[2024] UKUT 17 (LC)

It is therefore strictly unnecessary to decide the second ground of appeal, which goes to the question whether or not the rest of the house was an HMO. But because of the point that it raises it will be helpful for me to provide a decision on it.

One of the requirements of section 254(2), within the “standard test” for whether a property is an HMO, is that the occupants must use the property as their only or main residence (section 254(b)). In many cases this is an easy inference to draw, even where no specific evidence is given on the point; Opara v Olasemo [2020] UKUT 96 (LC) was such a case. The present case was not. Mr Barker’s evidence in his witness statement was that while there were for much of the relevant period four people living in the rented rooms, some of them stayed for such a short period that it did not appear that this was their only or main residence. In some cases discussions he had with them indicated as much. The burden was on Ms Shokar to prove, to the criminal standard, that the people on whose occupancy she relied had used their rented room as their only or main residence. This was not an obvious and unchallenged inference from the evidence, and it was not open to the FTT to ignore the fact that it was an issue between the parties.

Nevertheless the FTT made no finding of fact on this issue, apparently taking the matter as read and making no mention of the point. The FTT again ignored a relevant consideration, namely the dispute about the status of the occupation of some of the occupiers. Ground 2 succeeds, and the FTT’s decision that the property was an HMO would have been set aside on this ground had it not already been set aside on ground 1. As it is, the decision has already been set aside and re-made and there is nothing further for the Tribunal to decide.