Unappealing

Haringey LBC v Goremsandhu  [2013] EWHC 3834 (Admin) [Not on bailii yet]

Ms Goremsandhu was the owner of an HMO, made up of four flats in Tottenham. Haringey had served her with improvement notices. When Ms G had failed to complete the word required within the period apparently given in the notices, Haringey prosecuted under s.30(1) Housing Act 2004. However, the Magistrates acquitted on the basis that Ms G had a reasonable excuse for failing to comply with the notices, which is a defence under s.30(4) Housing Act 2004. Haringey appealed, by way of case stated.

The issue was that once Ms G had appealed to the RPT for 9 months to do works, and the notices had been varied by the RPT, the varied notices required a new heating system with a central boiler servicing all flats to be installed. In relation to Flats 1 and 2, works were stated to be required to ‘commence within 3 months and be completed within a period of 6 weeks’. However, the identical works in relation to Flat 3 were stated to be required to ‘commence within 3 months and to be completed within a period of 6 months‘.

Moreover, works for Flat 4, which involved building an extension, allowed for 9 months as it:

may well take nine months to build a satisfactory extension and we accept that nine months is a reasonable period in which the works required to rectify the hazards of flames, hot surfaces and food safety and crowding and space may be carried out.

Flat 4 was not subject to the prosecution, but Ms G had raised the term of the notice in front of the Magistrates.

The relevant dates were “15 December 2011 (that is for the central heating works) and 15 February 2012 for the other works”.

Ms G had not completed the works by 15 February 2012. On prosecution, Ms G’s defence was that she believed that the notices as varied by the RPT gave her 9 months to complete all the works. The Magistrates accepted that she had this as ‘a genuine honest belief’, due to having applied to the RPT for 9 months and due to “the error” in the description of the time allowed for Flat 3. The other reference to 9 months in relation to Flat 4 made the document confusing.

On the appeal, the High Court held that an ‘honest but mistaken belief’ was not enough by itself to amount to a defence. The belief also had to had to have a reasonable basis, and this was an objective question. R v Unah [2011] EWCA Crim 1837 [2012] 1 WLR 505 and R v Y(A) [2010] EWCA Crim 762 [2010] 1 WLR 2644

The Magistrates did not appear to have approached the question of whether there was a reasonable basis for Ms G’s belief:

They do not set out the facts which say what the reasonable basis for that belief was and there were a number of factors which they would have required to address, including the structure of the Tribunal’s decision, flat by flat, including the structure of the differing time limits, flat by flat, and the basis upon which they concluded that the references to the time limit in Flat 3 was a mistake without dealing with the reasonableness of not realising it was a mistake. There may have been other matters, only touched upon in the evidence, for example the letters sent by the local authority to her dealing with the time limit which they would also have had to consider.

However, even if the Magistrates could be considered to have addressed the issue of reasonable belief, and found that it was reasonable, they would be wrong to have so found. It would have been an untenable, irrational decision.

First of all, there was no justification at all for contemplating that any reasonable person who had read the documents could have thought that the nine-month period applied other than to the works in Flat 4 or to the central heating in relation to Flat 3. There is simply no rational basis upon which, that the document relied on by the Respondent, as they found it was, could have led to the conclusion that the nine-month period applied to all the works. That, I accept, is the finding in relation to belief but it could not possibly have been held that there was a reasonable basis for such a belief. The question, as Ms Manzano points out, is one they could also only answer offence by offence and the circumstances in relation to the flats were different. The magistrates, if finding there was a reasonable excuse, would have had to address the differences in the Tribunal’s decision as between the works in Flats 1, 2, 3 and, for these purposes, 4 as well, given the weight put on it.

Second, once it was clear that the central heating works were the same in all four flats, there was no other conclusion possible other than that the reference to 6 months in relation to flat 3 was an error and that 6 weeks was clearly the time period.

Appeal allowed and case remitted to the Magistrates with a direction to convict in each case and move to sentencing.

(Incidentally, there had been 10 charges at the Magistrates, and Ms G had already been convicted on 5 of them.)

Ms G was not happy with this outcome, as the post-judgment exchanges show.

53. MS GOREMSANDU: So your decision is that they have to look at it as me being guilty rather than to look at it again whether I’m guilty or not?
54. MR JUSTICE OUSELEY: Yes, because if I had only answered the question one way they might have to go back and consider whether there were reasonable grounds, but I have also concluded that they could not rationally conclude that there were reasonable grounds and so they have no option but to convict.
55. MS GOREMSANDU: So I will be convicted one way or another?
56. MR JUSTICE OUSELEY: I beg your pardon?
57. MS GOREMSANDU: So I will be found guilty one way or another?
58. MR JUSTICE OUSELEY: You will be found guilty, yes.
59. MS GOREMSANDU: I have no defence?
60. MR JUSTICE OUSELEY: You have no defence.

Then, facing a costs order,

MR JUSTICE OUSELEY: I understand why lay people — and, indeed, sometimes judges — balk at the amount of legal costs that can be run up. But, dealing with the principle, do you wish to contest the making of any order against you?
67. MS GOREMSANDU: Yes.
68. MR JUSTICE OUSELEY: Why?
69. MS GOREMSANDU: Because I am not guilty of those offences. This action is taken against me out of maliciousness and hatred towards me from this lady here at the back of the court.
70. MR JUSTICE OUSELEY: I’m not going to debate that. It’s very difficult to say a case is malicious when you’ve lost it. It’s not going to help you to try and run that argument, I’m afraid. I’m going to move on, Ms Goremsandu, I’m not listening to you saying this case is brought maliciously.
71. MS GOREMSANDU: I want to contest it, the outcome of that course.

And then sought permission to appeal

MS GOREMSANDU: Can I ask, is your decision final? Can I appeal against it?
91. MR JUSTICE OUSELEY: If you want to appeal you need to ask for a certificate that there is a point of law of general public importance. There isn’t. You can’t go to the Court of Appeal, you have to go to the Supreme Court and I’m not going to certify the question. It is over.
92. MS GOREMSANDU: I’m not talking about the costs amount, I’m talking about the outcome.
93. MR JUSTICE OUSELEY: I appreciate you’re talking about the substance. No, it’s over.
94. MS GOREMSANDU: I cannot appeal at all, not even to the Supreme Court?
95. MR JUSTICE OUSELEY: You can’t appeal at all.

And that, it appears, was that. The point being that an error which is an obvious error won’t amount to a reasonable basis for an honest belief in its accuracy.

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Posted in FLW case note, Housing law - All, Regulation and planning and tagged , , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

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