[2024] UKUT 40 (LC)

North Lodge is one of three student housing blocks providing a total of 1,446 units of accommodation owned by the appellant in the London Borough of Haringey, where the Borough Council is the local housing authority.

On 12 February 2019 Haringey designated the whole of the Borough as an area of additional licensing under section 56. The designation came into force on 27 May 2019 and lasts for a period of 6 years. It applies to all HMOs which are not already subject to mandatory licensing under section 55(2)(a). Haringey could have provided for exemptions in favour of particular types of HMO, such as those managed by operators of purpose-built student accommodation who subscribe to an approved code of practice, but it did not do so.

Before a local housing authority may make a designation under section 56 it is required by section 56(3) to take reasonable steps to consult persons who are likely to be affected by the designation, and to consider any representation they may make. Haringey did not consult the appellant before making the 2019 designation because it was unaware that it was a large scale provider of housing in the Borough and likely to be affected by the proposed designation.

Once a designation has been made, the authority is required to publicise it by a notice published under section 59(2). Thereafter, for as long as the designation remains in force, it must make copies of the notice available to the public in accordance with prescribed requirements.

Publication requirements have been prescribed by regulation 9 of the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006. These require publication of the section 59(2) notice on the authority’s website within 7 days of a designation being made. The authority must also send a copy of the notice of designation to any person who responded to the consultation conducted under section 56, and to organisations which represent the interests of landlords, tenants, managing agents or letting agents within the designated area.

Material before the FTT suggested that Haringey complied with these statutory notification requirements. But it was unaware that the appellant was the manager of student housing in the Borough and it took no steps specifically to notify it of the additional licensing designation.

The appellant did not become aware of the designation when it came into force and it continued to manage the building after May 2019 without licencing the individual HMOs within it. Unless it had a reasonable excuse for that state of affairs, and for as long as it did not make an application, the appellant was thereby committing the offence, contrary to section 72(1), 2004 Act, of being a person having control of or managing an unlicensed HMO.

The circumstances in which the appellant became aware of the additional licensing designation are unclear. It first contacted Haringey on 1 July 2022, more than 3 years after the designation came into effect, asking for confirmation whether a licence was required for North Lodge and another building under the additional licensing scheme. Whether that inquiry was the result of the appellant’s own research or was precipitated by questions raised by or on behalf of its tenants is not clear. There was evidence before the FTT that from May 2022 Flat Justice had been contacting local housing authorities in London with purpose-built student accommodation in their areas to enquire whether they were licensed, but the date from which they first began to correspond with Haringey is not apparent.

Nevertheless, on 1 July 2022 the appellant’s London Universities Operations Manager, who was responsible for HMO licensing in London, notified Haringey that the appellant believed it had 221 licensable HMOs in its three blocks in the Borough. Haringey was uncertain about how to deal with an application covering so many HMOs and it was not until 13 September that it confirmed that an application would be needed in respect of each cluster flat containing three or more bedrooms. The total cost of licences for the three buildings would be £110,500.