[2023] UKUT 306 (LC)

In the grounds of appeal Mr Penny argued that “Schedule 14 is to be considered with reference to each individual person rather than in relation to the particular building.” He sought support from the policy of the Act, and said:

“The application of Sch. 14 must also be considered in the light of the purpose to which the 2004 Act is put within the context of the Housing and Planning Act 2016; the question of whether a Rent Repayment Order is available for a licensing offence is a question which can only be answered by an analysis of whether the licensing offence has been committed by a particular person.”

The premise of that argument is of course that more than one person can be “the person in control”. Mr Penny argued that CCG was not in fact the person in control; but if it was, then Schedule 14 meant that the building was not an HMO so far as CCG was concerned but had no effect so far as the respondent was concerned.

In response the respondent argued that Schedule 14 means exactly what it says. If the person in control is one of the bodies listed in paragraph 2(1) of Schedule 14 then the building is not an HMO for any purposes of the Act (other than Part 1).

In my judgment the respondent’s argument is straightforward and manifestly correct, in contrast to the appellants’ construction of Schedule 14 which is strained and runs counter to the plain words of the statute. If (and I stress the “if” for reasons that will appear) CCG satisfied the definition of “person having control” in section 263(1) then the building was not an HMO for any purpose under the 2004 (apart from Part 1) and therefore was not an HMO so far as any other person was concerned either.