[2024] UKUT 348 (LC)

The difficulty with the FTT’s decision is that although it recorded some of what the respondent said it failed to engage with the detail of his evidence. Indeed, on one point it misunderstood his evidence; the FTT at its paragraph 7, as we saw above, said that the applicant’s evidence was that he “did not submit the application”, but that is not what he said.

The appellant’s evidence was lengthy; 11 pages of his witness statement before the FTT detail the steps he took to apply for licences for the property. His second paragraph summarised his position:

“I oppose the Rent Repayment Order (RRO) on the basis that I have made the appropriate applications in April-July 2021 on the council’s portal, but due to miscommunication or misunderstanding made by the council, the applications that were on the portal that were supposed to be reviewed as I sought assistance from them, were not processed. Unfortunately, as a result of IT issues, there is no trace of these applications.”

So his position was that he applied for a licence for this property and others during the period April to July 2021, before the periods for which the respondents sought rent repayment orders, and therefore had the defence provided by section 72(4) of the 2004 Act. His witness statement explained how he began the process of applying for an HMO licence for the property in April 2021, creating an online profile for the property and then pausing the process while some work was done. At some point in late June/early July 2021 he spoke to an officer in the local housing authority’s environmental health department and explained that he wanted to go through the application with an officer before paying the fee, because he was uncertain about some of the requirements; he did not want to pay, and then have the application rejected, and lose the fee. Paragraph 21 of his witness statement went through that conversation in detail:

“I told the officer that remediation works were almost complete and that I was ready to get my applications reviewed and paid for. It was at this point that the officer told me that there was a 9-12 months backlog on Additional HMO applications. The officer added that application can only be reviewed when an officer has been assigned to a case. I told the officer that I wanted my pending applications to be treated as valid applications and asked to be placed on the queue to be reviewed. The officer took down the address of either 12 Arden Crescent or 10 Grosvenor Wharf Road along with my email address and told me that she would pass the details to the Additional HMO team whom would get in touch with me. She commented that the team is likely to prioritise the paid applications and she did not know when I would be contacted by the team. I asked the officer how my applications would be treated as in terms of compliance with the Additional Licensing scheme whilst waiting for applications to be reviewed. The officer told me that the council would backdate the applications to the date they receive the information. Hence, my understanding was that I just had to wait for the council to get in touch when they are ready for inspection. The officer reminded me to keep and ensure that all the compliance and insurance certificates were valid and in-force continuously, failing which could result in rejection. I confirmed my understanding and ended the call. Up until this point, I took down careful notes and have ensured that I renewed all the compliance certificates on the anniversary dates. Although the council staff sounded hectic, I had no reason to doubt them because I have been using the phone helpline to seek advice from the council since 2011. However, at no point during this call was I informed that the Additional Licensing team would not review unpaid applications at all!”

According to that paragraph, what he thought he was doing as a result of what the officer told him was making an application and postponing the payment of the fee until it had been reviewed. The emphasis is added to highlight the information given by the officer, according to the appellant, which would appear to be what made him think that.

The appellant’s witness statement went on to explain that from October 2021 until December 2022 he and his family had some serious health problems, and it was not until January 2023 that he chased up the HMO licence applications for 12 Arden Crescent and other properties, and was told they had been deleted.

The appellant says that the local housing authority was not entitled to delete his data and that the deletion was a data loss that should have been reported to the Office of the Information Commissioner. In his grounds of appeal he has reproduced the information now given on the local application website, which warns applicants that unpaid-for application forms will automatically be deleted after 90 days, and which he says was not displayed on the website when he accessed it.

Pausing there, the FTT’s summary of the applicant’s evidence at its paragraph 7, with the inverted commas around the word “disappeared”, seems to express some scepticism about his evidence that his application was deleted. But no express finding of fact was made about what the applicant said had happened to his application forms; if the FTT did not believe that the material he filed had been deleted it needed to explain why.

The FTT found that the appellant did not make an application for an HMO licence, in other words that the steps he took in June or July 2021 did not amount to an application for a licence. It did not explain that finding, which may or may not be correct but needs explanation because it is at odds with what the local housing authority’s officer told the appellant – if that evidence is true, and the FTT made no finding about the truth of that evidence.

Furthermore, the FTT rejected the appellant’s evidence that he believed he had made an application, but it did not say why – again, the FTT needed to consider and make a finding of fact about what he said the officer told him. If it did not believe his account of that conversation, it needed to say why. If it did believe him (and there is nothing inherently implausible about the appellant’s account), then the FTT should have given consideration to whether he had a defence of reasonable excuse or, if not, whether there was nevertheless mitigation that could have an effect upon the amount ordered to be repaid.

As the Tribunal put it in the grant of permission to appeal, the FTT failed to consider the substance of the applicant’s submissions about the defence of reasonable excuse and failed to make findings of fact about his conversation with the officer of the London Borough of Tower Hamlets. The FTT failed to take into account relevant evidence and failed to explain its conclusion; its decision is set aside.