Home London Ltd v The London Borough of Barnet

Background

1. Home London is involved in letting homes to tenants. They are based in North London, with their physical office being in LB Barnet. In August 2023, LB Barnet issued 2 Notices of Intent which set out findings they had made about Home London’s website which, they said, had failed to comply with the Regulations (by not displaying copy Certificate of Membership) and the Act (by not publishing fees); each Notice of Intent stated that LB Barnet was minded to issue a Fixed Penalty Notice in the amount of £5,000. Home London was given the opportunity to make representations, which they did. Following those representations, LB Barnet issued FPNReg and FPNCRA, each in the sum of £5,000.

2. These appeals are about both the Fixed Penalty Notices, I deal with them separately when setting out the law, decision and appeal process; I deal with them together towards the end of this decision. The law – the Tribunal and regulatory decisions

3. When making its Decision, the Tribunal stands in the shoes of the Regulator (LB Barnet) and takes a fresh decision on the evidence available to it, giving appropriate weight to the Regulator’s (LB Barnet’s) decision as the person tasked by Parliament with making such decisions See R (Hope and Glory Public House Limited) v City of Westminster Magistrates’ Court [2011] EWCA Civ 31 , see https://www.bailii.org/ew/cases/EWCA/Civ/2011/31.html ; approved by the Supreme Court I Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 at paragraph 45, see https://www.supremecourt.uk/cases/docs/uksc-2015-0126-judgment.pdf . The burden of proof in satisfying the Tribunal that the Regulator’s (LB Barnet’s) decision was wrong rests with the Appellant. The law – FPNReg

4. As far as is relevant, the Client Money Protection Scheme for Property Agents (Requirement to Belong to a Scheme, etc.) Regulations 2019/386 (now referred to as “the Regulations”) provide: 3 – Requirement to belong to a client money protection scheme (1) A property agent who holds client money must be a member of an approved or designated client money protection scheme. 5 – Enforcement (1) It is the duty of every local authority in England 1 to enforce the requirements of regulation 3 in its area. ….. (3) A local authority in England must have regard to any guidance given by the Secretary of State [or the lead enforcement authority (if not the Secretary of State)] 6 about the exercise of its functions under these Regulations. 6 – Penalty for breach of the requirement to belong to a client money protection scheme (1) Where a local authority in England is satisfied beyond reasonable doubt that a property agent has breached regulation 3, the authority may impose a financial penalty in respect of the breach. (2) The financial penalty— (a) may be of such amount as the authority imposing it determines; but (b) must not exceed £30,000.

5. There is a process which must be followed by the relevant local authority, this is found in Schedule 1 of the Regulations. I do not set it out as this appeal does not dispute that the Notice of Intend and FPNReg were procedurally compliant.

6. Paragraph 5 of Schedule 1 to the Regulations gives a right of appeal: Schedule 1, paragraph 5 - Appeals (1) A property agent on whom a final notice is served may appeal to the First-tier Tribunal against— (a) the decision to impose the penalty; or (b) the amount of the penalty. (2) An appeal under this paragraph must be brought within the period of 28 days beginning with the day after that on which the final notice was served. (3) If a property agent appeals under this paragraph, the final notice is suspended until the appeal is finally determined or withdrawn. (4) An appeal under this paragraph— (a) is to be a re-hearing of the local housing authority’s decision; but (b) may be determined having regard to matters of which the authority was unaware. (5) On an appeal under this paragraph the First-tier Tribunal may quash, confirm or vary the final notice. (6) … The law – FPNCRA

