236, Southport Road, Ormskirk Lancashire L39 1LZ MAN/30UP/HMF/2020/0063-AND-0069-70
DECISION
[1]24 The first step in the process to determine the matter is for the Tribunal to determine if the relevant housing offence has been committed, notwithstanding there being no criminal conviction in any court exercising that jurisdiction. The Tribunal does have to establish such an offence to the criminal standard of proof, that it is so satisfied that the offence has been committed.[2]25 It has some sympathy with the Respondent’s position. These offences were introduced to assist with remedying the problem of “rogue landlords”. The Tribunal is satisfied that such a description is not applicable to Lixi Limited. There are however situations were landlords of better character get caught out. This is such an occasion.[3]26 Clearly, there is no application made for a licence until 16th September and then it is not complete as supporting documentation is missing. Mr Robinson may not have appreciated that situation, but he did have the assistance of professional managing agents. Furthermore, the Respondent was not so proactive as to have made enquires as to progress before the council made further enquiry as to the missing documentation.[4]27 Section 72(1) is quite explicit. It is an offence to have control or management of a HMO without a licence, unless there is a reasonable excuse for exercising such control or management without a licence. The Tribunal’s view is that there is no such excuse for not having a licence. Those factors that have been drawn to the attention of the Tribunal may amount to mitigation, but not a defence. The offence is one that continues until such time as the application is complete and can be processed by the council.[5]28 The Tribunal then moves on to consider whether an order should be made. It has taken into account all matters raised by the parties and considers these to be the most pertinent:(1) If a relevant offence has been committed the Applicants are entitled to make application for an order.(2) The Tribunal has a very wide discretion as to whether it should make an order, and if so for what amount.(3) The property was required to be licensed from 6th September. The Applicants took up occupancy of a property that needed to be licensed, but was not.(4) The culpability, noted above, on the part of the Respondent was limited in that it made application and remedied any defect in the application with reasonable haste, once the defects in the application were brought to its attention.(5) There appear to be only very limited issues raised in relation to the standard of accommodation provided and which the Applicants enjoyed, licensed, or not, for the whole of the tenancy.(6) That would appear to be borne out by the very limited requirements imposed upon the Respondents to secure a licence following the licensing application.(7) The Applicants are entitled to expect the Respondent to comply with statutory requirements in relation to licensing.(8) Neither party should be entitled to an unmeritorious financial benefit from a failure to comply with the requirements, either by an automatic return of all rent, or retention of undeserved rental payments from the period in which there was no licence.(9) The Tribunal must take into account those factors referred to in Section 44 H&PA 2016 as regards the conduct of the parties and the fact that the Respondent has no previous convictions. Clearly the Applicants’ conduct has not been an issue and the landlord cannot be regarded as having deliberately flouted the licensing requirements for financial gain.(10) The Tribunal accepts (as indeed did the Applicants) that the amounts charged for utilities within the rent should not form any part of the calculation of rent for the purposes of the order. It does not accept that any management charges of the agent should also be disregarded. The whole rent has been paid by the Applicants, it is no concern of theirs, as to how the Respondent applies it.[6]29 The Tribunal has sought to weigh all the relevant factors in order to reach what it considers to be a just and equitable determination for all parties. It is of the view that to reflect the matters raised in the preceding paragraph it is appropriate for an order to be made in favour of each Applicant for repayment of 2/3rds of the rent paid in respect of the period from 6th September to 24th November, allowing for the utilities payments that were made.[7]30 The Tribunal has effected the following calculations: Mr Smith and Miss Jackson – gross rent £105.00 per week Deduct utilities £ 15.63 per week Net rent £ 89.37 per week[8]Unlicensed period 6th September to 18th November -10 weeks £893.70 4 days 51.07 £944.77 x 2/3rds £629.85[9]Miss Whiteman gross rent £115.00 per week Deduct utilities £ 15.63 per week Net rent £ 99.37 per week[10]Unlicensed period 6th September to 18th November - 10 weeks £993.70 4 days £ 56.78 £1050.48 X 2/3rds £ 700.32[11]31 The Applicants should also recover from the Respondents their Application fees of £100.00 each in respect of this application.