The appeal
26.The appellants sought and were granted permission to appeal on a single ground, namely, that the FTT had erred in finding that the offence under section 72(1) had not been proven beyond reasonable doubt. This was initially put on the basis that the FTT had concluded that the occupancy level of the property had not been proven but when he opened the appeal Mr Penny sought permission to amended his ground of appeal to focus on the real issue which was whether the individuals who occupied the property were doing so as their only or main residence. Mr Colville objected to that amendment but I permitted it as it had been apparent since their original statement of case that the respondents’ case was based on the absence of evidence about the quality of occupation and not the period of occupation.27.Mr Penny submitted that the FTT had erred in its assessment of the effect of the evidence. He referred to two decisions of this Tribunal (both decisions of Judge Cooke), Opara v Olasemo [2020] UKUT 96 (LC) and Mortimer v Calcagno [2020] UKUT 122 (LC). Those establish demonstrate that it is not necessary to have first-hand evidence from all of the occupants of a house to prove its status as an HMO beyond reasonable doubt. Direct evidence from some of the occupants, perhaps supported by collaborating documents, may be sufficient to prove beyond reasonable doubt that the necessary conditions were satisfied. Both cases also demonstrate that it is open to the FTT to draw inferences from facts which it finds to be proven, provided it is satisfied to the criminal standard of proof.28.In Opara the issue was whether the FTT ought to have been satisfied to the criminal standard that the occupants lived in the property as their only or main residence. The two critical occupants of the house were not called to give evidence but, at [31], the Tribunal said this:“In the absence of cooperation 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 of 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.”The Tribunal then made some observations about the property and the evidence in that case:“This is low-value housing – cheap rooms, to be blunt. The tenants were not people who were likely to have had a second home. Certainly a recipient of housing benefit should not have one.”The evidence established that one of the two occupants whose status was in issue had lived in the property for a number of years and was responsible for paying utility charges. It seemed to have been accepted that his home was at the property. The other occupant was in receipt of housing benefit, a fact which the Tribunal regarded as “significant”. The Tribunal concluded that there was strong evidence that both individuals had their home at the property and that it was likely to be their only residence, and that the FTT’s conclusion that the offence had not been proven was unsustainable.29.Mr Penny submitted that the FTT should have inferred from the information it had been provided with that Ms Tseng occupied this property as her only or main residence. The question ought to have been whether, while she was in occupation, she occupied the property as her only or main residence. He identified three facts from which he suggested that inference should have been drawn. First, that Ms Tseng had paid a rent of £950 a month. That was a significant sum, and it was unlikely, he suggested, that someone would have paid it in rent except for their only or main residence. Secondly, that she had occupied the property for three months from 22 December until 22 March, which was a sufficiently long period to indicate that the property was likely to have been her only or main residence. Thirdly, that she had brought her belongings to the property. Those three pieces of evidence were sufficient, Mr Penny submitted, to support the inference that Ms Tseng had occupied the property as her only or main residence for three months. 30.Whether a person occupies property as a residence is a question of fact. Guidance on the quality of occupation which is required and factors which will indicate that the requirement is satisfied can be obtained from decisions of other courts and tribunals, but the question remains a question of fact in every case. It is a question which arises in a number of different statutory contexts including, for example, in cases concerning liability for property taxes. 31.Bradford Metropolitan City Council v Anderton [1991] RA 45 concerned the liability of a merchant seamen to pay the community charge during periods when he lived with his wife on shore. The question was whether the family home was “his sole or main residence” and Hutchison J summarised a number of authorities which established that a persons sole or main residence is “where his home is, where he has his settled and usual abode.”32.In Williams v Horsham District Council [2004] EWCA Civ 39, which concerned the liability of a school caretaker to pay council tax for a house which he did not live in because his employment required him to live at the school, the Court of Appeal said, of the expression “sole or main residence” in section 6 of the Local Government Finance Act 1998, that it:“… refers to premises in which the taxpayer actually resides. The qualification “sole or main” addresses the fact that a person may reside in more than one place. We think that it is probably impossible to produce a definition of “main residence” that will provide the appropriate test in all circumstances. Usually, however, a person’s main residents will be the dwelling