Flat 6, 688A-690A High Rd, Leyton, London E106JP LON/00BH/HSV/2025/0003
DECISION
[1]By an application dated 9th July 2025, the applicant appeals against the decision dated 11th June 2025 by the respondent local authority to revoke the selective licence granted him for the period 10th June 2021 to 9th June 2026 in respect of Flat 6, 688A-690A High Rd, Leyton, London E106JP. 2[2]The property is in a part of the London Borough of Waltham Forest which is subject to selective licensing. Pursuant to the licensing scheme, the applicant obtained a selective licence, so that he could let the property out as an ordinary residential letting. However, a house in multiple occupation (“HMO”) cannot be the subject of a selective licence. Instead there is a separate regime for a landlord to obtain an HMO licence in respect of an HMO. Thus if a property becomes an HMO, the local authority must revoke the selective licence, so that an HMO licence can be granted.[3]The issue for us to determine is whether the property did on 11th June 2025 require an HMO licence. The uncontentious facts[4]The property comprises a two-bedroom flat with a living room. The earliest tenancy agreement in evidence is a written tenancy dated 25th April 2023 granting Jonathan East a twelve-month tenancy at £1,200 per month. This tenancy agreement and the subsequent tenancy agreements to which we refer are in a standard form. Term (g) contains a prohibition on “shar[ing] occupation of the Property with any other person or persons except other tenants of the Property.” The terms include a reference to a deposit being payable, but no figure is specified for the deposit and it is unclear whether any deposit was ever paid in respect of this or subsequent tenancies.[5]The tenancy to Mr East alone was superseded by a fresh twelve-month tenancy in identical terms from 7th October 2023 granted to Mr East and Gianluca Pedicini jointly from that date. This tenancy in turn was superseded by a twelve-month tenancy in identical terms granted on 24th April 2024 to Mr Pedicini alone, again from this new date.[6]Mr Pedicini in fact moved out on or just before 6th November 2024. By that time, Jolanta Tiskeviciene had moved in. There is in evidence an unsigned tenancy agreement between Mr Iqbal and her granting a tenancy for six months from 4th November 2024 at a rent of £700 per month. This unsigned agreement is on the standard terms of the earlier tenancy agreements. There is an issue as to whether any binding tenancy agreement was in fact entered with Ms Tiskeviciene or whether any rent was paid. We shall come back to this issue.[7]The only live evidence we heard was from Elizabeth Killey, the local authority’s private sector housing team manager. She herself had no direct knowledge of the property or its occupants. She gave evidence of what resulted from the inspections carried out by officers of the Council in her team.[8]She says the first inspection of the property was on 12th September 2024 by Majisola Adepegba. Ms Killey does not produce any record of that inspection or give evidence about what was seen on the inspection. 3 Instead, what the documentary record reveals is that the respondent raised a demand for the production of documents from the applicant.[9]There was a further inspection on 14th February 2025 by Ms Adepegba. Her email record of the inspection says: “Property audit for possibly an HMO and confirmation of tenancy by one of the tenants, Ms Jolanta Tiskeviciene was carried out on 14th Friday 2025. I met Ms Tiskeviciene and her partner, Mr Vidmantas Daminauskas. During my inspection I established that the flat is on the second floor in a three-storey building. I confirm the property is operating as a bedsit HMO. There are 3 households and 5 occupants. The flat has 3 rooms and a separate bathroom but I could not get access into the third room. The 2 rooms that I gained access into have kitchen facilities each and one room which Ms Tiskeviciene occupies has both the kitchen and bathroom facilities. I confirm that Ms Tiskeviciene has 6 months tenancy agreement. As the property has a selective licence but is operating as an HMO, please can you decide to revoke the licence and HMO application to be submitted.”[10]It is unclear from this who the other three occupiers were. No questions were asked by Ms Adepegba as to whether the flat constituted the only or main residence of any of the occupiers.[11]On 14th April 2026 there was another inspection by a Mr Chaudhury. He noted that the occupants were Ms Tiskevience and her partner, Mr Daninauskas. In addition, there was a single man, Guntis Priedolins who occupied one room. These three told Mr Chaudhury that there were two other occupiers in the flat, however, they did not (so far as appears) tell him their names. No information was taken as to any of the occupiers’ occupations. Nor do they appear to have been asked if the flat was their only or main residence. All three confirmed that none of the occupiers were related to each other.[12]In the meantime, there is evidence that no rent was paid. The applicant’s managing agents said in an email to the Council of 17th February 2025 that the property was occupied by “illegal occupants—whom we initially believed were the previous tenants—[and who] stopped paying rent, leading to your request for a tenancy agreement for Jolanta Tiskeviciene which was provided on 8th January 2025 to prevent further loss of rent. However, [the applicant] has still not received rent since November 2024.”