Nonyelu Chukwudozie Okoye v Leena Zachariah & Anor

For a reasonable-excuse defence to the offence of managing an unlicensed property, the tribunal must assess the circumstances preventing licensing and must not attribute blame on the basis of an irrelevant or unidentified duty. Where an online licensing portal rejects an application because the authority’s database does not recognise the property, the tribunal must consider whether the applicant took all steps reasonably open to them and whether the obstacle was within the authority’s control. An earlier, unrelated failure to secure registration for council tax purposes does not necessarily make the continuing excuse unreasonable. The rent-repayment-order time limit runs from the last date on which the offence was committed.

The First-tier Tribunal, Property Chamber, ordered Mr Okoye to repay £8,844.95 to Ms Zachariah and Mr Raju under the rent repayment order provisions. It found that he was their landlord and had committed the offence of controlling an unlicensed property contrary to Housing Act 2004, section 95(1).

Mr Okoye appealed on two grounds. He argued that the property belonged to his wife and that he was not the immediate landlord. He also argued that he had a reasonable excuse because the local authority’s licensing portal rejected an application for the separately created flat until its address was added to the authority’s database.

1. Landlord. The appeal on the landlord issue was dismissed. Although a rent repayment order may be made only against the landlord, the FTT was entitled to infer from the rent being paid to Mr Okoye, the tenancy agreement naming him as landlord, his engagement of the letting agent and the absence of any contrary explanation that he was letting on his own behalf. The person having control of the property for the purposes of Housing Act 2004, section 95(1), need not be the landlord; receipt of rent gave Mr Okoye control even if he had acted as his wife’s agent.
2. Reasonable excuse. The FTT’s approach was legally flawed. It treated the licensing portal’s failure to recognise the address as a lawful impediment and attributed responsibility to Mr Okoye for not ensuring earlier registration, without identifying any duty he or his wife had breached. The relevant question was whether, after the failed application, they had taken all steps open to them to obtain a licence.
3. The evidence showed that an application for the upper flat was accepted, while the application for No 1a was rejected because the portal did not recognise the address. The authority controlled the portal. The FTT should not have allowed a supposed duty concerning council tax or property registration to distract it from the licensing issue. The valuation-list duties under Local Government Finance Act 1992 lay with the relevant listing officer, and no notice requiring information had been served on the Okoyes.
4. The Tribunal substituted a determination that Mr Okoye had a reasonable excuse from 27 September 2022. He and his wife had taken all steps open to them, the portal continued to reject the application until 27 January 2023, and a licence application was then made within a reasonable time. No offence was committed on or after 27 September 2022. The rent repayment order application, made on 28 January 2024, was therefore out of time under Housing and Planning Act 2016, section 41(2), and was dismissed.

• Upper Tribunal (Lands Chamber): appeal on the landlord issue dismissed, but appeal on reasonable excuse allowed; the FTT’s decision was set aside and the rent repayment order application was dismissed.
• First-tier Tribunal, Property Chamber: ordered Mr Okoye to repay £8,844.95 under the rent repayment order provisions.