Case Reference: FT.SL.2025.0013
S&L
Determined on the papers on 2nd September 2025
Before HHJ David Dixon Jeffrey Gilbert |
Appellant |
- and - |
|
Hyndburn Borough Council | Respondent |
DECISION: The Appeal is dismissed, and the penalty upheld. | ||
Reasons
Background
The Respondent purports that the Appellant is a landlord. The Respondent is the enforcement authority which served a Compliance Notie and then a Penalty Notice on the Appellant. The Penalty Notice, dated 22nd November 2024, imposed a financial penalty for breaching Regulation 23 of the Energy Efficiency (Private Rented Property) (E&W) Regulations 2015, by letting a premises where no Energy Performance certificate, EPC, existed. The penalty imposed was £3,000. The cost of publication of the penalty were added to that amount resulting in a total penalty of £3052.50.
The Appellant sought a review of the penalty arguing that the property in question, 5 Bridge Street, Rishton, Blackburn was first let in March 2009 and therefore no EPC requirement existed. The Respondent carried out a Review and indicated on 3rd March 2025 that all properties after April 2020, that are rented through a qualifying tenancy, are required to have an EPC, unless any exemption applies. No exemption applied the Respondent found. Accordingly the penalty was upheld.
The Appellant has appealed that decision to the Tribunal by application dated 27th March 2025. In his appeal the Appellant indicates that the property has remained under the same tenancy since 2009. The tenant is difficult, a hoarder, and has refused access to a number of “trades” in recent times. The tenant refused access to an EPC assessor and therefore no certificate exists at the moment. The Appellant argues that the penalty should be cancelled as he couldn’t obtain an EPC due to the tenant.
The Appellant indicated he has sought possession of the property via the Courts and expected vacant possession shortly.
The Appeal
This appeal has been determined on the papers. The parties and the Tribunal agreed that this matter was suitable for determination on the papers in accordance with rule 32 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, as amended. The Tribunal considered all the evidence and submissions made by both parties.
The bundle supplied totalled some 78 pages.
The Legal Framework
The primary statutory provisions with which I am concerned provides as follows:
Prohibition on letting of sub-standard property
23.—(1) A landlord of a sub-standard domestic PR property must not let the property unless regulation 25, or one or more of the exemptions in Chapter 4, applies.
For the purposes of paragraph (1), “let the property” means—
(a)on or after 1st April 2018, grant a new tenancy which falls within section 42(1)(a) of the Act, or let the property on such a tenancy as a result of an extension or renewal of an existing tenancy, or
(b)on after 1st April 2020, continue to let the property on such a tenancy.
Compliance notices
37.—(1) An enforcement authority may, on or after 1st April 2018, serve a notice (a “compliance notice”) on a person (“L”) who appears to it to be, or to have been at any time within the 12 months preceding the date of service of the compliance notice, in breach of one or more of the following—
(a)regulation 23,
(b)regulation 27,
requesting such information as it considers necessary to enable it to monitor compliance with this Part.
A compliance notice may in particular request L to produce for inspection originals, or copies, of the following—
(a)the energy performance certificate for the property which was valid at the time the property was let,
(b)any other energy performance certificate for the property in L’s possession,
(c)any current tenancy agreement under which the property is let,
(d)any qualifying assessment in relation to the property,
(e)any other document which the enforcement authority considers necessary to enable it to carry out its functions under this Part,
and may request L to register copies of any of them on the PRS Exemptions Register
A compliance notice must specify—
(a)the name and address of the person to whom the documents or other information required must be provided, and
(b)the date by which they must be provided which must be no less than one month from the date on which the compliance notice is served.
L must—
(a)comply with the compliance notice, and
(b)allow the enforcement authority to take copies of any original document produced.
A compliance notice may be varied or revoked in writing at any time by the enforcement authority that issued it.
An enforcement authority may take into account any information held by it, whether or not provided to it in accordance with this regulation, in determining whether L has complied with this Part.
CHAPTER 6 Penalties – domestic and non-domestic PR property
Penalty notices
38.—(1) An enforcement authority may, on or after 1st April 2018, serve a notice on L (a “penalty notice”) in any case where it is satisfied that L is, or has been at any time in the 18 months preceding the date of service of the penalty notice, in breach of one or more of the following—
(a)regulation 23,
(b)regulation 27,
(c)regulation 37(4)(a),
imposing a financial penalty, a publication penalty, or both a financial penalty and a publication penalty, in accordance with this Chapter.
