9, Merton Place, Birkenhead, Wirral CH43 4XD MAN/00CB/HSE/2018/0001
DECISION
[1]30 It is clear that on 21st November 2017 the Respondent was managing or controlling an unlicensed dwelling when a licence was required. The Magistrates’ Court was entitled to convict him. What is less clear is whether the wording of section 43(1) of the Act (see paragraph 14, above) would allow the Tribunal to come to a different conclusion. It appears the Tribunal must be satisfied beyond reasonable doubt that an offence has been committed “whether or not the landlord has been convicted”. 31 On this occasion, as an exercise in caution, the Tribunal has taken that to envisage a tribunal reaching a conclusion of guilt in the absence of a conviction in a court exercising a criminal jurisdiction. And did not in any event see anything to suggest an offence had not been made out.[2]32 It was, however, concerned as to the chain of events that had put the Respondent in the position he now is. The pursuit of the larger initial amount by the Council turned upon an incorrect assumption of liability for the while of a twelve-month period. An opportunity to consider extenuating circumstances, relating to both the Respondent and Mrs Smyth appears to have been missed on more than one occasion. One of those may have been the conviction of the Respondent in his absence, deals with the situation it finds before it, and in relation to his somewhat idiosyncratic dealings with the Applicant and the Tribunal he may not have provided himself with the best services. In addition, the Tribunal has what is probably a better picture of the Respondent’s financial circumstances than has hitherto been available.[3]33 The Tribunal is not, in the case of an application by the local housing authority, forced to make a binary choice of all, or nothing, but has the ability to make an order in any amount up to the full amount of the benefit paid in the relevant period.[4]34 The Tribunal now views the situation that pertained in respect of 9, Merton Place with the benefit of some considerable hindsight. In addition to what has been noted above, it is clear accommodation was provided to the tenant, in respect of which there is no suggestion of any member of the Smyth family acting as a rogue landlord in any recognised sense of that term. It would appear there has been no personal gain to the Respondent in the relevant period, other than a conceivable enhancement of the estate, but that is not clear. They are not, and were not, apparently, professional landlords.[5]35 It might be reasonable to assume that had the tenant not lived at Merton Place, accommodation provided might have led to an equivalent entitlement to housing benefit. On that basis the council has not necessarily lost money on behalf of its taxpayers.[6]36 The Act clearly envisages a discretion on the part of the Tribunal as to the making of an order or not. It considers that on this occasion, against the background set out above, it is appropriate not to make any order.