Housing – House in multiple occupation (HMO) – Licence renewal – Claimant applying to defendant local authority to renew HMO licence – Claimant refusing to supply tenant information or pay fee – Defendants serving section 16 notice requiring information about interests in property – Defendants deciding to prosecute claimant – Claimant applying for judicial review – Whether failure to process application unlawful – Whether defendants misdirecting themselves in law – Whether issue of section 16 notice unlawful – Appeal allowed in part
The claimant was the freehold owner of a property at 157, Mortlake Road, Kew Gardens, a house in multiple occupation (HMO), under Part 2 of the Housing Act 2004. In December 2013, the claimant applied to the first defendant local authority for renewal of his HMO licence. The claimant was asked to provide tenant information as required by Part 3.1 of the standard renewal form but refused to do so on the basis that the defendants were not entitled to require such information on a renewal application. He also declined to pay the application fee of £1,799 because he considered it to be unlawfully high.
The first defendant failed to issue a renewed licence and decided to prosecute the claimant in the second defendant magistrates’ court under section 72 of the Housing Act 2404 and section 16 of the Local Government (Miscellaneous Provisions) Act 1976 for failure to pay the required fee and to provide the names of all the occupiers of the property. Before the matter came on for trial, the claimant applied for judicial review.
The issues for determination were: (i) whether the failure to process the application had been unlawful, as the first defendants had misdirected themselves in law in requiring a fee of £257 per unit; (ii) whether the failure to process the application without the provision of information in Part 3 of the form had been unlawful; (iii) Whether the defendants had misdirected themselves in law in requiring information concerning the names of the occupiers; and (iv) whether the notice under section 16 of the 1976 Act had been unlawful.
Held: The appeal was allowed in part.
(1) If the claimant had been able to adduce a table of HMO licence fees charged by a large number of comparable local housing authorities demonstrating that the defendants were an outlier, that might have thrown an evidential burden on the defendants to explain why £257 per unit was proportionate. But the present case was well short of that. Moreover, section 63(7) of the 2004 Act expressly permitted the defendants, in fixing fees under section 63, to take into account all costs incurred in carrying out their functions under the relevant Part of the 2004 Act. They could not make a profit from the fees, in the sense of levying more from HMO licence applicants than was required to cover the overall cost of these functions. But it was not unlawful to charge the same for a renewal as for a first application. The fact that the defendants held reserves in their accounts relating to the HMO licensing scheme of between £63,000 and £75,000 for the three years of account ending in 2016 did not assist the claimant’s case. Therefore, the attack on the proportionality of the fee of £257 per unit as a matter of domestic public law failed. It follows that the claimant was not entitled to refuse to make payment in full when applying for the renewal of his licence.
(2) Section 63(4) of the 2004 Act stated that “the power of the authority to specify requirements under this section is subject to any regulations made under subsection (5)”. Section 63(6)(c) provided that such regulations (made by the secretary of state) might “specify the information which is to be supplied in connection with applications”. The use of the definite article was highly significant: the words “specify the information which is to be supplied” meant that it was only those items of information listed in the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 whose provision could be made mandatory by the local housing authority. The list was a maximum, not a minimum. If section 63(6)(c) had merely stated that the regulations might “specify information which is to be supplied” it would have been a minimum, and the defendants would have had a discretion to require more. Section 63(6) was not merely an aid to the construction of s 63(2).
(3) Following an amendment imposed by the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (Amendment) (England) Regulations 2012, the regulations no longer required occupants to be named on a renewal application, and accordingly the defendants’ insistence on the provision of information in box 3.1 before renewal was unlawful. However, there would be nothing wrong with an application form inviting the landlord to give names on a renewal application so long as it was made clear that that was voluntary. Furthermore, there was nothing unlawful in requiring the applicant landlord to sign a declaration, as in the present case, as to whether there had been any material change in the information submitted to the housing authority since the previous grant of a licence.
(4) By the time the section 16 notice was served the claimant had failed to pay the proper fee and was accordingly liable to prosecution. The purpose identified on the face of the notice was to enable the defendants to carry out their enforcement functions under the 2004 Act. The power to seek information under section 16 was a broad one. A notice of that kind could be served whenever the local housing authority considered that it ought to have information about the number of occupiers at the premises. It was not a request which could be made only at the time of a first application for an HMO, not only once every five years thereafter or when there was a change in ownership of the freehold. The HMO licensing regime established by Parliament in the 2004 Act clearly required local housing authorities to have proper powers of inspection and enforcement, and a section 16 notice was an appropriate means of obtaining information with a view to enforcement. Therefore, the section 16 notice had not been an unlawful attempt to circumvent the restrictions imposed by the 2012 Regulations on the information to be supplied with the renewal application.
Jonathan Manning and Alexander Campbell (instructed by Public Access) appeared for the claimant; Simon Butler (instructed by Richmond upon Thames London Borough Council) appeared for the first defendants; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
