A person managing a house in multiple occupation (HMO) must under the Management of Houses in Multiple Occupation (England) Regulations 2006 (the Regulations) make satisfactory arrangements in respect of the repair, maintenance, cleanliness and good order of the HMO. Pursuant to section 234(3) of the Housing Act 2004 (the 2004 Act) a person commits an offence if he fails to comply with the Regulations. In proceedings against a person for a breach of section 234(3) of the 2004 Act, it is a defence under section 234(4) of the 2004 Act if he had a reasonable excuse for not complying with the Regulations.
In IR Management Services Ltd v Salford City Council [2020] UKUT 81 (LC) the Upper Tribunal (Lands Chamber) (UT) had to determine who bore the burden of proving the defence of reasonable excuse – was it the appellant management company or the respondent local housing authority?
In March 2018, Salford City Council inspected an HMO under the management of the appellant. It found there to be breaches of the Regulations and imposed a civil penalty on the company in respect of those breaches. The company appealed to the First-tier Tribunal (FTT). It argued that pursuant to section 234(4) of the 2004 Act it had a reasonable excuse for not complying with the Regulations; namely, it had no knowledge that the house was an HMO. The property had been let to a private individual on terms that prohibited subletting or sharing.
On the evidence before it, the First-tier Tribunal (FTT) found that the director of the management company knew that the property was an HMO. Accordingly, on the balance of probabilities, the company had failed to establish that it had a reasonable excuse for not complying with the Regulations. The company appealed. It argued that, firstly, the FTT had been wrong to find it knew the property was an HMO in the absence of evidence to that effect. Secondly, the FTT was wrong to find that it bore the burden of proving the defence of reasonable excuse.
Relying on R v Evans [2004] EWCA Crim 3102; R v Charles [2009] EWCA Crim 1570 the appellant argued that the proper statutory interpretation of section 234 of the 2004 Act required subsections 234(3) and 234(4) to be read together. The absence of a reasonable excuse should be understood as an element of the offence itself. The UT disagreed.
Relying on R v Hunt [1987] AC 352 the UT noted that in statutory provisions in both Evans and Charles the defence appeared in the clause creating the offence. Such provisions had to be contrasted with offences to which a specific defence was identified in a separate statutory provision; in the latter type of case, it could be more readily inferred that parliament had intended to provide for a separate defence which a defendant must set up and prove if he wished to avail himself of it.
There was no justification for ignoring the separation of the elements of the offence and the defence in section 234 of the 2004 Act. The elements of the offence were set out comprehensively in section 234(2) of the 2004 Act. Those elements did not refer to the absence of reasonable excuse and therefore did not form an ingredient of the offence. It was not a matter for the prosecutor to establish. Separate from the description of the defence itself, section 234(4) of the 2004 Act provided the sole defence of reasonable excuse. The burden of proving that fell solely on the defendant.
Elizabeth Dwomoh is a barrister at Lamb Chambers
