The appeal to the Upper Tier Tribunal (UTT) was brought by Waltham Forest Council in London but it turned out that the person giving evidence as the respondent landlord wasn't who (almost) everyone thought he was.

The appeal (which "did not proceed as expected") related to a private rented sector property in Kilburn, London, which should have had a selective licence but didn't. At the First Tier Tribunal (FTT) hearing, where the landlord had appealed against Waltham Forest Council's imposition of a civil penalty fine - initially £6,000 but reduced by 20% to £4,800 - at the band 2 "moderate" level, the council asked the FTT to increase the fine to £15,000.

The request was made because new evidence as to the number of properties actually owned by the landlord was divulged that made the council's representative point out that this made the failure to licence a more serious band 4 offence due to the landlord owning a "significant portfolio" of properties. The FTT declined to increase the level of fine giving as its reason the lack of fairness as the landlord was not legally represented and would need the opportunity to seek proper advice.

It was on the basis of the refusal to increase the fine that the council appealed the decision, with permission from the FTT, to the UTT.

At the UTT hearing the tribunal decided that the FTT did have the power to increase a fine but was not bound to do so. The second question was whether the FTT was entitled to decline to increase a fine. This meant that the parties would have to make submissions to the UTT as to whether the FTT could depart from the council's civil penalty policy.

However, it then transpired that "the respondent was represented by [his brother], who represented him at the FTT. With [his brother] was a gentleman whom he introduced as the respondent [the unlicensed landlord]." The council's legal representative then "expressed concern that this gentleman was not the person who attended the FTT, was understood by all who were present at that hearing to be [the landlord], and who was cross examined .... on the basis that he was [the landlord] and was the author of the application to the FTT."

The landlord's brother then agreed that the person with him at the FTT video hearing was not in fact his brother, the landlord, but was instead his father. He added that he didn't know why he had not told the FTT that it was not the landlord present but was in fact their father.

The UTT said " that was certainly most surprising news" and added that it wasn't for the UTT to make a finding of fact as to who was present at the FTT hearing or whether the gentleman who gave evidence there or the gentleman in court at the hearing of the appeal [at the UTT] is the landlord, the respondent to the appeal and the person upon whom the civil penalty is imposed. The UTT also said that it was not appropriate for the UTT to make any finding as to whether the respondent landlord, his brother or their father had behaved improperly.

However, Judge Elizabeth Cooke said in the UTT decision "I set aside the FTT's decision .... on the basis that it was made under a misapprehension as to the identity of the person who gave evidence .... Technically the appeal succeeds, in the sense that the FTT's decision is set aside but it is important to note that the decision is set aside for reasons unrelated to the grounds of appeal."

She also ordered that the case be remitted to the FTT, the respondent landlord, his brother and father all attend the remitted hearing at the FTT with each providing witness statements and photographic identification along with a list of all the properties they own accompanied by registers of title or title deeds for each property.

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