[2024] UKUT 348 (LC)

12 Arden Crescent is a four-bedroomed property in which the respondents rented rooms with shared facilities, having entered into individual occupation agreements with the appellant on different dates during 2022. While they were in occupation the property was a house in multiple occupation (“HMO”) as defined by the Housing Act 2004. It did not require an HMO licence under the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018. However, it fell within the additional licensing scheme operated by the London Borough of Tower Hamlets from 1 April 2019; that scheme covered properties occupied by:

“Three or more people living as 2 or more households They share facilities such as a bathroom or kitchen At least one of the tenants pays rent.

The property therefore required a licence throughout 2022 and 2023 while the respondents lived there. It is an offence under section 72(1) of the Housing Act 2004 to be in control of or manage an HMO that is required to be licensed and is not; section 72(4) and (5) makes available a number of defences to that offence, of which the relevant ones are as follows:

“(4)

In proceedings against a person for an offence under subsection (1) it is a defence that, at the material time–…

(b)

an application for a licence had been duly made in respect of the house under section 63…

(5)

In proceedings against a person for an offence under subsection (1), (2) or (3) it is a defence that he had a reasonable excuse–

(a)

for having control of or managing the house in the circumstances mentioned in subsection (1)…”

The offence under section 72(1) is one of those listed in section 40 of the Housing and Planning Act 2016, in respect of which the FTT may make a rent repayment order. The respondents applied to the FTT for such an order, each seeking repayment of the rent she had paid in respect of a period ending on 13 January 2023: