Landlord and tenant – Rent repayment order – House in multiple occupation – Appellant tenant claiming rent prepayment order on basis of unlawful eviction and respondent landlord’s failure to obtain house in multiple occupation (HMO) licence – First-tier Tribunal refusing application – Appellant appealing – Whether appellant satisfying criminal standard of proof that respondent committed criminal offences complained of – Appeal allowed
The respondent was the registered proprietor of 90 Ennis Road, Plumsted, London, a mid-terrace house with a kitchen, bathroom and four other rooms on the ground and first floors, and a self-contained one-bedroomed flat in the basement. The appellant occupied a ground floor room at the property for £420 per month.
In June 2018, the local housing authority wrote to the respondent to say that it had information to suggest that the property was being used as a house in multiple occupation (HMO) without an appropriate licence. On 2 July 2018, the respondent applied to be placed on the electoral roll and claimed that she was living at the property.
In June 2018, the appellant was struggling to pay his rent on time. He said he wanted to leave once his immigration status was determined. At the time the respondent was having the interior of the property painted. She suggested that the appellant go and stay with a friend. On 6 July 2018, the respondent said she would not accept any rent from the appellant. Thereafter, the appellant was unable to enter his room, as his room key did not work, and his belongings had been put into black plastic bin bags and left in the kitchen.
The appellant subsequently applied for a rent repayment order under section 40 of the Housing and Planning Act 2016 on the grounds that he had been unlawfully evicted under section 1(2) of the Protection from Eviction Act 1977 and the respondent had been managing the property as a house in multiple occupation without a licence contrary to section 72(1) of the Housing Act 2004. The First-tier Tribunal (FTT) said that it was well satisfied, on overwhelming evidence, that the respondent controlled or managed the property and let each of the four rooms as bedrooms to individuals. However, the FTT refused his application because it was not satisfied to the criminal standard of proof that the respondent had committed the criminal offences either of unlawful eviction or of managing an HMO without a licence.
The appellant appealed arguing that the FTT should have been so satisfied, and did not take proper account of the evidence before it.
Held: The appeal was allowed.
(1) The FTT found that the appellant had not proved to the criminal standard the requirement for an HMO that the occupants be living there as their only or main residence: section 254(2)(c) of the Housing Act 2004. However, there was strong evidence that at least two of the other residents had their home at the property. The tenants were not people who were likely to have had a second home, including one who was the recipient of housing benefit.
In Williams v Horsham District Council [2004] EWCA Civ 39; [2004] PLSCS 15, the Court of Appeal said that a person’s main residence would generally be the dwelling that a reasonable onlooker, with knowledge of the material facts, would regard as that person’s home. In the present case, that was what a reasonable onlooker would conclude about all three men living at the property. There was strong evidence from which it could be inferred that the appellant and the two other residents lived at the property as their home, ie, their only residence. In the unlikely event that they had somewhere else to stay, nevertheless the property was their main residence. The FTT’s failure to find that element of the offence proved beyond reasonable doubt was irrational.
(2) As to the eviction, the appellant argued that once the FTT found that the appellant had a tenancy, there ought to have been a presumption that his departure was unlawful and it was incumbent on respondent to either rebut that presumption by establishing the tenancy was ended lawfully, or justify his departure by reference to a defence that the respondent reasonably believed that the appellant had ceased to reside there.
There was no presumption that the appellant’s departure was unlawful but the evidence pointed inexorably to the respondent having changed the locks and thrown the appellant’s things out, some of them in bags. It was unrealistic and unnecessary to require further evidence to meet the criminal standard of proof. So far as that offence was concerned the appeal succeeded. The appellant had proved to the criminal standard of proof that the two offences were committed, and therefore the condition precedent for the making of a rent repayment order was made out. The case would be remitted to the FTT for it to determine whether to make such an order and for what amount.
Per curiam: The FTT in its decision had been over-cautious about making inferences from evidence. For a matter to be proved to the criminal standard it had to be proved “beyond reasonable doubt”; it did not have to be proved “beyond any doubt at all”. At the start of a criminal trial the judge warned the jury not to speculate about evidence that they have not heard, but also told them that it was permissible for them to draw inferences from the evidence that they accepted. In the present case, there were obvious inferences to be drawn from the evidence, both about the eviction and about the circumstances of the other tenants. It might be that the FTT lost sight of those inferences and set the bar of proof too high.
The appellant was represented by Flat Justice; James Sandham (instructed by Portner solicitors) appeared for the respondent.
Eileen O’Grady, barrister
