Rachel Camfield & Ors v Nehizena Uyiekpen & Anor

To establish an unlicensed HMO offence for the purposes of a rent repayment order, the applicant must prove every element beyond reasonable doubt, including that the relevant occupiers used the property as their only or main residence. Residence is a question of fact. Direct evidence from every occupier is unnecessary, and inferences may be drawn, but the evidence must bear materially on the quality of the disputed occupation. A formulaic confirmation of statutory conditions will not necessarily suffice. On an appeal involving factual findings, the Upper Tribunal should intervene only where the finding is unsupported by evidence or no reasonable tribunal could have reached it.

The appellants sought rent repayment orders under section 41 of the Housing and Planning Act 2016, alleging that the respondents had committed the offence of controlling or managing an unlicensed HMO under section 72(1) of the Housing Act 2004. The First-tier Tribunal dismissed the application on 23 January 2022 because there was insufficient evidence that one occupier, Kate Tseng, had occupied the property as her only or main residence.

The appeal concerned whether the FTT was entitled to reach that conclusion, given evidence of Ms Tseng’s rent payments, three-month occupation and belongings, and whether the available evidence established the standard HMO test beyond reasonable doubt.

1. Appeal dismissed. The FTT was entitled to conclude that the offence under section 72(1) of the Housing Act 2004 had not been proved beyond reasonable doubt.
2. The standard HMO test under section 254(2) of the Housing Act 2004 includes the condition that occupiers use the living accommodation as their only or main residence. The licensing requirement also depended on the prescribed description in article 3 of the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2018, including occupation by five or more persons living in two or more separate households.
3. Whether premises are a person’s only or main residence is a question of fact. The authorities provide guidance, but no universal definition applies in every context. The relevant question is generally what a reasonable informed observer would regard as the person’s home at the material time. Relevant matters may include intention, duration and reasons for absence, legal interest, security of tenure, personal belongings, family residence and registration arrangements.
4. It is unnecessary to obtain first-hand evidence from every occupier. The FTT may draw reasonable inferences from the evidence. However, the known facts must bear on the quality of the disputed occupation and support the criminal standard of proof. Here, Ms Tseng’s rent, three-month occupation and belongings were equally consistent with several possible circumstances, including having a main home elsewhere.
5. Although the appeal jurisdiction in rent repayment cases is not confined to points of law, the Upper Tribunal will interfere with an FTT finding of fact only where it is unsupported by evidence or no reasonable tribunal could have reached it. The FTT was not obliged to draw unreliable inferences from the limited evidence. The pro-forma witness statements failed to address an essential element of the offence and the appeal was dismissed.

• Upper Tribunal (Lands Chamber): appeal against the FTT’s decision of 23 January 2022 dismissed.