealings with Mr Shan on the grounds that although he was 76 years of age and had physical problems he was able to run his business as a sole trader landlord supervising two properties and managing the financial side of the business himself. He only occasionally sought help from his family and was unable to identify any reasonable adjustments which would be of assistance to him. There is no reason why he could not have asked for reasonable adjustments to be made had there been any that would have assisted him. He did not do so.

In his notice of appeal Mr Shan stated that he was disabled with one arm, that he struggled to walk and used a walking stick. He needed a reasonably high seat as he could not sit right down in a lower seat and he struggled to get up as only had the use of one arm. These requirements were relevant only in relation to the attendance at a hearing. Such adjustments would not be relevant to the Respondent’s dealings with Mr Shan in relation to this matter.

In his notice of appeal dated 28 December 2023 Mr Shan stated that “The compliance deadlines were 31^st December with no legal obligation to spend more than £3500. I however have spent twice this amount and have thus achieved an EPC rating of C.” I find that this does not assist Mr Shan with his appeal. He had ample opportunity to comply with the legislation and obtain and EPC certificate with a compliant rating but failed to do so until 20 December 2023. I find that this is not a mitigating factor.

It does not assist Mr Shan that he stated in a telephone call on 28 September 2023 that “The compliance works regarding the EPC were nearing completion, proving that I was complying with EPC recommendations” because the EPC with a compliant rating was not obtained until 20 December 2023.

It does not assist Mr Shan that he wrote in his email dated 23 October 2023 (page 71) “I have builders currently working in the property to ensure it meets the EPC compliance. This will be completed in the next week and will be ready for an enhanced EPC” because a compliant EPC certificate was not obtained until 20 December 2023.

I find that the CN and PN contained all the information required by the Regulations.

As work to improve the energy efficiency had begun on 15 September 2023 the Respondent exercised its discretion and decided not to issue a PN for the breach of Regulation 23 letting a sub-standard property for over 3 months. Mr Shan had been at any time in the 18 months preceding the date of service in breach of Regulation 23. This matter is not before me for determination.

In reaching my decision I have taken into account that under regulation 38 the Respondent could impose a FP of up to £2,000. The reduction to £1,200 takes into account that there is no history of non-compliance with regulatory requirements and Mr Shan had commenced work at the Property before the PN was issued. I find there are no mitigating factors to reduce the FP further.

I find that the decision of the Respondent was not based on an error of fact, was not based on an error law , complied with the requirements imposed by the Regulations and in the circumstances of the case it was appropriate for the PN to be issued.

Accordingly, the appeal is dismissed and the PN is affirmed.