7. As far as is relevant, the Consumer Rights Act 2015 (now referred to as “the CRA”) provides: 83 Duty of letting agents to publicise fees etc. (1) A letting agent must, in accordance with this section, publicise details of the agent’s relevant fees. (2) The agent must display a list of the fees— (a) at each of the agent’s premises at which the agent deals face-to-face with persons using or proposing to use services to which the fees relate, and (b) at a place in each of those premises at which the list is likely to be seen by such persons. (3) The agent must publish a list of the fees on the agent’s website (if it has a website). (3A) Subsection (3C) applies to an agent who— (a) is carrying on letting agency work in relation to a dwelling-house in England, and (b) advertises the dwelling-house on a third party website as a dwelling-house which a landlord is seeking to let on a tenancy. (3B) Subsection (3C) also applies to an agent who, on a third party website, advertises letting agency work carried on by the agent in relation to dwelling houses in England. (3C) The agent must ensure that— (a) a list of the agent’s relevant fees is published on the third party website, or (b) there is a link on that website to a part of the agent’s website where a list of those fees is published. (4) A list of fees displayed or published in accordance with subsection (2), (3) or (3C) must include— (a) a description of each fee that is sufficient to enable a person who is liable to pay it to understand the service or cost that is covered by the fee or the purpose for which it is imposed (as the case may be), (b) in the case of a fee which tenants or contract-holders are liable to pay, an indication of whether the fee relates to each dwelling-house or each tenant or contract-holder under a tenancy or occupation contract of the dwelling-house, and (c) the amount of each fee inclusive of any applicable tax or, where the amount of a fee cannot reasonably be determined in advance, a description of how that fee is calculated. (5) Subsections (6) and (7) apply to a letting agent engaging in letting agency or property management work in relation to dwelling-houses in England. (6) If the agent is required to be a member of a client money protection scheme for the purposes of that work, the duty imposed on the agent by subsection (2), (3) or (3C) includes a duty to display or publish, with the list of fees, a statement that— (a) indicates that the agent is a member of a client money protection scheme, and (b) gives the name of the scheme. (7) If the agent is required to be a member of a redress scheme for dealing with complaints in connection with that work, the duty imposed on the agent by subsection (2) [, (3) or (3C)] 9 includes a duty to display or publish, with the list of fees, a statement— (a) that indicates that the agent is a member of a redress scheme, and (b) that gives the name of the scheme. (8) The appropriate national authority may by regulations specify— (a) other ways in which a letting agent must publicise details of the relevant fees charged by the agent or (where applicable) a statement within subsection (6) or (7); (b) the details that must be given of fees publicised in that way. (9) In this section— “client money protection scheme” means a scheme which enables a person on whose behalf a letting agent holds money to be compensated if all or part of that money is not repaid to that person in circumstances where the scheme applies; “redress scheme” means a redress scheme for which provision is made by order under section 83 or 84 of the Enterprise and Regulatory Reform Act 2013 ; ”third party website” , in relation to a letting agent, means a website other than the agent’s website

8. Fees which must be displayed are set out legislation, which (as relevant) reads: Consumer Rights Act 2015 85 Fees to which the duty applies (1) In this Chapter “ elevant fees” , in relation to a letting agent, means … … (2) Subsection (1) does not apply to— (a), (b)… (c) a tenancy deposit within the meaning of section 212(8) of the Housing Act 2004 , or (d)… Housing Act 2004 212 Tenancy deposit schemes (1) to (7)… (8) … “ tenancy deposit ”, in relation to a shorthold tenancy, means any money intended to be held (by the landlord or otherwise) as security for- (a) the performance of any obligations of the tenant, or (b) the discharge of any liability of his, arising in connection with the tenancy.

9. There is a process which must be followed by the relevant local authority, this is found in Schedule 9 of the CRA. I do not set it out here as this appeal does not dispute that the Notice of Intend and FPNReg were procedurally compliant. The Decision – FPNReg

10. LB Barnet, by Final Notice dated 25 th April 2024, imposed a £5,000 penalty against Home London (the same amount which had been indicated in the Notice of Intent). That Final Notice complied with the requirements of the Regulations. The reason was that LB Barnet had reviews Home London’s website and could not find a copy of the CMPS Certificate. FPNReg sets out the representations received following the Notice of Intent. FPNReg is found at Bundle pages 32 to 35. The Decision – FPNCRA

11. FPNCRA is found at pages 74 to 78 of the Bundle. It complies with the requirements of the Regulations and sets out specific breaches, summarised as: a. Not publishing landlord fees as required. b. Not publishing full tenant fees as required. c. Not publishing redress membership on a third party site. d. Not publishing CMPS Membership information on a third party website.

12. FPNCRA recognised that Home London belongs to a Property Redress Scheme and to a CMPS, set out the representations made by Home London and imposed the £5,000 penalty. Grounds of Appeal – FPNReg

