8, Cliff Avenue, Salford M7 2HN MAN/00BR/HMF/2023/0013
DECISION
[1]25 The Tribunal must firstly consider whether the Applicant has made a valid application. For this to be the case it must be made within 12 months of the licence being granted. In this case the licence was granted on 19th July 2022. That is the date at which an offence of operating a HMO without a a licence, if such an offence has been committed, ceases to be committed. Mr Katende’s application is dated 22nd March 2023. It is therefore an application made within the timescale provided for on Section 41 H&PA 2016 as set out in paragraph 10, above.[2]26 The offence most relevant to the matter now before the Tribunal is that set out in paragraph 15 above, that of operating an HMO without a licence when a licence is required. The Tribunal asks itself if this is the case? The answer is that it is. The property requires a licence and it is managed or controlled by the Respondent without a licence for the period relevant to the Applicant’s claim: 4th November 2021 to 18th July 2023.[3]27 It is important to note that committing an offence is not synonymous with being convicted of an offence in a court exercising a criminal jurisdiction, but is regarded as requiring any decision as to such an offence being determined, where there is a need to do so, on the criminal burden of proof.[4]28 The Respondent suggests that there is a reasonable excuse for the failure to license available to it to extent that it was reasonable to continue to operate the house whist the application was pending, given the responsibility for the delay fell upon the Council and not on the Respondent.[5]29 The Tribunal has some sympathy with the situation in which the Respondent found itself given the delay that it encountered in what the Tribunal regards as the unconscionable tardiness in dealing with the information provided by the Respondent.[6]30 This sympathy is, however eroded by the inaction of the Respondent in the period from acquiring 8, Cliffe Avenue until the revocation of the licence of the previous landlord on 4th November 2021. A licence is personal to the current landlord. It is not a licence attached to the property. The Respondent indicated to the Tribunal that it knew the house to de an HMO. Although it is new to the HMO regime, it was on notice that some sort of legislative regime might apply to it. It also had professional advice it the time of purchase and continuing input from the managing agents. It is the Tribunal’s view that ignorance of the law is not an excuse, particularly in the circumstances that are outlined here. Only another non-relevant matter brought the absence of a licence to the attention of the Council the unlicensed period, otherwise the unlicensed period would have continued. In these circumstances the Tribunal is so satisfied that it is sure that for the relevant period from 4th November 2021 to 18th November 2022 an offence was being committed. The Tribunal does acknowledge that any culpability is greatly mitigated by the actual conduct of the Respondent in pointing out the errors of the Council and being pro-active in pushing progression of the application. Had the Tribunal been dealing with the offence itself those matters would undoubtedly been taken into consideration as mitigation for any offence, but these proceedings for a rent repayment order are a further step along the pathway of the licensing regime.[7]31 Should the tribunal make an order? Mr Katende has done nothing wrong. He simply asks the Tribunal the make an order for which parliament has determined he should have the right to make. If the Respondent had done what it should have done, at the time when it should have been done the position might have been regarded differently. It did not do so and the Tribunal is of the view that an order should be made in the Applicant’s favour.[8]32 He is entitled to claim rent paid for the period when there was no licence. He paid council tax in his rent, which appears to be acknowledged as being £20.00 per 4 weeks. The landlord should bear no responsibility for repaying this[9]33 The Tribunal also understands that from that net rent the Respondent paid for the tenants utilities of: Broadband £1.25 per week Water £2.66 per week Gas and electricity £10.38 per week The respondent should not be out of pocket in respect of these costs that have been incurred on the Applicant’s behalf.[10]34 The Tribunal therefore determines that a rent repayment order in an amount of £2,324.64 should be made in favour of the Applicant in this matter. The calculations of the Tribunal are shown in Appendix 1[14]Period 4/11/21 to 18/7/22 = 8 months 14 days or 36 weeks 4 days (36.57 weeks) or 256 days.[15]Inputs• The rent from 4/11/21 to 10/2/22 was £308 per calendar month. Thereafter it increased to £390 per calendar month.• Council tax was charged at £20 every 4 weeks (£5 per week).• Gas and electricity was charged at £10.38 per week.• Water was charged at £2.66 per week.• Broadband was charged at £1.25 per week.[16]Gross Rent November 2021 = 26/30 x £308 = £266.93 December 2021 = £308.00 January 2022 = £308.00 February 2022 = 10/28 x £308= £109.99 18/28 x £390 = £250.71 March – June 2022 = £390 x 4 = £1560.00 July 2022 = 18/31 x £390 = £226.45[17]Total £3030.08[18]Deductions Council tax = £5 x 36.57 = £182.85 Gas & Elec = £10.38 x 36.57 = £379.60 Water = £2.66 x 36.57 = £97.28 Broadband = £1.25 x 36.57 = £45.71[19]Total £705.44[20]Net amount £2324.64