Paul Fashade v Mailna Albustin & Ors

For a rent repayment order based on the management or control of an unlicensed HMO, the tribunal must consider statutory defences arising from the evidence, even where an unrepresented landlord has not identified them. A duly made and effective licence application engages the defence in section 72(4)(b) of the Housing Act 2004 from the date of the application.

In fixing the amount of an order under the Housing and Planning Act 2016, the tribunal must assess the seriousness of the offence. The rent received, less payments for utilities or services, is not a presumptive maximum award. The tribunal must then take account of relevant landlord and tenant conduct, financial circumstances and previous housing convictions.

The appellant owned an HMO which required a licence but was unlicensed during the respondents’ tenancies. The First-tier Tribunal made rent repayment orders after finding that the appellant had committed the offence of controlling or managing an unlicensed HMO.

On appeal, the appellant relied on evidence that he and his agent had attempted to renew the licence during the Covid-19 pandemic. He also challenged the First-tier Tribunal’s use of almost all rent paid as the award, subject only to small deductions for utilities.

The central issues were whether the evidence engaged either statutory defence to the licensing offence and whether the First-tier Tribunal had lawfully assessed the quantum of the rent repayment orders.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside and the applications were remitted to a differently constituted First-tier Tribunal.

2. The appellant’s own evidence of an online renewal attempt, unspecified further contacts and technical problems was too imprecise to establish a reasonable excuse under section 72(5) of the Housing Act 2004. A landlord who knows that an online application has failed must prove the further steps taken, their timing and outcome. An unanswered contact made well before the licence expired was insufficient.

3. However, the agent’s evidence, including the September 2021 email referring to the finalisation of the HMO renewal, was sufficient on the balance of probabilities to show that a licence application had been duly made by 9 September 2021. The defence in section 72(4)(b) therefore applied from that date while the application remained effective. The First-tier Tribunal had to identify that potential statutory defence from the primary facts notwithstanding the landlord’s lack of legal representation. It was wrong to find an offence after that date.

4. The First-tier Tribunal also erred in its approach to quantum. It treated the maximum recoverable rent, less small utility deductions, as the appropriate award unless specific mitigation justified a reduction. That approach failed to assess the seriousness of the licensing offence and failed to take account of potentially relevant evidence of the landlord’s and agent’s efforts to obtain a licence. The statutory requirement to consider the parties’ conduct under section 44(4) of the Housing and Planning Act 2016 is mandatory.

5. Remittal was necessary because findings were required on those matters and on the tenants’ allegations of harassment and breaches of covenant, which could also affect quantum if proved. The parties could place their additional appeal material before the remitted tribunal and seek directions within 21 days.

• Upper Tribunal (Lands Chamber): Allowed the landlord’s appeal, set aside the First-tier Tribunal’s rent repayment orders, and remitted the applications to a differently constituted First-tier Tribunal.
• First-tier Tribunal (Property Chamber): On 4 May 2022, made rent repayment orders under section 44 of the Housing and Planning Act 2016 after finding that the landlord had committed an offence under section 72(1) of the Housing Act 2004.