The application
14.In October 2020 the appellants applied to the FTT for a rent repayment order. Their application was based on alleged offences contrary to section 72(1), 2004 Act and section 1(3A), Protection from Eviction Act 1977. It was prepared by Flat Justice and was supported by a schedule identifying the dates of occupation of each of the five rooms in the building and the names of the occupiers. The schedule said nothing about what later came to be referred as the “status” of the occupiers, by which was meant whether they occupied the accommodation as their only or main residence so as to satisfy the condition in section 254(4)(c), 2004 Act which forms part of the standard test of an HMO.15.The five appellants later filed witness statements in March 2021. The statements were very similar and give the impression of being based on a pro-forma draft addressing, each in a single sentence, the conditions required to demonstrate that the property was an HMO. Minimal additional information was inserted to provide details of the witness’s name, period of occupation, rent and other details. Only when the statement addressed matters of conduct did any detail begin to emerge.16.The standard form of the witness statements can be illustrated by referring to the document signed by Nicolle Ducasse. I quote the relevant part in full, omitting only some brief allegations about an absence of safety precautions randomly inserted after paragraph 7.2:“4.The property was my main residence during my occupancy. 5.I shared the property with up to 5 other occupants. We shared 3 bathroom(s) and 1 kitchen(s).6.The occupants were from more than one family or household. In fact we were made up of 5 separate households.7.1 I was assigned a room in the property: top floor en-suite bedroom (own bathroom for sole use).7.2 I intended to stay at the property for at least 6 months. …8.The property was occupied as per the Occupancy Table shown in the applicant bundle with this statement.”17.The statement went on to provide, in rather more personal terms, an account of alleged acts of harassment. It concluded with a statement of truth.18.The witness statements prepared by the other appellants were in more or less identical terms, except for the allegations of harassment which differed slightly. 19.The deficiencies of this form of evidence are not difficult to see. By limiting the information provided to a bald confirmation of the statutory qualifying conditions the witness leaves many questions unanswered. What did she mean by the statement “the property was my main residence”? Did she have other residences? If so, where were they and how much time did she spend there? What was it that made this property her main residence? Similarly, the statement that “the property was occupied as per the Occupancy Table shown in the applicant bundle with this statement” begs the question whether the witness had seen that bundle or the table said to have been included in it and how she was able to confirm its contents. How would she know who lived there before or after her period of occupation?20.More significantly, none of the appellants said anything about Kate Tseng whose name appeared in the occupation schedule but who did not provide a witness statement and was not mentioned by any of them. 21.In May 2021 the respondents filed a statement of case prepared by counsel. It quoted article 3 of the 2018 HMO Order, including the reference to the standard test, and section 254(2) of the 2004 Act, highlighting in bold text the requirement that “the living accommodation was occupied by those persons as their only or main residence.” The respondents specifically put the appellants to proof of that condition and pointed out that there was no evidence from Ms Tseng about whether the property was her only or principle home. Nor was there any evidence that Ali had occupied the property as his only or principal home during the period of 8 days when he was said to have be there. The respondents’ case was therefore that the appellants had not established that the property was an HMO.22.The hearing had originally been due to take place before the FTT in May 2021 but it was postponed and eventually took place on 27 September. The appellants therefore had time to consider the points made in the respondents’ statement of case and to provide additional evidence to meet them, yet no further evidence was filed between May and September.