Mahendra Maharaj v Liverpool City Council

This is an appeal by Mr Mahendra Maharaj from a decision of the First-tier Tribunal (‘the FTT’), dated 24 June 2021, confirming two final notices, dated 29 January 2020, issued by the local housing authority, Liverpool City Council, imposing financial penalties upon him for two offences of failing to comply with licence conditions under Part 3 of the Housing Act 2004 (‘the 2004 Act’) in respect of 68 Fazakerley Road, Liverpool L9 2AL (‘the property’). The FTT refused permission to appeal on 4 August 2021 but permission to appeal was granted by the Deputy Chamber President (Martin Rodger QC) on 7 October 2021. When granting such permission, the Deputy Chamber President stated that:

The appeal was listed as an attended hearing in Liverpool but the day before the hearing the Tribunal converted it to a remote hearing by Teams when I was informed that counsel for the appellant had tested positive for COVID. The appellant was represented by Mr Nathan Goldstein (of counsel) and the respondent was represented by Ms Cecilia Pritchard (also of counsel).

As the hearing developed, it became apparent that this appeal also raises a second issue of general importance concerning the precise point in time at which a local housing authority has “sufficient evidence” of the breach of the mandatory condition in paragraph 1(2) of Schedule 4 to the 2004 Act, which requires a licensed landlord to produce to the local housing authority annually for their inspection a gas safety certificate obtained in respect of the house within the previous 12 months.

The appellant is a professional landlord with a substantial portfolio of rental properties, including some 78 in Liverpool, which he manages himself. Since 1 April 2015 the respondent had operated a citywide selective landlord licensing scheme which provided for the licensing of certain rental properties, including the property. This was the subject of a licence, granted to the appellant on the 4 July 2017, which imposed the respondent’s standard-form conditions on the appellant as the licence holder. The material conditions relevant to these proceedings were General Condition 1.2 (which is a mandatory condition required by s. 90(4) and paragraph 1(2) of Schedule 4 to the 2004 Act) and General Condition 5.6 (which is a discretionary condition imposed under s. 90(3) of the 2004 Act). These General Conditions provide as follows:

By s. 95(2) of the 2004 Act a licence holder commits an offence if he fails to comply with any condition of the licence; but, by s. 95(4) it is a defence if the licence holder had a reasonable excuse for failing to comply with the condition in question. The burden of establishing such a defence, to the civil standard, on a balance of probabilities, rests on the licence holder. As an alternative to prosecution, by s. 249A of the 2004 Act the local housing authority may impose a financial penalty on a person if satisfied, beyond reasonable doubt, that their conduct amounted to such an offence. S. 249A(6) incorporates Schedule 13A to the 2004 Act, which sets out: (a) the procedure for imposing financial penalties by a local housing authority, (b) appeals against financial penalties, (c) the enforcement of financial penalties, and (d) guidance in respect of financial penalties. As regards the procedure, paragraphs 1 to 3 deal with the notice of intent, paragraph 4 addresses the right to make representations, and paragraphs 5 to 8 deal with the final notice. So far as material to this appeal, these paragraphs provide as follows:

S. 249A and Schedule 13A were inserted into the 2004 Act (with effect from 6 April 2017) by the Housing and Planning Act 2016. Mr Goldstein has referred me to the Guidance issued for local authorities under Schedule 9 to the 2016 Act in relation to the civil penalties introduced by that Act. As regards the burden of proof that is required, paragraph 3.1 provides:

On 8 November 2019 the respondent issued two notices of intent to impose financial penalties on the appellant, each for the alleged offence of failing to comply with a licence condition under Part 3 of the 2004 Act in respect of the property. One proposed a financial penalty of £3,375 for the breach of General Condition 1.2 of the appellant’s licence. The basis of the offence was stated to be that on 5 June 2019 Adam Farey, a technical compliance officer with the respondent council, had written to the appellant requesting him to produce a copy of a valid gas safety certificate for the property within seven days. On 13 June 2019 the requested record had not been provided by the appellant, which was said to give rise to a contravention of General Condition 1.2 of the licence. The other notice of intent proposed a financial penalty of £5,625 for the breach of General Condition 5.6 of the appellant’s licence. The basis of that offence was stated to be that on 5 June 2019 Mr Farey had written to the appellant requesting him to produce a copy of his records of inspection for the property within 28 days. By 4 July 2019 the requested records had not been provided by the appellant, giving rise to a contravention of General Condition 5.6 of the licence. Final notices imposing the proposed financial penalties in respect of each of these two offences were issued on 29 January 2020.

