10 Charles Avenue, Whitley Bay, NE26 11AG MAN/00CK/HMF/2024/0011
DECISION
Under s41(2)(b) of the Housing and Planning Act 2016 a tenant or a local housing authority may apply to the First-tier Tribunal for a rent repayment order against a person who has committed an offence to which this Chapter applies[34]In this case, there had been no prosecution by the Local Authority. As a consequence, the Tribunal needs to be satisfied, beyond reasonable doubt, that an offence has been committed.[35]Having heard the evidence the Tribunal is satisfied beyond reasonable doubt that an office was committed by both Respondents who had control and Management of a Property which was let by up to five people without an HMO licence. No licence existed for the Property until the 8th March 2023.[36]Mr. Sheardown was no novice to property management and indeed seemed to specialise in the ownership and management of HMOs. He ought to have been aware (even if the local authority were apparently not) of the 2018 Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 effective from 1 October 2018 which revoked the 2006 Order, and made licensing mandatory for all properties occupied by 5 persons or more (two or more households etc). They no longer had to be three storeys high.[37]The Respondents were in breach of this order until the licence was acquired on 8th March 2023. It appeared they were only motivated to apply for the licence to sell the Property.[38]The Tribunal further notes however that under s72 (4) of the Housing Act 2004, in proceedings against a person for an offence under subsection (1) it is a defence that, at the material time— (b)an application for a licence had been duly made in respect of the house under section 63, and that notification or application was still effective (see subsection (8)). Subsection (8) reads: for the purposes of subsection (4) a notification or application is “effective” at a particular time if at that time it has not been withdrawn, and … (a)the authority have not decided whether to serve a temporary exemption notice, or (as the case may be) grant a licence, in pursuance of the notification or application…[39]The application for an HMO licence was made by the Respondent on 3 August 2022. It was not granted until 8 March 2023. Mr Brown made his RRO application on 21 February 2024 (date stamped by FTT on 1 March 2024). S41 (2)(b) Housing and Planning Act 2016 requires that “the offence was committed in the period of 12 months ending with the day on which the application is made”.[40]The Tribunal finds that as of 3 August 2022 the Respondent had a statutory defence to the offence provided by s72 (4) of the Housing Act 2004 as an application for a licence had been made evidenced at page 140 of the Respondents bundle by an email from Mr. Ben Twizell to the Respondent.[41]The Applicant submitted his RRO application on the 21 February 2024. The offence was last committed on the 2 August 2022, as the submission of the application afforded the Respondents a full defence to the proceedings. The Applicants RRO application was therefore outside of the 12 month time limit required by S41 (2)(b) Housing and Planning Act 2016.[42]The application for a Rent Repayment Order is refused. Tribunal Judge John Murray 2 June 2025