Housing – Rent repayment order – House in multiple occupation – First-tier tribunal making rent repayment order in favour of respondents – Appellant appealing — Whether application made within time – Whether offence committed in “period of 12 months ending with the day on which the application is made” – Whether FTT making proper assessment of appellant’s defence of reasonable excuse – Appeal allowed
The property at 4 Biscay Road, London, W6, was a large house belonging to the appellant and his wife and was their family home from 1993 to 2000 when the property was rented out.
With effect from 5 June 2017, the local authority designated the area in which the property was situated under section 56 of the Housing Act 2004 as an area of additional licensing of houses in multiple occupation (HMOs).
In 2018, while the appellant was living abroad, he entered into an agreement with an agent to manage the property which expressly provided that the agent would immediately apply for any licence required to operate the property as an HMO. When the agent collapsed, the appellant managed the property himself.
Between June 2021 and March 2022, the five respondents separately became tenants of individual rooms in the property. They had all left by May 2023.
The First-tier Tribunal subsequently made rent repayment orders in favour of the respondents requiring the appellant to repay to them rent totalling £33,668 paid while they were tenants of his unlicensed HMO.
The appellant appealed, arguing the application submitted to the FTT on behalf of the respondents was made a day late, so the FTT did not have jurisdiction to make any rent repayment order. Further, the FTT had not dealt sufficiently with his defence of reasonable excuse that he had let rooms to the respondents believing it had been licensed by his former agent.
Held: The appeal was allowed.
(1) Section 41(2)(b) of the Housing and Planning Act 2016 Act provided that a tenant might only apply for a rent repayment order if the offence was committed “in the period of 12 months ending with the day on which the application is made”.
The general rule of interpretation was that where a contract or a statute required that something be done within a certain number of months, the period ended on the day of the appropriate subsequent month that bore the same number as the day of the earlier month on which the period began (the corresponding date rule).
In Moh v Rimal Properties Ltd [2024] UKUT 324 (LC); [2024] PLSCS 188 (determined after the decision of the FTT in the present case), the tribunal decided that in section 41(2)(b), the “12 months ending with the day on which the application is made” was a period which ended with, and included the whole of, the day on which the application for a rent repayment order was made; and no offence under section 72(1) of the 2004 Act was committed by the landlord of an unlicensed HMO on the day on which an application for a licence was duly made. In reaching the first of those conclusions the tribunal decided that on the proper construction of section 41(2)(b), the corresponding date rule did not apply.
(2) On the basis of the decision in Moh, the relevant period of 12 months in this case ended on 27 November 2023, and included the whole of that day. The first day of the 12-month period was 28 November 2022. The appellant applied for an HMO licence on 29 November 2022, and was therefore committing no offence on that day, but (subject to his defence of reasonable excuse) he had been committing an offence on the previous day.
As that was the first day of the period of 12 months ending on 27 November 2023 the application would have been made in time since an application was “made” for the purpose of section 41(2)(b) when it was sent electronically and not when it arrived or was opened or processed by the tribunal: Jevan v Athansiadi [2024] UKUT 358 (LC); [2024] PLSCS 200 followed.
(3) The tribunal rejected the appellant’s argument, relying on section 127 of the Magistrates Courts Act 1980, that the FTT could not be satisfied that an offence of being in control of or managing an unlicensed HMO contrary to section 72 of the Housing Act 2004 had been committed as, by the time the application was made, it was too late for a prosecution to be brought in the magistrates court. The expiry of a statutory limitation period did not rewrite the past or undo an offence which had already been committed, and a rent repayment order could be made despite there no longer being any possibility of a prosecution being brought for a relevant housing offence.
(4) There was no evidence in the present case of when the email was received, nor was the FTT asked to consider that question. In any event, if receipt was necessary before an application was made, there was no good reason to treat the moment of receipt, whatever the hour of day, as the relevant point in time. In this case, the only evidence was of the date the email was sent and, in the absence of evidence to the contrary, that should also be taken as the date of receipt. On that basis the application was made within time. Therefore, the FTT had jurisdiction to make a rent repayment order.
(5) The FTT’s description of the defence was poorly phrased but not substantially inaccurate. However, it was clear that the FTT did not properly consider the defence on which the appellant relied. A property tribunal considering a defence of reasonable excuse might usefully ask itself three questions: (i) what facts were relied on as amounting to a reasonable excuse; (ii) which of those facts were proven; and (iii) whether, viewed objectively, the proven facts provided an objectively reasonable excuse for the conduct of the appellant, taking into account their experience and other relevant characteristics. It was for each panel to make of that suggestion what it would, but the first step at least was essential, and in this case it was missing: Marigold v Wells [2023] UKUT 33 (LC); [2023] PLSCS 31 considered.
The tribunal was satisfied that, if proven, the facts relied on by the appellant were capable of being accepted as a reasonable excuse. As the necessary findings of fact were not made, the FTT’s decision had to be set aside, and the appeal remitted to a differently constituted panel for redetermination.
Howard Lederman (instructed by Direct Access) appeared for the appellant; Peter Eliot (of Justice for Tenants) appeared for the respondents.
Eileen O’Grady, barrister
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