A penalty notice must—
(a)specify the provision of these Regulations which the enforcement authority believes L has breached,
(b)give such particulars as the enforcement authority considers necessary to identify the matters constituting the breach,
(c)specify—
(i)any action the enforcement authority requires L to take to remedy the breach,
(ii)the period within which such action must be taken,
(d)specify—
(i)the amount of any financial penalty imposed and, where applicable, how it has been calculated,
(ii)whether the publication penalty has been imposed,
(e)require L to pay any financial penalty within a period specified in the notice,
(f)specify the name and address of the person to whom any financial penalty must be paid and the method by which payment may be made,
(g)state the effect of regulations 42 to 45, and
(h)specify—
(i)the name and address of the person to whom a notice requesting a review in accordance with regulation 42 may be sent (and to whom any representations relating to the review must be addressed), and
(ii)the period within which such a notice may be sent.
Each of the periods specified under paragraph (2)(c) and (e) must not be less than one month, beginning on the day on which the penalty notice is served.
Where L fails to take the action required by a penalty notice within the period specified in that penalty notice in accordance with paragraph (2)(c), the enforcement authority may issue a further penalty notice.
A breach of Regulation 23 carries a maximum fine of £2000 where the breach has existed for less than 3 months, plus publication of the offence under Regulation 40, £4,000 if longer than 3 month. If a Landlord is unhappy with a fine being imposed he may seek a review of the penalty. If following a review the Landlord remains dissatisfied he may appeal to the Tribunal on the grounds that: the issue of the penalty notice was based on an error of fact; the issue of the penalty notice was based on an error of law; the penalty notice does not comply with a requirement imposed by these Regulations; or, in the circumstances of the case it was inappropriate for the penalty notice to be served on the landlord (regulation 43). The Tribunal may quash, modify or confirm the penalty notice as it sees fit.
Evidence
The Respondent provided documentation that showed:
On 16th October 2024 that the Respondent believed that the Appellant was letting a property without an EPC and sought a certificate from the Appellant. The Respondent warned that a compliance notice would follow if no reply was received.
On 18th November the Appellant replied indicating that refurbishment of the property was required after the tenant moved out to get an EPC.
On 22nd November 2024 a compliance notice was issued requiring production of an EPC or valid exemption, which contained a warning that a failure to comply could result on a penalty. On the same date a penalty notice was issued.
On 3rd March 2025 the Respondent carried out a Review and confirmed the penalty.
No EPC exists for the address in question, nor a registered exemption.
Submissions
The Respondent submits the Appellant continued to let a property after 2020 without an EPC and accordingly is in breach of the Regulations. The Respondent therefore argues that a penalty was appropriate
The Appellant argues that there was no requirement for an EPC due to the continuing nature of the tenancy. Further or alternatively, he argues if an EPC was required he couldn’t obtain one as the tenant would not allow access to the property to allow an assessment to take place. He suggests this is an exception.
Decision Reasons
The Tribunal considered all of the papers with care.
Here there is no issue that the Appellant is a landlord. He accepts the property has been let continually since 2009. As a result there has been no new tenancy agreement after 1st April 2018 for Regulation 23(2)(a) to attach to. However, by virtue of Regulation 23(2)(b) the property has continued to be let after 1st April 2020 and therefore it was not permissible for the Appellant to continue to let a substandard property after April 2020.
Regulation 23 imposes a positive responsibility upon a landlord not to let a property that is substandard. The only way a Landlord can prove they are not breaching the Regulations is by producing a EPC of at least an E rating. Here the Appellant failed to do so. He is therefore at face value in breach of the Regulations.
The Appellant indicates as his secondary argument that the tenant has not allowed access to the address to allow an EPC to be provided. Looking at the Regulations if the tenant refuses to allow work to be done, an exemption can apply. However, this only applies if the exemption is registered. Here no work has been determined as there has been no assessment (or tenant request) and therefore the exemption suggested does not apply.
Even if the tenant refusing to allow access for the EPC did get within the potential exemption (and I don’t believe that it could) the Appellant has failed to register the exemption so it is of nil effect.
The consequence of the aforesaid is that the property should have had an EPC, it doesn’t, the breach is therefore made out. No exemptions apply that the Tribunal can see on the papers supplied, even on a wider view of the Regulations in full, and therefore the Respondent was entirely within its rights to issue a fixed penalty.
The extent of the fixed penalty is not at the maximum allowed, some account of the factual position has taken place and therefore I cannot see that the penalty imposed was disproportionate or irrational. Accordingly, I uphold the penalty and dismiss the appeal.
(Signed) Dated: 2nd September 2025
HHJ David Dixon
Judge of the First Tier