In Cobb and others v Jahangir (deceased) (by his personal representative) [2022] UKUT 201 (LC) the appellants argued that the First-tier Tribunal had been wrong to dismiss their application for a rent repayment order on the basis that there was insufficient evidence for them to prove their case beyond a reasonable doubt. The Upper Tribunal (Lands Chamber) agreed.
The respondent landlord was the freehold owner of a house in multiple occupation situated on Streatham Hill, London SW2. In August 2017, he let the whole of the property to the appellants. The HMO was managed on his behalf by professional managing agents. The property was required to be licensed, but was unlicensed contrary to section 72(1) of the Housing Act 2004.
In October 2020, the appellants applied to the FTT for an RRO in the total sum of £39,580. In their application, they asserted that the property satisfied the standard test for an HMO under section 254. Further, it met the criteria for licensing under the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 and 2018, in that it was a three-storey property let out to five unrelated persons. The appellants also claimed that the total rent was split equally amongst them. The application failed to mention that in breach of the terms of their tenancy the appellants had sublet some of the rooms. The appellants’ application was signed with a statement of truth.
The respondent filed and served a statement of case and witness statement in response to the application. He admitted that the HMO was unlicensed during the relevant period. He also relied on the statutory defence of reasonable excuse set out in section 72(5); arguing that he had left the management of the property to his agents.
By the time of the FTT hearing, the respondent landlord had passed away. His estate was represented by his daughter, as personal representative. At the start of the hearing the appellants’ legal representative disclosed that the appellants had each contributed different amounts to the total rent and that some rooms had been sublet during the course of the tenancy. The appellants’ legal representative sought permission to adduce further written statements setting out the nature of the rental payments and the subletting. The FTT refused. It observed that the appellants had chosen not to file witness statements on which they could rely on as their evidence-in-chief or be cross-examined. The FTT dismissed the application on the basis that without any witness statements on the part of the appellants, evidentially, they could not prove beyond a reasonable doubt that the landlord had committed the offence.
In allowing the appellants’ appeal the UT observed that whether a property was an HMO or not did not depend on whether the people in occupation were tenants, subtenants or a mixture of the two. It depended only on the number of people in occupation and their living arrangements. The UT found that it had not been the respondent’s case that less than five people were in occupation of the HMO at any one time during the relevant period. The appellants’ application, which bore a signed statement of truth, set out the basis of their application and could be relied on as evidence.
The UT found that the issues the FTT had to determine concerned whether the respondent was the person in control of or managing the HMO. That was a question of law and the undisputed fact was that the landlord was in receipt of the rent. Finally, the burden of proving the statutory defence of reasonable lay with the respondent landlord and not the appellants. The FTT should have permitted the appellants’ to adduce further evidence and determined the appellants’ application.
Elizabeth Dwomoh is a barrister at Lamb Chambers
