[2024] UKUT 313 (LC)

The appellant holds a long lease, granted to her in 2003, of 3 Fox Close, London E16; it is a two-storey, three-bedroom maisonette. She used to live there, but in 2017 she moved out and let the rooms on assured shorthold tenancies, thereby becoming the landlord of an HMO that meets the standard test in section 254. 3 Fox Close has never been occupied by five or more persons in more than one household and so has never had to be licensed pursuant to the 2018 regulations.

The respondent, Mr Onuoha, has lived in the property since 2017 on an assured shorthold tenancy.

On 1 January 2018 the local housing authority designated an area, within which is Fox Close, as an area of additional licensing. The designation said that it:

“… applies to all Houses in Multiple Occupation (“HMOs”) that are privately rented under a tenancy or licence unless it is an HMO that is subject to mandatory licensing under section 55(2) of the Act or subject to any statutory exemption.”

The effect of the designation is that within the designated area, HMOs occupied by five or more persons in two or more households were subject to mandatory licensing under section 55(2)(a) and the regulations, and HMOs occupied by three or four persons in two or more households were subject to the additional licensing requirement (sections 55(2)(b) and 56) (but not those occupied by only two people even if they formed two households, because of paragraph 7 of Schedule 14 to the 2004 Act).

The effect of the designation would not be apparent to a landlord reading it without legal advice, but the local housing authority provided information about the effect of the additional licensing designation on its website; more about that later.

By the summer of 2020 the property was occupied by Mr Onuoha and his daughter (who was then about 14), and by two other tenants: Ms Sara Olumide and her son, and the appellant’s cousin Ms Ugochi Nwagwugwu. In August 2020 the appellant applied for an HMO licence. In December 2020, according to her witness statement in the FTT, she chased the local housing authority and was told that she was unlikely to get a licence because she did not have the requisite planning permission; accordingly she gave her tenants notice to quit. In March 2021 her application for an HMO licence was refused.

Ms Olumide and her son left the property, in June 2021 according to the appellant and according to the respondent in August 2022.

On 1 January 2023 the respondent applied to the FTT for a rent repayment order on the ground that the appellant had committed the offence under section 72(1) of the 2004 Act. He claimed 12 months’ rent for the period from April 2021 to April 2022; during that period he had paid £720 per month and so the maximum claimed was £8,640.