[13]In a subsequent email of 26th February 2025, the agents said: “Regarding Ms. Jolanta Tiskeviciene’s tenancy agreement, we appreciate your advice for her to obtain clarification from the Job 4 Centre. We will also follow up with them directly to understand their concerns and ensure that she has the appropriate documentation to process her housing benefit claim.”[14]The respondent wrote to the applicant on 18th March 2025 to inform him that it was minded to revoke his selective licence on the basis that the property was an HMO. The applicant responded the following day asking for advice on removing illegal tenants and on compliance with licensing requirements. The respondent responded by telling him to seek independent legal advice. That was followed by the revocation of the selective licence on 11th June 2025. The hearing[15]The applicant has shown convincing evidence that he is very grievously unwell and this was not challenged by the respondent. He did not attend the hearing, but instead appointed Mr Salman Hussain of his managing agents as his representative.[16]Although the applicant had made a witness statement, Mr Hussain indicated that he intended to adduce no evidence. In consequence we have paid no regard to the applicant’s witness statement. However, in the light of his health, we draw no adverse inferences against the applicant by reason of his failure to attend and give live evidence.[17]Ms Osler of counsel, who appeared for the respondent, indicated that she would have liked to have cross-examined the applicant. However, it is open to a party to adduce no evidence and that is what Mr Hussain consciously did on the applicant’s behalf. (There are procedures for a party to call its opponent as a witness and then seek to treat the witness as hostile, but this is vanishingly rare and Ms Osler indicated no desire to pursue this route.) The law[18]Section 254 of the Housing Act 2004, so far as relevant, provides: “(1) For the purposes of this Act a building or a part of a building is a ‘house in multiple occupation’ if—(a) it meets the conditions in subsection (2) (‘the standard test’); [0r](b) it meets the conditions in subsection (3) (‘the self-contained flat test’)… (2) A building or a part of a building meets the standard test if— (a) it consists of one or more units of living accommodation not consisting of a self-contained flat or flats; (b) the living accommodation is occupied by persons who do not form a single household (see section 258); 5(c) the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (see section 259);(d) their occupation of the living accommodation constitutes the only use of that accommodation;(e) rents are payable or other consideration is to be provided in respect of at least one of those persons' occupation of the living accommodation; and(f) two or more of the households who occupy the living accommodation share one or more basic amenities or the living accommodation is lacking in one or more basic amenities. (3) A part of a building meets the self-contained flat test if— (a) it consists of a self-contained flat; and (b) paragraphs (b) to (f) of subsection (2) apply (reading references to the living accommodation concerned as references to the flat)…”[19]Ms Osler accepted that the burden of proving that the property was an HMO on 11th June 2025 fell on the respondent. The standard of proof is the balance of probabilities. The issues before us[20]The applicant formulates his grounds of appeal as follows: “1. The property is illegally occupied, and I am actively pursuing legal steps to regain possession.[2]I have fully cooperated with the Council and submitted all requested documents and updates.[3]Due to my terminal illness, I have limited capacity to manage this situation and have appointed HW Group to assist.[4]The demand for an HMO licence under the current circumstances is unreasonable and disproportionate.[5]The Council has failed to respond to my formal representation dated 19th March 2025.[6]The Notice of Revocation issued on 11th June 2025 came without fair warning or engagement.”[21]We will consider the relevance of 1. below. 2. and 3. in our judgment are irrelevant to the legal issues in relation to the HMO.[22]As to 4., Ms Osler submitted that it was not open to the applicant now to submit that the property was not on 11th June 2025 an HMO. The sole complaint, she submitted, was that requiring an HMO licence was not appropriate in these circumstances; it was not a complaint that no HMO was required at all.[23]In our judgment this is too narrow a view. Under the Overriding Objective the Tribunal is obliged to avoid unnecessary formality and to be flexible. 6 Further it must ensure, so far as practicable, that the parties are able to participate fully in the proceedings. Tribunal procedure does not require the type of precise pleadings which are required under the Civil Procedure Rules, which govern the civil courts. It is in our judgment made sufficiently clear in his grounds of appeal that the applicant did not consider that an HMO licence should have been required. Accordingly, it was the Council to prove the property required an HMO licence. That in turn requires the respondent to prove that the property was in use as an HMO.[24]As to 5., this is not made out. The respondent, as we have noted, put the applicant on notice that it was minded to rescind the selective licence in its email of 18th March 2025. The applicant responded on 19th March 2025, but did not say anything of legal relevance to the proposed withdrawal of the selective licence. Notwithstanding that, the Council did in fact respond to his email. In our judgment, there is nothing in this point.