Sonja Mitterhuber v Christina Lopez Hernandez & Anor [2025] UKUT 194 (LC)

[2025] UKUT 194 (LC)Case No LC-2024-805
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)
Ref: LON/00AK/HMF/2023/0004
Venue Royal Courts of Justice, Strand,
Between
SONJA MITTERHUBERAppellantCHRISTINA LOPEZ HERNANDEZRespondentALEXANDRA BALOTARespondent
19 June 2025
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
HOUSING – RENT REPAYMENT ORDER –house in multiple occupation - evidence needed for a finding that a person has occupied a dwelling as their only or main residence – no evidence presented to the FTT on the point – order set aside
16 Dawlish Road,Tottenham,London, N17 9HPUpper Tribunal Judge Elizabeth CookeDetermination by written representationsThe appellant was not legally representedMr Clark Barrett of Represent Law Ltd for respondents© CROWN COPYRIGHT 2025The following case is referred to in this decision:Opara v Olusemi[2020] UKUT 96 (LC)Date 2025-06-19

Introduction

[1]This is an appeal from a rent repayment order made by the First-tier Tribunal. It has been decided under the Tribunal’s written representations procedure. The respondents have been represented by Mr Clark Barrett of Represent Law Ltd, and the appellant presented her own case.

The law: rent repayment orders

[2]Section 40 of the Housing and Planning Act 2016 enables the FTT to make a rent repayment order in favour of a tenant if the FTT is satisfied to the criminal standard of roof (beyond reasonable doubt) that the landlord has committed one of the offences listed in that section. They include the offence created by section 72(1) of being a person in control of or managing a house in multiple occupation (an “HMO”) that is required to be licensed and is not licensed.[3]Section 254 of the Housing Act 2004 (“the 2004 Act”) defines HMOs using a number of “tests”. The test relevant to this appeal is the “standard test” in subsection (2) which states that a building or part of a building is an HMO 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); (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.”
[4]Section 259 of the 2004 Act, referred to in section 254(2)(c) above, provides that persons occupying a property while they are full-time students, or occupying it as a refuge from violence or abuse, are to be regarded as having their only or main residence there.[5]Not all HMOs satisfying the test set out above need to be licensed; the effect of section 61 of the 2004 Act is that HMOs prescribed by regulation need a licence, as do those in an area designated under section 56 as subject to additional licensing. The regulations made under section 61 make a licence compulsory for an HMO occupied by five or more persons in two or more separate households. However, the property relevant to this appeal is in an area designated by the local housing authority under section 56, with the effect that at all material times it required a licence if it was occupied by three or more persons in two or more separate households.[6]Section 72(1) of the 2004 Act provides it is an offence to be a person in control of or managing an HMO which is required to be licensed and is not so licensed.[7]Accordingly, a tenant who applies for a rent repayment order has to prove, to the criminal standard, that the relevant property was an HMO, that it required a licence at the relevant time, that it did not have a licence and that the landlord was the person managing or in control of it. Often all or most of those requirements are uncontroversial. The issue in this appeal relates to the first of those requirements; the appellant landlord says that the FTT should not have found that the property was an HMO because there was no evidence that one of the occupiers was living there as her only or main residence (section 254(2)(c) above).

The factual background

[8]321 Haslebury Road, London N9 is a three-bedroom flat with a living-room used as an extra bedroom. The first respondent Miss Lopez Hernandez lived there from 28 February 2022 until 31 July 2022, and the second respondent Miss Balota lived there from 26 March 2022 to 26 December 2022. The appellant was their landlord. After leaving the property they applied together for rent repayment orders. Miss Lopez Hernandez sought the sum of £3,083 and Miss Balota sought £5,600.[9]Each made a witness statement. Miss Lopez Hernandez said she lived at the property with two other tenants, Miss Balota and “Anami”, who each had their own room. Miss Balota said that “there were always three tenants living at the property (me and 2 other people).” She added that the others were initially Miss Lopez Hernandez and Anami, and that when Miss Lopez Hernandez moved out in July there was first “Yasmin” and later “Hande”.[10]At the hearing before the FTT the appellant relied principally on her contention that the two applicants had been licensees not tenants; but because of the way that tenants are defined in the 2004 Act that did not assist her. She also argued that there were no occupiers other than the applicants (because if there were only two occupiers the property would still be an HMO but would not have required a licence). The FTT believed the evidence of the respondents and found that for most of the period of the claim there were three people in occupation of the property. It did not believe the appellant’s evidence and said:
“Her assertion that Anami was never a permanent resident and was just a friend of her daughter was not at all convincing, nor was her assertion that Ms Balota was lying wgen stating that Yasmin and Hande were fellow occupiers.”
[11]The FTT therefore found that the house was an HMO that required a licence and did not have one, and it found that the appellant was managing or in control of it. It rejected her defence of reasonable excuse. It went on to make a rent repayment order, but only ordered repayment of 20% of the sums claimed because of a number of mitigating factors.

