Richard O’Halloran v Cornwall Council

For a civil penalty for managing an unlicensed house in multiple occupation, the tribunal must be satisfied beyond reasonable doubt that the licensing offence was committed on the date alleged. Where the statutory threshold depends on five or more occupiers having the property as their only or main residence, there must be evidence from which that fact can properly be inferred for each occupier.

Direct evidence from every occupier is unnecessary. However, bare evidence that a person occupied a room, without evidence addressing the nature and quality of that occupation, may not support the required inference. If the requirement is not proved for a fifth occupier, the offence under the Housing Act 2004 is not established and no civil penalty may be imposed.

The appellant owned a five-bedroom property let by rooms to persons who did not form a single household. Cornwall Council alleged that, on 7 July 2022, he controlled an unlicensed house in multiple occupation and imposed a £15,000 civil penalty.

On a rehearing, the First-tier Tribunal found that five persons occupied the property as their only or main residence. It rejected the reasonable-excuse defence and imposed a £7,500 penalty. The Upper Tribunal granted permission on the sole issue whether there was sufficient evidence that the fifth alleged occupier, Doris Anyanwu, used the property as her only or main residence.

1. Appeal allowed. The finding that Doris Anyanwu occupied the property as her only or main residence on 7 July 2022 could not be justified on the evidence before the First-tier Tribunal.

2. A civil penalty under Housing Act 2004, section 249A requires proof beyond reasonable doubt of the underlying offence. On an appeal under Schedule 13A, the First-tier Tribunal conducts a rehearing and must itself be satisfied to that standard. For the section 72(1) offence, it was necessary to prove on the date alleged that the property required a licence.

3. Direct evidence from every occupier is not essential. The tribunal may infer that an occupier used the property as an only or main residence from surrounding circumstances. There must nevertheless be some evidence addressing the quality of that person’s occupation from which the inference can properly be drawn.

4. There was evidence that Doris occupied room 3, but neither council officer had seen her or her room. There was no evidence of when she arrived or left, her personal circumstances, her other accommodation, or facts indicating that the property was her home. The limited description given by another short-term occupier did not fill that evidential gap.

5. Only four persons had therefore been proved to occupy the property as their only or main residence. The section 72(1) offence was not established. The First-tier Tribunal’s decision imposing the £7,500 financial penalty was set aside.

• Upper Tribunal (Lands Chamber): allowed the appeal and set aside the First-tier Tribunal’s financial-penalty decision: [2024] UKUT 403 (LC).

• First-tier Tribunal (Property Chamber): on a rehearing of Cornwall Council’s civil-penalty decision, found the licensing offence proved and imposed a £7,500 penalty.