[25]As to 6., the Council properly followed the relevant procedures by giving the notice of 18th March 2025 and then considering the applicant’s representations the following day. Again in our judgment there is nothing in this point.[26]It follows that the live issues for us to determine are 1. and 4., which overlap. The question is whether the property was an HMO on 11th June 2025. Was the property an HMO on 11th June 2025?[27]In order to determine this issue we need to go through the relevant statutory elements of an HMO, we set out in section 254(2) and (3).[28]Here the property is a self-contained flat, so section 254(3)(a) is satisfied. As regards, section 254(2)(b) the evidence is that there were at least three separate households between February 2025 and April 2026. The only use of the flat was as residential accommodation, so section 254(2)(d) is made out. The room occupied by Ms Tiskevience and Mr Daninauskas had kitchen facilities and an ensuite bathroom. However, the other two rooms shared a bathroom, so (regardless of what else might have been used jointly by the occupiers) section 254(2)(f) is satisfied.[29]This leaves section 254(2)(c) and (e) to consider.[30]Tiskevience and Daninauskas are Lithuanian names. Priedolins is a Latvian name. Where a tenant has a foreign connection, it is sometimes difficult to determine whether the English address of the person is their only or main residence, because such people may have their main residence in their home country.[31]Here, we note that Ms Tiskevience was claiming or trying to claim social security benefits. That in our judgment makes it unlikely that she would have a residence elsewhere. We find on balance of probabilities that Ms 7 Tiskevience and Mr Daninauskas had the flat as their only or main residence.[32]We cannot make a similar assumption about Mr Priedolins. We know nothing about him. We do not know if he was working. We do not know if he stayed permanently in the flat, or was using it, for example, to work in London during the week, whilst living in his main residence at weekends. In our judgment, it is not proven on balance of probabilities that the flat was his only or main residence.[33]The respondent’s case in respect of the two other occupants is even weaker. We know nothing about them whatsoever, not even their sex. In our judgment, again it is not proven on balance of probabilities that the flat was the only or main residence of either of them.[34]It follows that in our judgment section 254(2)(c) is not proven.[35]As to section 254(2)(e), the position is more nuanced. The tenancy agreement with Ms Tiskevience was not signed and we find on balance of probabilities that no rent was ever paid. That, however, is not necessarily fatal to the respondent’s case on this head. We accept Ms Osler’s submission that what matters is whether rent was payable, not whether rent was in fact paid. If Ms Tiskevience was under a legal obligation to pay rent pursuant to the unsigned tenancy agreement, then that would be sufficient to mean the whole flat was an HMO. By contrast, if she was a trespasser (or a tolerated trespasser), then her obligation to pay for her occupation would be by way of damages or mesne profits. Damages or mesne profits would not be “rent… or other consideration”, so section 254(2)(e) would not be satisfied.[36]The agent’s emails of 17th and 26th February 2025, which we have set out above, suggest that the unsigned tenancy agreement was only provided to her on 8th January 2025. Indeed it may have been the local authority’s housing benefit section which made the suggestion that an agreement should be prepared. It seems unlikely that any agreement for the letting of the whole flat had previously been agreed at £700 per month, because this was much less than the £1,200 per month paid by Mr East and Mr Pedicini. Indeed Ms Osler was constrained to accept that the agreement is more likely to have been intended to apply only to the renting of the room she and Mr Daninauskas were occupying.[37]We have found this a difficult question, but we find that the respondent has not proven on balance of probabilities that there was in fact a tenancy agreement between the applicant and Ms Tiskevience. The agreement was never signed and no rent was ever paid. These are indications that no tenancy was in fact granted. Against that is the fact that the unsigned agreement was provided in order to assist Ms Tiskevience in obtaining housing benefit, where the local authority housing benefit team would want evidence of a tenancy agreement. However, this does not mean that a tenancy had in fact been granted. However reprehensible it may be vis- 8 à-vis the Council which pays the housing benefit, the facts are consistent with the applicant and Ms Tiskevience not having yet entered legal relations. Accordingly, section 254(2)(e) has not been proven either.[38]It follows that the respondent has not proven that the property was in use as an HMO on 11th June 2025. Costs[39]The Tribunal has a discretion as to who should pay the fees payable to the Tribunal. These comprise the issue fee of £114 and hearing fee £227. Since the applicant has won, it is right to order that the respondent reimburse him for these monies. DETERMINATION(a) The appeal against the revocation of the applicant’s selective licence is allowed.(b) The respondent shall pay the applicant £341 in respect of the fees payable to the Tribunal within 14 days. Name: Judge Adrian Jack Date: 25th June 2026