13. By Notice of Appeal dated 24 May 2024, Home London lodged with this Tribunal an appeal against the Final Penalty Notice under the Regulations (“FPNReg”). Their Grounds of Appeal (from page 18 of the Bundle) were set out as: a. They appeal only against the quantum (amount) of the penalty. b. They are a small business and a member of Client Money Protect. Certificates have been displayed from time to time at the premises and are currently (i.e. at May 2024) displayed. c. Its website generates very little business. The copy certificate was not on its website due to inadvertence and lack of technological competence. d. They accept that Notice of Intent was issued. e. They deny the offence is made out. f. The FPNReg is for the maximum amount of £5,000. If the offence is made out, the amount is grossly disproportionate to the breach, there is no record of previous non-compliance, there is no evidence of harm to tenants, there is no evidence that the breach was deliberate, there was no need for significant uplift in the penalty imposed to deter Home London from future breaches, there are no aggravating factors. There are mitigating factors because Home London is part of a Scheme, Home London does display the certificate in its offices, there are no previous breaches by Home London. g. They seek to put The London Borough of Barnet (now “LB Barnet”) to strict proof that they have adhered to their own policies on fines and/or consulted with lead enforcement authority to ensure their policies are in line with the national approach to such tines. h. The FPNReg was imposed at the same time as the Final Penalty Notice under the Consumer Rights Act (“FPNCRA”) which was also for the maximum liability and quantum is appealed on the FPNCRA, and argues that the FPNReg amount did not take into account the totality principle. FPNCRA also included an allegation that Home London had not published details online of the Money Protection Scheme Certificate. Ground of Appeal - FPNCRA

14. By Notice of Appeal dated 24 May 2024, Home London appealed against FPNCRA. Their Grounds of Appeal are found at pages 54 to XXXX of the Bundle and are: a. Home London operates a rent to rent business (paragraph 10 of the Grounds of Appeal) it takes its profit from any margin achieved between the rent if pays to the owner of the property and the rent it charges to the tenants. It does not levy any charges. As Home London charges no fees, no Penalty should be issued. b. It is a member of a Redress Scheme and of a CMPS, certificates are displayed at their offices from time to time. Publication of details of the schemes are required with the list of fees; as there are no fees, there is no need to publish. c. If a Penalty is to be issued, then £5,000 is too high. d. The FPNCRA is for the maximum amount of £5,000. If the offence is made out, the amount is grossly disproportionate to the breach, there is no record of previous non-compliance, there is no evidence of harm to tenants, there is no evidence that the breach was deliberate, there was no need for significant uplift in the penalty imposed to deter Home London from future breaches, there are no aggravating factors. There are mitigating factors because Home London is part of a Redress Scheme and a CMPS, Home London does display the certificate in its offices, there are no previous breaches by Home London. e. They seek to put LB Barnet to strict proof that they have adhered to their own policies on fines and/or consulted with lead enforcement authority to ensure their policies are in line with the national approach to such tines. f. The FPNCRA was imposed at the same time as the Final Penalty Notice under the Consumer Rights Act (“FPNReg”) which was also for the maximum liability the totality principle was not taken into account. FPNReg also included an allegation that Home London had not published details online of the MPSC. Response – FPNReg

15. LB Barnet opposed the appeal on the grounds that: a. Home London admitted the breach. The representation of “time to time” display in the office demonstrates a further breach as display at the offices must be continuous. b. They followed their own enforcement policy. c. The have consulted with relevant leads. Response – FPNCRA

16. LB Barnet opposed the appeal on the grounds that: a. The charge of a holding deposit, which is admitted, is a relevant fee and should be listed on Home London’s website and on third party websites. b. They followed their own enforcement policy. c. The have consulted with relevant leads. Appellant Reply – FPNReg

17. Home London’s reply to the Response sets out: a. The response did not include a meaningful list of agreed factual and legal issues, so breached the Tribunal’s CMDs. b. The expression “from time to time” does not mean that there were times when the Certificate was not displayed at the offices. c. Facts which it asserts, including that Home London belongs to a CMPS, that the amount of business which comes through its website is negligible to nil, no previous breaches, the breach was inadvertent, the certificate was on display in the offices, there is no evidence of harm to tenants, FPNReg is at the maximum amount. Appellant Reply – FPNCRA

18. Home London’s reply to the Response sets out: a. The amount of business which comes to Home London through its website is negligible to nil. b. Facts which it asserts. Procedural issues and mode of hearing

19. Both parties consented to consideration without a hearing. I am satisfied that I can property determine the issues without a hearing.