By application dated 22 February 2020 the appellant appealed to the FTT against the imposition of both financial penalties on the grounds that he was not in breach of either condition, and that he had a defence in respect of his failure to inspect the property every six months. Directions were issued on 22 October 2020; and the matter was heard via video link on 21 June 2021. At the hearing, the appellant was represented by his agent, Mr Laurence Sweeney, and the respondent was represented by Ms Pritchard. For the appellant, the FTT heard evidence from the appellant and from Mr Sweeney. For the respondent, the FTT heard evidence from the tenant of the property, Mr Martin Hourston, and from the respondent’s officer, Mr Adam Farey. A full transcript of the proceedings has been provided, running to over 180 pages, which I have read in full. I note that the FTT handed down their decision only three days after the hearing.

It was common ground that the supporting documents sent to the respondent with the appellant’s original licence application had included a gas safety certificate for the property, dated 8 February 2017. In essence, the appellant’s case before the FTT was: (1) that on 6 June 2019 he had posted to the respondent three gas safety certificates for the property, dated 8 February 2017, 29 March 2018, and 17 February 2019, along with blank, but signed, inspection records for the property; and (2) that he had been unable to inspect the property because he been unable to gain entry to it as the tenant, Mr Hourston, had not provided him with access to the property.

The FTT set out the background to the appeal at paragraphs 1 and 2 of its decision dated 24 June 2021. The FTT summarised the applicable statutory provisions at paragraphs 3 to 6, expressly noting (at paragraph 3) that:

The FTT’s decision dated 4 August 2021, wherein they refused permission to appeal from their decision to confirm the respondent’s final notices imposing financial penalties on the appellant, provides further clarity as to the true basis for its substantive decision. Addressing the breach of condition 1.2, paragraphs 6 to 9 are as follows:

It is clear that the basis on which the FTT found the appellant to be in breach of licence condition 1.2 was that he had failed to supply a gas safety certificate for the year ending 4 July 2018 within the time limit required by that licence condition, i.e. by that date. The FTT expressly made no finding as to whether the gas safety certificate dated 17 February 2019 had been sent to the respondent on 14 March 2019.

In his written skeleton argument in support of the appeal, dated 20 April 2022, Mr Goldstein stated that he understood that the nature of the appeal was in effect a re-hearing of the appellant’s challenge to the penalty notices and consequently it was anticipated that a number of witnesses were required to give oral evidence and be cross-examined. At the outset of the appeal hearing, Ms Pritchard indicated that that was also her understanding, and it was for that reason that she had not prepared a written skeleton argument. I referred both counsel to paragraph 5 of the Order of the Deputy Chamber President granting permission to appeal, which provided that the appeal would be a review of the decision of the FTT and would be conducted in accordance with the Tribunal’s standard procedure (under which no evidence is heard but the Tribunal determines whether the decision which is being challenged is correct based upon the evidence that was before the FTT). I also referred counsel to an exchange of emails between the respondent and the Tribunal’s case officer in November 2021 in which the latter had confirmed that the appeal would be by way of review, which was the usual procedure adopted on appeals; and that if the respondent wished to request a re-hearing it might do so, but that such an application would only succeed if there were some good reason for the Tribunal to adopt an approach in the present case which was different from its usual approach. I pointed out that no such request had ever been made, and that there had been no challenge to the Deputy President’s direction that the appeal would proceed by way of a review of the FTT’s decision rather than a re-hearing. Having given both counsel an opportunity to take instructions, they confirmed that they were content to proceed by way of review. Since this was not the way in which counsel had anticipated that the appeal would proceed, I granted an adjournment of about an hour to allow them to adapt their intended submissions accordingly. I also drew the attention of counsel to the recent decision of the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 464 (now reported at [2022] 4 WLR 48) as providing a helpful summary of the correct approach to be taken to appeals on issues of fact. When the hearing resumed, Mr Goldstein addressed the Tribunal for about an hour and 20 minutes, either side of the luncheon adjournment. Ms Pritchard then responded for about 45 minutes; and there followed a dialogue between the Tribunal and counsel during which Mr Goldstein made reference to the recent decision of the Tribunal (Judge Elizabeth Cooke) in Pinto v Welwyn Hatfield Borough Council [2022] UKUT 047 (LC) on the issue of what amounts to “sufficient evidence of the conduct to which the financial penalty relates” for the purposes of the six months’ time limit for the giving of a notice of intent to impose a financial penalty. The appeal hearing concluded at about 4.00 pm.

