Housing – Rent repayment order – House in multiple occupation – Appellant subtenants applying for rent repayment order against respondent landlords based on alleged offence of managing house in multiple occupation without required licence – First-tier Tribunal (FTT) dismissing application – Appellants appealing – Whether FTT erring in finding offence not proven beyond reasonable doubt – Appeal dismissed
In November 2019, the first respondent took an assured short-hold tenancy of a four-bedroom house in Newham for a period of two years at a rent of £3,200 a month. It included a term that the tenant would not sublet the property without the prior consent of the landlord. The first respondent did not intend to occupy the property herself; nor did she ask for consent to sublet.
However, the respondents intended to let the property to subtenants. The living room was also to be used as a bedroom so that there would be five tenants at any one time. The appellants became subtenants of the property as persons who did not form a single household.
In July 2020, the arrangements came to the attention of the landlord’s agent, who immediately required the first respondent to bring the sub-tenancies to an end, which she promptly did. In October 2020, the appellants applied to the First-tier Tribunal (FTT) for a rent repayment order against the respondents under section 41 of the Housing and Planning Act 2016.
Their application was based on an alleged offence contrary to section 72(1) of the Housing Act 2004 of managing or being in control of a house in multiple occupation (HMO) without a licence. It was supported by a schedule identifying the dates of occupation of each of the five rooms and the names of the occupiers. The schedule said nothing about whether the appellants occupied the accommodation as their only or main residence to satisfy the condition in section 254(2)(c) of the 2004 Act.
The FTT dismissed the application. The appellants appealed contending that the FTT had erred in finding that the offence under section 72(1) had not been proven beyond reasonable doubt.
Held: The appeal was dismissed.
(1) Section 254(2) of the 2004 Act contained the standard test of an HMO. A building or a part of the building met the standard test if: (a) it consisted of one or more units of living accommodation not consisting of a self-contained flat or flats; (b) the living accommodation was occupied by persons who did not form a single household; (c) they occupied the living accommodation as their only or main residence or were treated as so occupying it; (d) their occupation of the living accommodation constituted the only use of it; (e) rent was payable by at least one of the occupiers; and (f) two or more of the households who occupied the living accommodation shared one or more basic amenities.
(2) It was not necessary to have first-hand evidence from all the occupants of a house to prove its status as an HMO beyond reasonable doubt. Direct evidence from some of the occupants, perhaps supported by collaborating documents, might be sufficient to prove beyond reasonable doubt that the necessary conditions were satisfied. It was open to the FTT to draw inferences from facts which it found to be proven, provided it was satisfied to the criminal standard of proof: Opara v Olasemo [2020] UKUT 96 (LC); [2020] PLSCS 55 and Mortimer v Calcagno [2020] UKUT 122 (LC) followed.
Whether a person occupied property as a residence was a question of fact. Guidance on the quality of occupation which was required and factors which would indicate that the requirement was satisfied could be obtained from decisions of other courts and tribunals, but the question remained a question of fact in every case. It was a question which arose in a number of different statutory contexts including, for example, in cases concerning liability for property taxes: Bradford Metropolitan City Council v Anderton [1991] RA 45 and Williams v Horsham District Council [2004] EWCA Civ 39; [2004] PLSCS 15 considered.
(3) The difficulty for the appellants in the present case was that there was no evidence directly addressing the quality of the fifth tenant’s occupation of the property or the facts relevant to it. Nothing was known about her other than that she had paid a rent for a room for a period of three months and had moved belongings into the property. The facts known to the FTT were not inconsistent with a number of different possible life stories. The FTT might have felt able to exclude those possibilities if it had been told anything at all about her, but it was not.
A right of appeal was available in a rent repayment case whenever a person was aggrieved by the decision of the FTT: see section 53(1) of the 2016 Act. Nevertheless, the UT’s approach to FTT decisions on issues of fact was clear. The tribunal would only set aside a decision on an issue of fact where it was not supported by any evidence or where the decision was one which no reasonable tribunal could have reached. Any conclusion short of that extreme position would be insufficient to justify the UT in interfering with the FTT’s decision.
The FTT was entitled to conclude that there was no evidence bearing on the critical question of whether the property was her only or main residence.
Per curiam: This case was an example of the dangers of adopting a formulaic, tick box approach to the evidence necessary to prove the elements of a criminal offence to the required criminal standard. The pro-forma witness statements relied on by the appellants omitted to mention one of the critical conditions. It was impossible to find in them any material from which to begin to form an impression of the appellants and their house mates. Those of the appellants who attended the FTT hearing and gave evidence were able to make good the shortcomings of their written statements, but nobody seemed to have noticed the need for evidence concerning the quality of the occupation of those who were not giving evidence, proof of whose status was essential. The appellants would have been better advised to state the facts relevant to their occupation in their own words and explain what they knew of the others who were not to be called to give evidence. Had they done so the outcome of the application might have been very different.
George Penny (of Flat Justice Community Interest Co Ltd) appeared for the appellants; Iain Colville (instructed by Dumonts Solicitors) appeared for the respondents.
Eileen O’Grady, barrister
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