20. During the course of the appeal, the parties were given permission to rely on additional witness evidence. Documents, evidence and submissions

21. The Tribunal considered a bundle (which contained documents relating to both appeals) and comprised of 312 pages. Additional documents were also provided. The key documents in this appeal include: a. The Notices of Appeal, Grounds of Appeal, Responses and Replies. b. Witness evidence from Sohrab Borozwan (Director of Home London) (which starts at page 147 of the Bundle), the first dated 6 th December 2024, the second dated 10 th February 2025, and a third dated 7 th March 2025. c. Decision LON/00AC/HTD/2024/0001 of Judge Tagliavini of the First-tier Tribunal Property Chamber (Residential Property) dated 3 December 2024 which quashed a Financial Penalty under the Tenant Fees Act 2019 . d. Witness evidence from Louisa Harris of LB Barnet (not contained in the bundle), dated 21 February 2025.

22. The relevant points in Mr Borzwan’s statements are: a. Home London if “rent to rent”; it does not charge fees. It rents from property owners and then sub-lets to tenants. They are not a letting agency or an estate agency but are tenants to property owners and landlord to those who sub-let. Profit (or loss) is made from any difference between the amount they pay the property owner and the amount they receive from the sub-letter. b. Business is conducted from their offices; he is not able to manage a website. A test site was available on the internet, but Home London has never had a proper website, relying instead on other ways to generate business. He is unable to provide information about how many clicks the test site generates. c. They are a member of Client Money Protect and have been since 13 September 2021. The certificate of membership has been on constant display at the office premises and in full view of any customers attending those premises. d. They are a member of Property Redress Scheme since 4 November 2014. The certificate of membership has been on constant display at the office premises and in full view of any customers attending those premises. e. They rely on software called “Rentman” for managing their properties. Rentman has the ability to synchronize with third party platforms such as Zoopla. Rentman introduced a cloud-based package, which would include the ability to synchronize with a business’s website; that meant that Home London needed to consider developing a website to connect with Rentman and other platforms. f. A web designer was appointed to design a website. Home London did not receive any direct access credentials; the designer had sole access. A trial website was made to test out what had been designed; it was not used to conduct business. g. On 22 nd August 2023, LB Barnet sent 4 Notices of Intent. One did not result in there being a Final Penalty. Another was quashed on appeal That appeal was dealt with by the First-tier Tribunal (Property Chamber) ( R esidential Property) , case number LON/00AC/HTD/2024/0001 . The final two are the current appeals. h. On 25 th August 2023, he contacted the web designer and instructed him to (1) change and update the website to show that Home London did not charge any fees to landlords or to tenants, and (2) upload copies of the Certificates. The designer told him this had been done, Mr Borozwan did not personally check this. i. When he received the Final Notices which said that certificates were still not showing on the website, he contacted the designer again, who rectified this. Mr Borozwan checked the website and saw that there was, on the website, a page called “fees” stating that no fees are charged and saw that copies of the Certificates were on the website. j. It is wrong and unfair that the maximum penalty was imposed in each of FPNReg and FPNCRA. k. Sometime a holding deposit is taken, but that is then applied to the rent, not kept as a fee. If the tenancy does not go ahead, the money is returned to the person who did not become a tenant of that property (se paragraph 9 of the third witness statement). Section 85 of the Act excludes rent and tenancy deposits as being relevant fees.

23. The relevant parts of Ms Harris’s evidence (on behalf of LB Barnet) are: a. In each of the Tenancy Agreement provided by Home London, clause 1.2 states that “The Landlord’s Agent shall mean Home London Ltd or such other agents as the Landlord may from time to time appoint”. Various clauses refer to matters being left at the Landlord’s Agent’s premises. She suggests that Home London are both Landlord and Agent. b. As the Certificates are displayed in their offices, they must also be displayed on any website of the business. c. Screen captures on 18 April 2024, and 10 June 2024 show that Home London called themselves an “Agent”. d. A holding deposit is a “fee” and is covered by the Act ’s requirements to display fees.

24. Relevant parts of the First-tier Tribunal (Property Chamber) (Residential Property) decision LON/00AC/HTD/2024/0001 (pages 301 to 304 of the Bundle) fare: a. Heading (page 301): the Applicant is referred to as Home London. b. Paragraph 2 (page 302): “This is an application by the applicant Letting Agent”. c. It was about LB Barnet’s decision to impose a £5,000 financial penalty on the Applicant landlord as they repaid only £350 of a £500 holding deposit to tenants. d. Paragraph 14 (page 304): the Tribunal found that more than on week’s rent was charged to the tenants, but that was not the offence for which the Financial Penalty was imposed. e. Paragraph 18 (page 304): the Respondent has failed to prove an offence, and the amount of financial penalty was excessive and unreasonable. Discussion

25. In summary: a. Home London’s argument appears to be that they are not a letting agent, therefore FPNReg and FPNCRA should not have been issued. If a penalty should be issued, they each should be for less than the maximum penalty allowed and the cumulative effect of them should be considered. b. LB Barnet’s argument in reply to that of Home London is stated to be a Letting Agent within the Tenancy Agreements provided by Home London. A holding deposit is a fee which must be displayed.

