UTLC LC-2023-250 - [2023] UKUT 289 (LC)

Mr and Mrs Date-Bah are the registered proprietors of 83 Coopers Lane, London E10. In September 2019 they granted an assured shorthold tenancy for a term of 24 months to Ms Radice and her then partner Mr Butler, commencing on 20 October 2019. The agreement allowed the tenant to give two months’ notice of termination of the agreement during the term at any time from 12 months after its commencement. Mr Butler in May 2021 and Ms Radice gave notice in June so that the tenancy came to an end on 19 August 2021.

The property is in the borough of Waltham Forest, and the Waltham Forest Borough Council operates a selective licensing scheme under Part 3 of the Housing Act 2004 so that while the property was let to tenants it was required to be licensed. Section 95(1) of the 2004 Act provides that it is an offence to be in control of or to manage a house that is required to be licensed under such a scheme and is not licensed. The property did have such a licence until 30 March 2020. Mr and Mrs Date-Bah applied for a new licence on 18 June 2021; once an application for a licence has been made there is no offence committed. They do not deny that they were managing the unlicensed house for that 15-month period and they have not suggested that they have a defence to the section 95(1) offence.

The section 95(1) offence is one of those listed in section 40 of the Housing and Planning Act 2016, so that a tenant who has been living in an unlicensed house can apply for a rent repayment order. Ms Radice did so in December 2021. She provided the FTT with Mr and Mrs Date-Bah’s email address as stated in the tenancy agreement and with their postal address. The FTT served documents on them by email.

On Thursday 9 June 2021 Mr and Mrs Date-Bah received by post notice of the hearing of the Ms Radice’s application on Monday 13 June 2021. Mrs Date-Bah telephoned the FTT and followed that up with emails explaining that this was the first they had heard of the proceedings because they no longer used the email address in the tenancy agreement, that they did not have time to prepare for the hearing, that Mrs Date-Bah had flu-like symptoms and had a doctor’s appointment on the Monday, and that they had no childcare that day (their daughter was then two years old). Mrs Date-Bah requested an adjournment.

The request and emails were referred to a judge; the FTT in paragraph 4 of its substantive decision gave the following reasons for its decision to refuse an adjournment on 9 June 2022:

“The Tribunal papers had been sent to the Respondents’ correct email address which was set out on the Applicant’s tenancy agreement for use in connection with the tenancy. None of the correspondence or documents sent by the Tribunal had bounced back, they had therefore reached a valid, working email address. It is the Respondents’ responsibility to check email addresses which they own and it had been their choice not to do so. Their failure to receive the papers timeously cannot be blamed on the Tribunal or on the electronic server. Further, the Respondent had not produced any evidence to support her claim to have a medical appointment on 13 June and the Judge directed that the Tribunal would have no objection to the Respondents’ child being present at the hearing.”

Mr and Mrs Date-Bah secured representation by Mr Mukulu of counsel and Mrs Date-Bah attended the video hearing. Mr Mukulu applied for an adjournment on the grounds that his clients had had insufficient notice of the hearing and had not been able to prepare for it or to file evidence. The panel retired to consider the application and recorded in its decision that “the application was refused on essentially the same grounds as before.”

The FTT went on to hear the application. It recorded in its decision that “Mr Mukulu was unable to present evidence on behalf of his own clients because they had failed to comply with any of the Tribunal’s Directions and no documents had been filed on their behalf.”

The FTT in its decision set out the evidence relating to the occupation of the property and the licensing requirement. It stated that Mr and Mrs Date-Bah admitted that they had not had a licence during the period in question; how that admission was made is not stated, beyond a reference to a page in the hearing bundle. It expressed itself satisfied to the criminal standard of proof that Mr and Mrs Date-Bah had committed the offence created by section 95(1) of the 2004 Act. It decided that it was appropriate to make a rent repayment order and went on to consider the quantum of the order. It stated that Mr and Mrs Date-Bah were professional landlords, but did not say why it reached that conclusion. It set out evidence from the tenant and concluded that the property was inadequately maintained so far as gas, electricity and hot water were concerned. It noted that it had no details of Mr ad Mrs Date-Bah’s financial circumstances. And it said at its paragraph 28:

“In these circumstances where a professional landlord has not produced any evidence to justify their defence or to validate expenditure on the property the Tribunal is reluctant to deduct any sums from the amounts claimed by the Applicant.”

It therefore made a rent repayment order in the full amount claimed by Ms Radice, £9,750.