that a reasonable onlooker, with knowledge of the material facts, would regard as that person’s home at the material time. That test may not always be an easy one to apply.”33.William v Horsham was a second appeal from a local valuation tribunal; the Judge on the first appeal had referred to a number of matters which the tribunal had correctly identified as relevant to the issue whether the caretaker’s property was his only or main residence. Those factors included: his intention to return to live at the property; the period of his absence and reasons for it; his legal interest in the property; the security of tenure he enjoyed there; the whereabouts of personal belongings; the place where his spouse and children resided; and his place of registration for dental, medical and electoral purposes.34.The difficulty for the appellants in this case is that there was not a single piece of evidence directly addressing the quality of Ms Tseng’s occupation of the property or the facts relevant to it. Nothing was known about her other than that she had paid a rent for a room for a period of three months and had moved belongings into the property. Nothing was known about her personal circumstances, her age, her nationality, whether she had a family, whether she was employed, whether she had an income or received benefits, including housing benefit, how long she spent at the property during her period of residence, whether she went away at the weekends or for other periods, whether she spent the Christmas and New Year holiday period at the property, where she went when she left, and why she left. Evidence on some or all of those matters would have allowed the FTT to consider whether it was satisfied beyond reasonable doubt that she occupied the property as her only or main residence, that it was her home, in other words, and not simply a convenient temporary place to live while she spent time in London. The facts known to the FTT were not inconsistent with a number of different possible life stories. Ms Tseng might have been a student from abroad who had come to this country for a short period of study, or a person working in London but living somewhere else in the country who returned to her permanent home at the weekends or at other times when she was not working. She may have had a home elsewhere which an informed observer could have concluded was her main residence. The FTT might have felt able to exclude those possibilities if it had been told anything at all about her, but it was not.35.This appeal is not an appeal on a point of law only. A right of appeal is available in a rent repayment case whenever a person is aggrieved by the decision of the FTT (section 53(1), 2016 Act). Nevertheless, this Tribunal’s approach to FTT decisions on issues of fact is clear. The Tribunal will only set aside a decision on an issue of fact where it was not supported by any evidence or where the decision was one which no reasonable tribunal could have reached. Mr Penny did not put his submission as high as to say that the only conclusion which the FTT could properly have arrived at was that Ms Tseng occupied the property as her only or main residence, but in my judgment any conclusion short of that extreme position would be insufficient to justify this Tribunal in interfering with the FTT’s decision. 36.No criticism can be made of the FTT’s statement that “it has no evidence as to the relevant status” of Ms Tseng. It was plainly entitled to come to that conclusion, and it was not obliged to resort to unreliable inferences. It was not saying that there was no evidence at all about her and it cannot be assumed that it overlooked that she had occupied the property between 22 December and 22 March and had paid rent for it. But it was entitled to conclude that there was no evidence bearing on the critical question of whether the property was her only or main residence. The opportunity to draw inferences favourable to the appellants was explained to the FTT in Mr Penny’s written closing submissions but, as was submitted on behalf of the respondents, the known facts were equally consistent with an inference that she had moved out of the property to return to her main home on 22 March 2020, the day before the commencement of the national coronavirus lockdown.37.This case is an example of the dangers of adopting a formulaic, tick box approach to the evidence necessary to prove the elements of a criminal offence to the required criminal standard. The pro-forma witness statements relied on by the appellants omitted to mention one of the critical conditions. The documents are so concise and impersonal that it is impossible to find in them any material from which to begin to form an impression of the applicants and their house mates. Those of the appellants who attended the hearing before the FTT and who gave evidence were able to make good the shortcomings of their written statements, but nobody seems to have noticed the need for evidence concerning the quality of the occupation of those who were not giving evidence, but proof of whose status was essential. One of the necessary elements of the offence was simply not addressed. The appellants would have been better advised to state the facts relevant to their occupation of the property in their own words and to explain what they knew of the others who were not going to be called to give evidence. Had they done so the outcome of the application might have been very different. As it is, I dismiss their appeal.Martin Rodger QC, Deputy Chamber President 25 August 2022