Clearsprings Ready Homes Limited, R (on the application of) v Swindon Magistrates’ Court

A literal statutory meaning should be preferred where the legislative scheme is coherent and workable. Courts may correct an obvious drafting error by adding, omitting or substituting words only where the statutory purpose, the drafting mistake and the substance of the intended provision are abundantly clear. That approach may apply in a criminal context where objective indicators provide fair warning of liability.

Under the Housing Act 2004, the definitions of “person having control” and “person managing” are complementary. Accommodation provided without rent from the occupier may nevertheless be licensed through a person having control. However, the Management Regulations contained an obvious drafting error by defining “manager” only by reference to a person managing. The definition was therefore read as including a person in control.

The claimant provided accommodation for asylum seekers under a contract with the Home Office. The accommodation was operated as houses in multiple occupation and was subject to the Housing Act 2004 and the Management Regulations.

Swindon Borough Council prosecuted the claimant for alleged breaches of the Management Regulations. The claimant applied to dismiss the charges, arguing that it was not a “person managing” under section 263(3) of the 2004 Act because asylum seekers paid no rent. The District Judge rejected the application, adopting a purposive construction of section 263(3).

The claimant sought judicial review of that ruling. The central issues were whether section 263(3) could be read as including payments made in respect of occupiers, whether the Management Regulations could apply to a person having control, and whether relief should be refused because the outcome would not have been substantially different.

1. The claim was dismissed. The District Judge’s reasoning on section 263(3) was erroneous, but her refusal to dismiss the prosecution was correct in substance.
2. Section 263 of the Housing Act 2004 provides complementary definitions. “Person managing” focuses on receiving rent or other payments from occupiers, whereas “person having control” focuses on entitlement to the rack rent. The statutory scheme therefore remains workable where accommodation is provided without payment by the occupier. A person having control, or that person’s agent or employee, may hold an HMO licence.
3. There was no basis for inserting “or in respect of” into section 263(3). The absence of such wording did not create an absurdity or drafting defect in that provision. The District Judge’s reliance on Parliamentary materials under Pepper v Hart was therefore unnecessary and illegitimate on the premise adopted.
4. The defect lay instead in regulation 2(c) of the Management Regulations. By defining “the manager” only as the person managing under section 263(3), the Regulations inadvertently excluded HMOs in which there was a person having control but no person managing. That result was inconsistent with the intended comprehensive regulation of HMOs.
5. Applying Inco Europe Ltd v First Choice and Bogdanic v Secretary of State for the Home Department, regulation 2(c) was read as referring to “the person managing or the person in control”, with the footnote referring to sections 263(3) and 263(1). The correction was sufficiently certain and did not cross the boundary into judicial legislation.
6. The principle of strict construction of penal legislation did not prevent that reading. It was not absolute, and the statutory context supplied sufficiently clear and weighty objective indicators of potential liability.
7. Under section 31(2A) of the Senior Courts Act 1981, relief was refused because the outcome would not have been substantially different. The prosecution was to continue, with the Magistrates’ Court determining whether the claimant was a person having control and whether the alleged breaches were proved. Judicial review of interlocutory magistrates’ decisions remains exceptional.

This was a judicial review claim in the Administrative Court against an interlocutory ruling of the Swindon Magistrates’ Court. The claim was dismissed and the matter was to return to the Magistrates’ Court for determination of liability.