For the appellant, Mr Goldstein submits that the challenge to the financial penalty imposed for breach of licence condition 1.2 raises two issues: the first is a technical, or formal, argument relating to the terms of the penalty notice; and (should the Tribunal find against the appellant on this first point) the second is a factual argument as to whether the appellant had in fact provided the gas safety certificate to the respondent on or about 6 June 2019.

In both the notice of intent and also in the final notice imposing a financial penalty for breach of licence condition 1.2, the respondent had stated, as the basis of the offence, that the failure to produce a copy of a valid gas safety certificate by 13 June 2019, when requested to do so within seven days by Mr Farey’s letter dated 5 June 2019, had given rise to a contravention of this particular licence condition. In its decision dated 24 June 2021 the FTT had concluded that it was “satisfied beyond reasonable doubt that the applicant committed the offences for which the penalty notices were issued”. The basis for this finding was not apparent from the FTT’s original decision, and it only became clear when the FTT issued its later decision, dated 4 August 2021, stating that it had “found as a fact that the Applicant failed to supply a gas safety certificate for the year ending 4 July 2018 within the time limit required by the Licence condition 1.2, and further found that this was the basis of the offence for which a civil penalty was payable”. Mr Goldstein submits that there was no basis upon which a financial penalty could lawfully have been imposed on the appellant under s. 249A of the 2004 Act as the original charge formulated by the respondent was materially flawed: the failure to provide a gas safety certificate by 13 June 2019 could not constitute an offence since the failure to provide a gas safety certificate within seven days of being requested to do so was not one of the conditions of the appellant’s licence. Further, the alternative basis upon which the FTT appear to have based their decision - the failure to provide a gas safety certificate for the year ending 4 July 2018 - was contrary both to the terms of the penalty notice and to the way in which the respondent had put its case throughout. Moreover, had the charge been formulated in this way, it would have been apparent that the six months’ period for giving notice of intent had expired on 4 January 2019, so that any proceedings for that offence were effectively time-barred, because no notice of intent had been given until on or about 8 November 2019. Clearly, Mr Goldstein submitted, it would have been apparent to the respondent whether or not a gas safety certificate had been provided to it by each anniversary of the date when the landlord was first granted a licence for the property.

For the respondent, Ms Pritchard submits that in both the notice of intent and also in the final notice, it was made very clear that the basis of the offence was a contravention of general licence condition 1.2, which was set out in full. The essence of the respondent’s case was clearly stated to be the failure to supply a valid gas safety certificate on an annual basis; and that case had been put to the appellant in clear terms in the course of cross-examination. The basis of the offence stated in the two notices is not the offence itself but merely “gives a factual background” to the offence. Alternatively, by paragraph 10(3) of schedule 13A to the 2004 Act, the appeal to the FTT had been a re-hearing of the respondent’s decision, and might be “determined having regard to matters of which the authority was unaware”. As for the submission that the respondent had had sufficient evidence of the breach of licence condition 1.2 on or shortly after 4 July 2018, that would involve the proposition that a local housing authority is required to check its data-base on each anniversary of the grant of a landlord’s licence, and give notice of intent within six months thereafter, which would impose an unreasonable burden upon such authorities. From a practical point of view, it made sense, and would reduce the burden on local housing authorities, to treat time as starting to run for the giving of notice of intent only when a landlord failed to respond to a notice to produce a valid gas safety certificate.

