Daisy Ojukwu v Chukwunyere Peter Onuoha

A landlord may have a reasonable excuse for operating an unlicensed HMO if, after a material change in occupation, they relied on incorrect licensing information published by the local housing authority. The tribunal must determine the landlord’s evidence, the date of the change, and the effect of the misinformation. It errs in law if it obtains website evidence itself without giving the parties a fair opportunity to address it.

When fixing a rent repayment order, the FTT must take account of the landlord’s financial circumstances under Housing and Planning Act 2016, section 44(4). Genuine but ineffective efforts to regularise licensing may mitigate the award. Payments for utilities must also be deducted from the rent repayment calculation.

Mrs Daisy Ojukwu, the landlord of a three-bedroom maisonette, appealed against a rent repayment order made in favour of her tenant, Mr Chukwunyere Peter Onuoha. The FTT had found that the property was an unlicensed HMO throughout the claimed period and had ordered repayment of £6,480.

The appeal concerned whether the landlord had a reasonable excuse under section 72(5) of the Housing Act 2004. She relied on steps taken after her licence application was refused and on allegedly misleading information on the local authority’s website. She also challenged the amount of the award, relying on mitigation, her financial circumstances, and utility payments included in the rent.

The central issue was whether the FTT had lawfully resolved the reasonable-excuse defence and calculated the rent repayment order.

1. Appeal allowed. The FTT decision was set aside and the matter remitted for redetermination by a different panel.

2. The FTT correctly concluded that the property required a licence throughout the relevant period, although it misunderstood the distinction between mandatory and additional licensing. Mandatory licensing depended on five or more occupiers, not three households. If the other tenant and her son had left in June 2021, the property would thereafter have required an additional licence as a three-occupier HMO.

3. The landlord’s invalid notices to quit and failure to seek a temporary exemption notice under section 62 of the Housing Act 2004 could not themselves establish a reasonable excuse. They were wholly ineffective steps to regularise the position. They could, however, be material mitigation.

4. The FTT erred by treating the local authority website as a correct statement of the law. On the wording recorded by the FTT, a landlord could have understood that a property with only two tenants did not require an additional licence. If the landlord consulted and relied on that information after the other occupiers left, it could provide a compelling reasonable excuse from that point. The FTT had neither recorded the relevant evidence nor found when the other occupiers left. It also obtained website material itself without allowing the parties to address it. The Upper Tribunal could not make the necessary factual findings.

5. On the amount of any rent repayment order, the FTT must take account of the landlord’s financial circumstances as required by section 44(4) of the Housing and Planning Act 2016. It should have checked whether the bundle contained evidence of means. Utility payments included within rent must be deducted in accordance with Acheampong v Roman [2022] UKUT 239 (LC) and the subsequent Upper Tribunal decisions cited.

• Upper Tribunal (Lands Chamber): allowed the landlord’s appeal, set aside the rent repayment order, and remitted the matter to the FTT for redetermination by a different panel.
• First-tier Tribunal (Property Chamber): FTT ref LON/OOBB/HMF/2023/0033. It found that the landlord had committed the licensing offence and made a rent repayment order of £6,480.