[2023] UKUT 129 (LC)

Two of the appellants’ housing officers carried out an unannounced inspection of the property on the morning of 11 August 2021. They were able to inspect two rooms but were refused access by the occupant of a third and obtained no response from the remaining two rooms, including Room 5. The officers observed that a power cable ran under the door of Room 5 to an electric socket on the landing. A cupboard and a small fridge were also observed on the landing, and on leaving the house the officers noticed that the window to Room 5 was open. The officers pushed notices under the doors of the inaccessible rooms, informing the occupants that they required access later the same day.

That afternoon the officers received a telephone call from one of the occupants of the house, Mr Charles Sona, to whom they had spoken during their visit. He informed them that the person who lived in Room 5 had just been moved out of the property by Ms Morjaria.

The officers called again at the house after that telephone call and spoke to Mr Sona in person. He confirmed that Ms Morjaria had come to the house that afternoon and taken the tenant of Room 5 away, but he declined to make a formal statement. The officers noticed that the window of Room 5 was now closed and that the power cable could no longer be seen running under the door.

The officers returned to the house for a third time on 12 August 2021, but they were unable to gain access to Room 5. Mr Sona informed them that he had been asked by Ms Morjaria not to allow Council representatives into the property without arranging an appointment with her. He showed the officers a text message from her to that effect. A second tenant refused the officers access to his room and showed them a similar text message.

On 17 August 2021 the same officers made a fourth and final visit to the house accompanied on this occasion by Ms Morjaria’s father who told them that no one had been living in Room 5. On this occasion they were able to inspect Room 5, which they measured and found to be only 4.7m². On the floor of the room one of the officers found a receipt dated 6 August 2021 recording a payment in cash of £150 as rent for Room 5. The name on the receipt was ‘Wojech’.

The officers formed the view that Room 5 had been occupied and that there had therefore been five tenants living in the house in more than two households. On that basis the house was an HMO and should have been licensed.

On 6 September 2021 the officers informed Ms Morjaria by email that they intended to issue a prohibition order, preventing occupation of Room 5 as living accommodation and she responded that she had no objection to such an order. She asked for evidence that Room 5 had been occupied when the officers first visited the property.

On the same day, Ms Morjaria served notices on each of the tenants in the house, terminating their tenancies and seeking possession of their rooms. Mr Sona left the house on 15 September, and he subsequently agreed to provide a witness statement to the Council. In it he confirmed that the house had been occupied by five tenants and that the last tenant of Room 5 had been there for 4 months before he was moved out by Ms Morjaria on the day of the officers’ first visit.

Ms Morjaria was invited to attend an interview under caution, but her response was again to ask for sight of the evidence gathered by the Council. When she was then sent Mr Sona’s witness statement and a copy of the rent receipt for Room 5 she refused to be interviewed or to answer written questions.

On 31 January 2021 the Council served notice under paragraph 1 of Schedule 13A, Housing Act 2004 of its intention to impose a civil penalty of £29,817 on Ms Morjaria. The notice included a detailed summary of the grounds on which it was based. It identified 11 August 2021 as the date on which the offence had been committed but stated that the appointed officer considered that the property had been operating as a licensable HMO since 1 October 2018 (the date on which the 2018 Order came into effect).

Ms Morjaria responded to the notice of intent on 15 February 2022. She denied that the house had ever been occupied by more than four tenants and denied having moved the tenant of Room 5 out on 11 August. She supplied handwritten statements from two tenants, both of whom said that no one had been living in Room 5. One of those tenants, a Mr Mursa, said that he had used the room for storage. Ms Morjaria also supplied an email from a gas service engineer who claimed to have visited the house on 19 July 2021 when he had been unable to carry out checks in Room 5 because it was full of heavy furniture and boxed goods.