Gaskin, R (on the application of) v Richmond Upon Thames London Borough Council & Anor

Under section 63 of the Housing Act 2004, a local housing authority may fix HMO licensing fees by reference to the overall costs of its statutory functions, but it may not make a profit. Charging the same fee for renewal and first applications is not unlawful merely because renewal may involve less work. Regulations made under section 63(5) determine the information which may be required with an application. Following the 2012 amendments, occupier details cannot be made mandatory on a renewal application where the Regulations no longer require them. A declaration addressing material changes remains permissible. The information-gathering power in section 16 of the Local Government (Miscellaneous Provisions) Act 1976 is broad and may be used for HMO enforcement outside the application process.

The claimant owned and occupied part of a house in multiple occupation which had previously been licensed under Part 2 of the Housing Act 2004. On applying for renewal, he refused to provide occupier details requested in the Council’s form and declined to pay the full fee. The Council refused to process the application, served a notice under section 16 of the Local Government (Miscellaneous Provisions) Act 1976, and prosecuted him.

The judicial review challenged the fee, the requirement for occupier information, and the section 16 notice. An EU law challenge based on R (Hemming (trading as Simply Pleasure Ltd) v Westminster City Council [2017] 3 WLR 317) was left unresolved pending further submissions.

The court allowed the challenge concerning the occupier information, dismissed the domestic-law challenge to the fee, and dismissed the challenge to the section 16 notice. Declaratory relief was granted on ground 2.

1. Licence fee. Section 63(7) of the Housing Act 2004 permits the Council to take into account all costs incurred in carrying out its Part 2 functions. It cannot profit by charging more than the overall cost of those functions. The provision does not require separate fees for initial and renewal applications. It was therefore lawful to charge the same fee for both. The evidence did not establish that the fee was disproportionate.
2. Renewal information. Section 63(6)(c), read with the amended Regulations, means that the information specified by the Regulations is the maximum information which the authority may make mandatory. After the 2012 amendment, occupier names were not required for a renewal application. The Council’s insistence on that information was unlawful. It could invite the information voluntarily and could require a declaration as to material changes since the previous licence.
3. Section 16 notice. The power under section 16 of the Local Government (Miscellaneous Provisions) Act 1976 is broad. It may be used where the authority considers that it needs information about land to perform its enforcement functions. It was not limited to the time of an initial application or to five-year renewal intervals, and the notice was lawful.
4. EU law and relief. The court did not determine the Services Directive issue. The claimant was directed to state whether he wished to pursue it. Although there had been undue delay, delay was irrelevant to the fee issue because that challenge failed, and the Council did not seek to deny declaratory relief on the information issue.

This was a judicial review claim in the Administrative Court. Permission was initially refused by William Davis J on grounds including delay and lack of substantive merit. Gross LJ later granted permission and any necessary extension of time. The Divisional Court then gave judgment, allowing ground 2, dismissing ground 1 on domestic law and ground 3, and recording that ground 4 had been discontinued.