[2025] UKUT 151 (LC)

Section 40 of the Housing and Planning Act 2016 (“the 2016 Act”) provides that the FTT may make a rent repayment order against a landlord if it is satisfied, to the criminal standard of proof (beyond reasonable doubt), that the landlord has committed any of the offences listed in section 40(3). The list includes the offence created by section 72(1) of the Housing Act 2004 of managing or being in control of a house that requires to be licensed as a house in multiple occupation (an “HMO”) and is not so licensed. Section 254 of the 2004 Act provides a number of definitions of an HMO; the relevant one for the purposes of this appeal describes a house where rooms are let to tenants who share living facilities such as a kitchen and bathroom. Not all HMOs require a licence but in the present case it was not in dispute that in the area where the property was situated an HMO would require a licence if three or more persons were living there, it was their only or main residence, and they comprised at least two separate households; I assume that that was because the local housing authority had designated the area as being subject to additional licensing requirements under section 56 of the 2004 Act.

55 Roedale Road, Brighton is a house with four rooms furnished as bedrooms together with a shared kitchen and bathroom. Mr Szymczak rented a room there from 1 September 2021 to 30 September 2022. He applied to the FTT for a rent repayment order on 29 September 2023, claiming that the property was an unlicensed HMO throughout his tenancy. It was not agreed that the property was an HMO that required a licence.

Section 41 of the 2016 Act states:

Because the application was made on 29 September 2023, that period of 12 months began on 30 September 2022, which it was agreed was the last day of Mr Szymczak’s tenancy. The consequence of the two limbs of section 41(2) is that the application could not succeed unless he could prove that the offence was being committed on that specific date, whether or not it was committed at any other point during his tenancy and whether or not it was being committed at any later date. That made his task in the FTT quite difficult, but that was the consequence of his application having been made on the last possible date.

Mr Szymczak’s initial application to the FTT referred to there being other tenants but gave no names and no information about any of them. In response to the landlord’s statement of case, in which it was denied that at any point there were three or more occupiers whose only or main residence was the property, Mr Szymczak named a number of other tenants and gave the dates on which they had moved into and out of the property.

In the FTT’s decision it can be seen that the focus at the hearing in July 2024 was on whether it could be shown that the property was an HMO that required a licence on 30 September 2022, on the basis that if it was not then any other material was irrelevant. Mr Szymczak said that the other occupiers on that date, in addition to himself, were Menna Elwakeil, Daniela Coates and a man called Ciaran, but provided no evidence of this beyond his own assertion. A number of other tenants were also said to have been present during the time when Mr Szymczak lived at the property, including a Ms Scarlett Kennedy. The landlord’s position as set out by Mrs Entwhistle was that while Mr Szymczak and Ciaran were living at the property as their main residence on 30 September 2022, other occupiers were short-term residents who stayed there as students, or on business, and the property was run in part as an Airbnb. Mrs Entwhistle said that Scarlett Kennedy stayed at the property from September 2021 to June 2022, but that she was a student and the property was not her main residence. Mr Szymczak disagreed, and maintained that material produced by the landlord demonstrating the Airbnb bookings was falsified on the basis that it included inconsistent dates. Mrs Entwhistle said that Daniela Coates had lived at the property on a temporary basis while she was looking for a job as a teacher and has signed an assured shorthold tenancy agreement on 2 October 2022, after Mr Szymczak had left.

The FTT recorded that the landlord had produced an agreement showing that Menna Elwakeil’s occupation was part-time. It also noted that after the hearing the landlord provided occupancy agreements signed by a David Cadet and a David Ellisdon which indicated that they occupied the property for a few days a week, but it said that it could give little weight to that evidence since neither Mr Cadet nor Mr Ellisdon attended the hearing.

In conclusion the FTT said that on balance Mr Szymczak was a more credible witness and that it had doubts about some of Mrs Entwhistle’s evidence, but that Mr Szymczak’s case was based purely on his own assertions and denials. None of the other occupiers of the property had provided witness statements or attended the hearing and there was no documentary evidence about the basis of their occupation. Accordingly the FTT was not satisfied beyond reasonable doubt that the offence had been committed on 30 September 2022 (or at all), and the application failed.