On this “technical” ground of appeal, the Tribunal prefers the submissions of Mr Goldstein to those of Ms Pritchard. In the Tribunal’s judgment, the FTT fell into error in two respects when it upheld the final notice imposing a financial penalty for the alleged breach of licence condition 1.2. First, the FTT fell into error in treating the final notice, and the antecedent notice of intent, as disclosing any breach of that licence condition. By paragraph 3(a) of Schedule 13A, the notice of intent must set out “the reasons for proposing to impose the financial penalty”. Those reasons must be sufficiently clearly and accurately expressed to enable the recipient landlord to exercise the right conferred by paragraph 4 to “make written representations to the local housing authority about the proposal to impose a financial penalty”, thereby enabling it to decide whether to impose a financial penalty on the landlord and, if so, the amount of such penalty (as required by paragraph 5). Similarly, by paragraph 8(b) of schedule 13A, the final notice must set out “the reasons for imposing the penalty”. These too must be sufficiently clearly and accurately expressed to enable the recipient landlord to decide whether to exercise the right of appeal to the FTT conferred by paragraph 10 against the decision to impose the penalty or the amount of that penalty. In the Tribunal’s judgment, those reasons must be directly referable to the condition of the licence in relation to which it is said that there has been a failure to comply on the part of the landlord; and those reasons must identify clearly, and accurately, the particular respects in which it is said that there has been non-compliance on the landlord’s part. The Tribunal does not regard the reasons for imposing a financial penalty, or proposing to do so, merely as giving a factual background to the offence; they should be treated as providing particulars of the offence.

In the present case, the offence alleged was the breach of licence condition 1.2 and the particulars of offence should have specified “the failure to supply a valid gas safety certificate for the year ending 4 July 2018 within the time limit required by licence condition 1.2, namely by 4 July 2018”. That was the offence that the FTT found to have been proved beyond reasonable doubt; and that should have been the offence that was identified to the appellant in the notice of intent and in the final notice. Local housing authorities must bear firmly in mind that the imposition of a financial penalty is an alternative to a criminal prosecution; and it must be treated with the same level of seriousness and transparency. Having read the whole transcript of the proceedings, the Tribunal is satisfied that Ms Pritchard had put to the appellant in clear terms during the course of his cross-examination the basis of the offence that was actually found by the FTT of failing to supply a valid gas safety certificate on an annual basis. However, that was not the case that had been set out in either the notice of intent or in the final notice; these documents had identified the offence, but the particulars of offence were the failure to produce a copy of a valid gas safety certificate by 13 June 2019, when the appellant had been requested to do so within seven days by Mr Farey’s letter dated 5 June 2019. These particulars did not constitute the offence alleged, and they were therefore defective. To adopt old-fashioned legal terminology (which was not even recognised by my computer spell-check), they were demurrable. They did not give the appellant proper notice of the offence alleged against him and which the FTT found had been made out to the criminal standard of proof. Paragraph 10 (3) of Schedule 13A to the 2004 Act may permit the FTT to determine an appeal “having regard to matters of which the authority was unaware”; but, in the Tribunal’s judgment, it does not permit the FTT to determine an appeal on the basis of reasons for imposing a financial penalty that have not been set out in the local housing authority’s final notice. In the Tribunal’s judgment, it was not properly open to the FTT, by waving an imaginary magic wand, to transform conduct specified in the final notice that was not properly a breach of licence condition 1.2 into an offence by redefining that conduct in terms that did constitute such a breach. The Tribunal does not regard this point as a mere technicality because it gives rise to the risk that a landlord might be found guilty of a non-existent offence, or of one that has not been properly identified to the landlord; and because, in the present case, it has fed seamlessly into the FTT’s second error, which was to fail to identify the fact that the offence which it did find to have been proved was in fact time-barred.

Any breach of licence condition 1.2, as at 13 June 2019, which is the date identified in the notice of intent and the final notice, could only relate to the licence year ending 4 July 2018 because the notice for the licence year ending 4 July 2019 was not then overdue. However, by paragraph 2(1) of Schedule 13A to the 2004 Act, notice of intent must be given before the end of the period of six months beginning with the first day on which the authority has sufficient evidence of the conduct to which the financial penalty relates. In Pinto v Welwyn Hatfield Borough Council [2022] UKUT 047 (LC) the Tribunal decided that, read in context, the words “sufficient evidence” in paragraph 2(1) mean “sufficient evidence to impose a financial penalty”, which, in the light of s. 249A, had to mean evidence that was sufficient to prove the commission of the offence to the criminal standard of proof beyond reasonable doubt. If the words meant only “sufficient evidence to serve a notice of intent”, it would not be possible to know what would be “sufficient”; and if such an unspecified lower standard of proof were intended, then a local housing authority would have to guess the point from which time ran. That interpretation was consistent with a fair process. Once the authority had sufficient evidence to prove the offence beyond reasonable doubt, it should start the process, and to wait for more than six months after that point would be unfair to the offender. Conversely, it would be unfair to the authority to put it under time pressure to serve a notice of intent before it could be sure that the offence had been committed. The opportunity to make written representations was to enable the landlord’s point of view to be considered, first because they had a right to be heard and, importantly, because their evidence might put things in a different light and change the authority’s mind. However, paragraph 2 of Schedule 13A did not say that the local housing authority had to be sure. It said only that there had to be “sufficient evidence” for it to be sure. That meant that if there was an abundance of evidence, the six-months period would start to run even if the local authority’s officers had not directed their attention to that evidence. Neither counsel sought to challenge the correctness of that approach.

