Kathleen Victoria Chow & Anor v Nathan Skipper & Anor

A tribunal may admit fresh evidence on appeal where it was unavailable for the first-instance hearing, would probably have an important influence on the result, and is apparently credible. Where that evidence shows that the first-instance tribunal decided a rent repayment application on a crucial factual misunderstanding, the decision may be set aside in its entirety and re-determined.

A landlord has a reasonable excuse for controlling an unlicensed selectively licensed property where, despite taking every possible step to renew the licence, an understandable administrative error and failures in the licensing process caused the property to remain unlicensed. In those circumstances no offence is committed and a rent repayment order cannot be made.

The landlord appellants appealed against the First-tier Tribunal’s decision to make a rent repayment order of £11,012 in favour of their tenants. The property required a selective licence under Part III of the Housing Act 2004, but the previous licence had expired.

The landlords said that they had attempted to renew the licence, but had inadvertently renewed a licence for another property through the local authority’s online portal. On appeal they produced a later email confirming repayment of the unnecessary fee for that other property. The central issues were whether that fresh evidence should be admitted and whether the landlords had a reasonable excuse for the licensing offence.

1. Appeal allowed. The Tribunal admitted the local authority’s email of 19 November 2021 as fresh evidence. Applying Ladd v Marshall [1954] 3 All ER 745, the evidence did not exist at the time of the FTT hearing, would probably have had an important influence on the outcome, and was apparently credible.

2. The evidence established that the FTT had proceeded on a crucial factual misunderstanding. It would have shown that Mrs Chow genuinely believed that the relevant licence had been renewed when she told the managing agents that the fee had been paid. The FTT’s acceptance of the landlords’ admission of an offence was therefore flawed. The Tribunal set aside the decision in its entirety, including the finding that an offence had been committed.

3. The Tribunal re-determined the application. Although the landlords controlled an unlicensed property between 1 September 2019 and 16 July 2020, they had a reasonable excuse under section 95 of the Housing Act 2004. They had sought to renew promptly, contacted the local authority when its website was inactive, received no promised update, and paid a renewal fee as soon as the system permitted it. The portal enabled renewal of a licence for a property which did not require one, and the authority neither identified the error nor returned the unnecessary fee promptly.

4. Accordingly, the landlords did not commit the section 95(1) offence. There was no basis for a rent repayment order. The Tribunal did not need to determine the separate ground concerning the amount of the award, although it observed that Williams v Parmar [2021] UKUT 244 (LC) showed that an award need not equal the maximum recoverable rent.

• Upper Tribunal (Lands Chamber): allowed the landlords’ appeal, admitted fresh evidence, set aside the FTT decision in its entirety, and substituted a finding that the landlords had a reasonable excuse under the Housing Act 2004.

• First-tier Tribunal (Property Chamber): made a rent repayment order of £11,012, representing the rent paid during 319 days when the property was unlicensed.