The appeal

[12]Permission to appeal was granted by this Tribunal on the ground that there was insufficient evidence for the First-tier Tribunal to have found that Anami, now identified by the appellant as Anami Chowdhury, occupied the property as her sole or main residence. The appellant has also asked for permission to rely on fresh evidence; I refuse permission, because the witness statement she wishes to rely on could have been produced to the FTT and there is no proper explanation as to why it was not.[13]The difficulty with the FTT’s decision is that there is no finding that Anami, or indeed Yasmin or Hande, occupied the property as their only or main residence. The finding is simply that they occupied the property.[14]It is perhaps arguable that the FTT’s rejection of the appellant’s evidence that Anami “was never a permanent resident” might amount to a finding that she occupied the property as her only or main residence. If that was the FTT’s intention, then the further difficulty is that there appears to have been no evidence whatsoever to that effect. There is no such evidence in either respondent’s witness statement. If any such evidence was given at the hearing the FTT has not recorded it. That is perhaps unsurprising; the two respondents did not know the full names of any of their fellow occupiers and indeed seem to have known nothing about them. As the FTT said itself, the respondents as applicants “should have tried harder to obtain corroborative evidence from the other occupiers.” There is no indication in the FTT’s decision or in the respondents’ evidence that they tried at all.[15]Written representations made for the respondents do not address the absence of evidence. They observe, correctly, that the Tribunal will rarely interfere with a finding of fact made by the FTT, because the FTT saw and heard the witnesses and is best placed to assess the credibility of their evidence. However, where a finding of fact is made that cannot have been justified by the evidence the Tribunal will set it aside. And where the FTT has omitted to find a fact that is crucial to what it is deciding, again the decision can be set aside.[16]It is not claimed in the respondents’ written representations that anything relevant to the nature of Anami’s occupation, or Yasmin’s or Hande’s, was said at the hearing itself. All that is said about evidence given at the hearing is:
“Both Miss Lopez and Miss Balota confirm that the property, which has 3 bedrooms and was occupied by 3 tenants during the period. Also included in evidence was an email sent to the landlord from Alexandra Balota, Miss Henandez and Anami Chowdhury confirming their status as tenants.”
[17]It is well-established that the FTT may have to take a pragmatic approach to the issue of whether an occupier lives at a property as their only or main residence. Often this is not addressed directly in the evidence, especially where the occupier in question is not the applicant and has not given evidence. In Opara v Olusemi [2020] UKUT 96 (LC) the Tribunal said this:
“31. … In the absence of co-operation from other residents, cast-iron certainty is not going to be achievable on this point because of the difficulty of proving a negative; and of course cast-iron certainty is not required, only proof “beyond reasonable doubt”
. How is the tenant to show that another occupant has no other home, or no other main home? This element of the offence must to some extent be a matter of inference from the circumstances.”[18]But there do have to be some circumstances from which an inference can be made. In Opara the Tribunal took the view that there was strong evidence that the property was occupied as their home by the two occupiers whose occupation was relied upon by the applicant for a rent repayment order. They were known as Eddie and Mr Neville. The Tribunal explained:
“28. As to Eddie and Mr Neville, the FTT made findings of fact - from which there is no appeal - that they rented rooms in the property. The text messages paint a picture of the nature of that occupation. The property seems to have been a chaotic and sometimes dangerous place where the residents had stormy relationships with each other and with the respondent. But the picture is clearly of a place where people lived as their home, and not as guests or as people who did not actually live there. 29. The [landlord] herself in her second witness statement refers to the residents as making arrangements in “their home”
. Her evidence indicates that Eddie lived in the property for some years with Mr Stan. … 30. The text messages indicate that Mr Neville was a difficult and anti-social resident, who prevented other from using the bathroom and would hide in his room for long periods. It is significant that he received Housing Benefit.”[19]There was plenty there to justify a finding that Eddie and Mr Neville met the requirement of section 254(2)(c) of the 2004 Act. Here there is nothing, beyond the fact that Anami and two others occupied the property, apparently for short periods. Either the FTT overlooked the need to be satisfied that Anami, and any other third occupier, was living at the property as their only or main residence, or they made that finding but without any evidential basis.

Conclusion

[20]The appeal succeeds and the FTT’s decision is set aside. There is no basis on which the matter can be remitted to the FTT; the respondents have not suggested that they have relevant evidence about their fellow occupiers that they were unable to produce at first instance. The Tribunal substitutes its own decision that the application for a rent repayment order is refused. Upper Tribunal Judge Elizabeth Cooke 19 June 2025 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.