In the Tribunal’s judgment, it would have been apparent to the respondent whether or not the landlord had provided it with a gas safety certificate for the property by each anniversary of the date the landlord was first granted a licence for the property and thus, in the case of the licence year ended 4 July 2018, on or shortly after that date. I reject Ms Pritchard’s submission that it would impose an unreasonable burden upon local housing authorities to require them to check their data-base on each anniversary of the grant of a landlord’s licence and, in the event of any failure to provide a gas safety certificate for a property, to give notice of intent within six months thereafter. A condition in the terms of licence condition 1.2 is considered of such importance that it is a mandatory standard condition which must be included in all landlords’ licences. It should be properly policed; and this can be readily done by diarising it on the landlord’s data-base. Applying the approach of this Tribunal in Pinto, the Tribunal is satisfied that the respondent had “sufficient evidence” to prove the commission of any offence of a breach of licence condition 1.2, to the criminal standard of proof beyond reasonable doubt, on or shortly after 4 July 2018. It follows that the six months’ period for giving notice of intent had expired on or shortly 4 January 2019, so that any proceedings for the offence of breaching licence condition 1.2 were effectively time-barred when notice of intent was given on or about 8 November 2019. In paragraph 3 of its June decision the FTT had noted that the respondent must issue a notice of intent before the end of six months beginning on the date when it had evidence that an offence had been committed. Had the final notice clearly specified the particulars of offence, in terms of a failure to supply a valid gas safety certificate for the year ending 4 July 2018 within the time limit required by licence condition 1.2, namely by 4 July 2018, the FTT might well have appreciated the fact that the notice of intent had been given some ten months late, and refused to confirm this particular final notice on that basis. The clear lesson for local housing authorities is that they should put in place appropriate machinery to ensure that landlords duly comply with conditions in terms of the mandatory condition required by s. 90(4) and paragraph 1(2) of Schedule 4 to the 2004 Act.

For these reasons, the Tribunal allows the appeal from the FTT’s decision to confirm the final notice in respect of the breach of licence condition 1.2 and it quashes the resulting financial penalty of £3,375.

That decision means that it is unnecessary for the Tribunal to consider the appellant’s alternative challenge to the FTT’s decision on the facts relevant to its finding that the respondent had proved the offence under licence condition 1.2.

Mr Goldstein recognises that the appeal against the FTT’s decision to confirm the final notice that imposed a financial penalty of £5,625 for the respondent’s breach of General Condition 5.6 of his licence raises a wholly factual issue. Speaking with the agreement of Males and Snowden LJJ, at paragraph 2 of his judgment in Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48 Lewison LJ described as “well-settled” the following principles which govern the approach that an appeal court should take when it considers an appeal on pure questions of fact:

Mr Goldstein accepts that the appellant did not inspect the property as required under licence condition 5.6, but he relies upon the statutory defence under s. 95(4) that he had a “reasonable excuse” for failing to comply with that condition on the basis that the tenant, Mr Martin Hourston, had refused him entry to the property in order to carry out the inspections. Mr Goldstein recognises that the appellant bears the burden of proving his defence to the civil standard of proof on a balance of probabilities. The issue turns largely on the FTT’s assessment of the credibility of the appellant and of Mr Hourston. Mr Goldstein submits that the FTT should have concluded, on the balance of probabilities, that the appellant had been unable to access the property in order to carry out the six-monthly inspections, and so he can avail himself of the statutory defence. Mr Goldstein says that Mr Hourston clearly had a vested interest in not co-operating with the appellant given the condition in which he left the property, which had resulted in the appellant having to take legal action to evict him. In addition to evicting Mr Hourston, the appellant had also obtained a money judgment against him for £24,204.35 plus costs which was the subject of enforcement proceedings. Mr Goldstein also relies upon: (1) the observations about Mr Hourston and the property made by Mr Sweeney, the civil enforcement officer acting on behalf of the appellant, who had visited the property on 20 December 2019, noting in particular that he had mental health problems and was an alcoholic, and that Mr Hourston had accepted that he had not provided the appellant with access to inspect the property; (2) Mr Hourston’s signed retraction statement dated 20 December 2019 conceding that he was unable to look after the property and had not provided access to the appellant’s gas engineers; (3) the fact that the appellant’s contractors and gas engineers had been unable to gain access to the property; and (4) the fact that Mr Hourston had failed to respond to the court and provide the required information arising from the appellant’s attachment of earnings application.

