Samantha Cobb & Ors v Nayyer Jahanghir (Deceased)

In a rent repayment order application, an agreed fact need not be proved unless the admission is withdrawn. Whether accommodation is a licensable HMO depends on the number and living arrangements of those occupying it, not on whether they are direct tenants or subtenants.

Documents setting out a party’s evidence, signed with statements of truth, may satisfy directions for witness statements despite an absence of formal witness statements. A tribunal must not exclude such evidence through a formulaic approach where the alleged deficiency is irrelevant to the issue requiring proof. The landlord bears the evidential burden of establishing the reasonable-excuse defence under Housing Act 2004.

Five joint tenants applied to the First-tier Tribunal (Property Chamber) for a rent repayment order concerning an unlicensed house in multiple occupation. The landlord admitted that the house was an HMO throughout the relevant period and that it was unlicensed, but relied on a reasonable excuse.

Shortly before the hearing, the tenants’ representative disclosed that two tenants had sublet their rooms for part of the period. The FTT refused an adjournment, further evidence and oral evidence because no formal witness statements had been filed. It then dismissed the application and made costs orders against the tenants and their lay representatives.

The tenants appealed, principally challenging the FTT’s case-management decisions and its conclusion that they had not proved an offence beyond reasonable doubt.

1. Appeal allowed. The FTT’s substantive decision and its costs orders were set aside. The application was remitted to a differently constituted FTT.

2. Applying the appellate approach in Broughton v Kop Football (Cayman) Limited [2012] EWCA Civ 1743, the Upper Tribunal held that the FTT’s case-management decisions were plainly wrong. The FTT had mistakenly treated the identity and status of those in occupation as fundamental to proof of the licensing offence.

3. The parties’ statements of case established by admission that the house was an HMO throughout the relevant period. Whether a property is an HMO under Housing Act 2004 depends on occupation, households and shared amenities. It does not depend on whether occupants are direct tenants, subtenants, or the same people throughout. The subletting evidence was therefore unnecessary to prove the offence unless the landlord withdrew the admission.

4. The grounds of application and statement of case, each signed by all tenants with statements of truth, met the directions’ minimal requirements for witness evidence. The FTT could not fairly exclude the tenants’ evidence merely because it was not contained in more formal witness statements. If an admission were withdrawn and created an evidential gap, fairness required an opportunity to fill it.

5. The unresolved issues were whether the landlord had a reasonable excuse and, if not, the appropriate amount of any order. The landlord bore the evidential burden on reasonable excuse. As joint tenants, the appellants could seek one joint order; the FTT was not required to determine their respective rent contributions or reduce an order because rent had been received from subtenants. Those matters could, however, inform discretion as to amount and conduct.

• Upper Tribunal (Lands Chamber): Allowed the tenants’ appeal in [2022] UKUT 201 (LC), set aside the substantive and costs decisions, and remitted the application to a differently constituted FTT.
• First-tier Tribunal (Property Chamber): Dismissed the rent repayment order application after refusing further and oral evidence, and made costs orders against the tenants and their lay representatives.