26. An Assured Shorthold Tenancy is a tenancy which (at least at the present time) enables a landlord to obtain possession without giving a reason for wanting to evict the tenant. All other tenancy types require a landlord to prove something in order to evict. Home London decided to use Assured Shorthold Tenancies to let many (perhaps all) of its properties. Within the standard terms of their Assured Shorthold Tenancy, Home London, at clause 1.2 wrote: The ”Landlord’s Agent” shall mean Home London Ltd or such other agents as the Landlord may from time to time appoint.

27. In this appeal, Home London seek to ask the Tribunal to disregard their own label of being a Landlord’s Agent and to find that they are only the Landlord. If that is so, then who must a tenant pay rent to, after all clause 1.7.2 provides (my emphasis): The Rent shall be paid clear of unreasonable or unlawful deductions or set off to the Landlord’s Agent by banker’s standing order or such other method as the Landlord’s Agent shall require.

28. Clause 2.4.1 does not make sense as it provides (my emphasis): The Tenant agrees to forward any correspondence address to the Landlord and other notices, orders and directions affecting the Landlord to the Landlord’s Agent without delay. If a relevant Local Authority gives notice of makes an order in respect of the Property which the Tenant receives at the Property, the Tenant shall provide full particulars to the Landlord’s Agent promptly and as soon as reasonably practicable. ….

29. If Home London are only a landlord, then the wording of the above clause 2.4.1 would enable a Tenant to not send any correspondence, etc to anyone. They have agreed to send it to the Landlord’s Agent and, if that person does not exist, then who are they meant to send it to.

30. I find, therefore, that Home London are Letting Agents for the purposes of the Act and the Regulations.

31. Home London accept that they take holding deposits, at least sometimes, saying that it is applied to the rent or the tenancy deposit. For it to be applied to rent or a tenancy deposit, the “holding deposit” must be a different thing (otherwise it would simply be “rent” or “deposit”. The purpose of the holding deposit must be to enable the tenant to a sure that they will get the property, once a Tenancy Agreement is signed. The holding deposit is not, therefore, needed as security for any obligation or liability on the tenant. In fact, it is actually imposing an obligation on the landlord, namely to rent to the tenant who has put money on the table to reserve the property.

32. I find, therefore, that Home London, when taking holding deposits, is charging a fee which must be displayed in accordance with section 83 of the Act .

33. I turn to the question of the amount of the penalties. Most of the grounds of appeal are not set out. I do take account of the fact that I should put appropriate weight on the decision of LB Barnet, as the Regulator.

34. I note that the Regulations permit a maximum penalty of £30,000, therefore FPNReg is not, it appears to me, for the maximum amount. FPNCRA is for the maximum permitted by the Act .

35. The point I will start with is setting out that it is of concern that Home London (via its Director) has failed to fully appreciate its regulatory duties. No aggravating factors appear to be present here. I can find some mitigation: a. Mr Borozwan’s evidence (uncontested by LB Barnet) is that Home London deals with holding deposits properly by returning them promptly if no tenancy is agreed and crediting the amount to the deposit when a tenancy is created. b. The only fee which should have been displayed was that of holding deposit. No other fees are payable. c. Mr Borozwan was let down by the web designer who failed to upload the information when instructed. This mitigation is not great as it was Mr Borozwan’s duty to ensure that he complied and he did check on his web designer’s actions.

36. I also take account of the unaudited accounts Home London have provided (pages 166 to 168 of the Bundle). As at 29 September 2023, Home London’s net assets were £14,093. The penalties which amount to a total of £10,000, was just over 33% of Home London’s net assets. As a percentage that is relatively high. Conclusion

37. As set out above, I find: • Home London are Letting Agents for the purposes of the Act and the Regulations. • Home London sometimes takes a holding deposit from a tenant. • When Home London takes a holding deposit, it is not a deposit as defined in section 212(8) of the Housing Act 2004 and is a fee which must be published.

38. I partially allow the appeals. For FPNReg, the amount is reduced to £2,500, for FPNCRA the amount is also reduced to £2,500. The total amount is £5,000. It must be paid within 28 days of the promulgation of this decision. Signed District Judge Worth Date: 25 th November 2025