Ms Pritchard emphasised that the Tribunal should be slow to interfere with the FTT’s findings of fact where it had heard the witnesses being tested under cross-examination. She relied upon the guidance in Volpi as a useful, and important, summary of the applicable principles. Ms Pritchard referred to the following salient points that had emerged during the case: (1) The appellant was a professional landlord, with over 78 properties in the Liverpool area alone, and more in other parts of the country. (2) He claimed that he had attempted to inspect the properties in compliance with his licence conditions and had travelled to Liverpool to do so, but no evidence had been produced of any original or copy letters to the tenant to arrange inspections, or of any other communications requesting inspections to take place. (3) It was apparent that those acting on behalf of the appellant had been able to gain access to the property and to speak to the tenant, extending to arranging for him to sign letters on behalf of the appellant and to speak to him by phone. The gas safety certificates produced by the appellant demonstrated that his contractors had been able to gain access to the property. (4) In addition, representatives of the respondent had been able to gain access to the property on a number of occasions and had secured the co-operation of the tenant. (5) Mr Hourston had been candid in his evidence that he had experienced some issues, but he had always co-operated with requests concerning the property, except on occasions when he had been unwell. He denied that he had ever been asked by the appellant to give him permission to inspect the premises; indeed, he said that the very first time he had seen the appellant was during the remote FTT hearing. (6) The appellant had produced blank (except for the date) inspection records, which he claimed he had sent to the respondent on 6 June 2019, although two sets of the records had been dated after 6 June, thereby calling into question the reliability of that documentary evidence. Ms Pritchard emphasised that it had been for the appellant to prove the defence of reasonable excuse, on the balance of probabilities; and, for a professional landlord, the appellant’s evidence had been sadly wanting in many respects. The FTT had been best placed to assess the evidence it had heard. The FTT’s findings in relation to the evidence, at paragraphs 31, 32, 36 and 37 of their June decision, were conclusions that were proper for the FTT to make, bearing in mind the evidence it had heard.

On this particular issue, the Tribunal prefers the submissions of Ms Pritchard to those of Mr Goldstein. The Tribunal rejects Mr Goldstein’s submissions. The Tribunal has read through the whole of the transcript of the proceedings before the FTT. Having heard them both give evidence, the FTT was fully entitled to prefer the evidence of Mr Hourston to that of the appellant. The FTT’s finding that the tenant did not deliberately, or consistently, deny the appellant access to the property cannot properly be characterised as a decision that no reasonable tribunal could have reached. The FTT’s conclusions were rationally supportable; and its decision cannot properly be described as plainly wrong. Indeed, although that is not the proper test, it is almost certainly the decision that the Tribunal would have reached having considered the evidence. In cross-examination, the appellant accepted that according to his gas safety certificates, the tenant had allowed the gas engineer access to the property in each of the years 2017, 2018 and 2019: see the transcript at page 623 of the hearing bundle. The FTT was fully entitled to find that the appellant had not made out the defence of reasonable excuse on the balance of probabilities. The Tribunal notes that the FTT’s decision is dated 24 June, only three days after the actual hearing, and the evidence would therefore still have been fresh in the FTT’s mind.

For these reasons, the Tribunal dismisses the appeal from the FTT’s decision to confirm the final notice in respect of the breach of licence condition 5.6, and it affirms the resulting financial penalty of £5,625.

For the reasons set out above, the Tribunal: (1) allows the appeal from the FTT’s decision to confirm the final notice in respect of the breach of licence condition 1.2 and it quashes the resulting financial penalty of £3,375; but (2) dismisses the appeal from the FTT’s decision to confirm the final notice in respect of the breach of licence condition 5.6 and it affirms the resulting financial penalty of £5,625.