[2025] UKUT 161 (LC)

I can take this ground of appeal quite shortly. At paragraph 17 above I have identified the facts on which the appellant relied in his statement of case and his witness statement as providing him with a defence to the suggested offence. In short, his case was that he reasonably believed the property was already licensed. It was no part of his pleaded case that Kingsman had failed to tell him to get a license when they were managing the property. I do not accept Mr Eliot’s submission on behalf of the respondents that the FTT’s description of the defence was poorly phrased but not substantially inaccurate. It is clear that the FTT did not properly consider the defence on which the appellant relied. Had it done so it would have been necessary for it to make findings of fact about what had appeared on the Council’s website (and it was clear from the Council’s own correspondence that there was something relevant on its website, otherwise there would have been no reason to say on 29 November that it “has now been closed”. It would also have been necessary for the FTT to deal with the appellant’s evidence, which it did not refer to, about a notice which appeared to the appellant to be an HMO licence hanging on the wall inside the property.

In Marigold v Wells [2023] UKUT 33 (LC), at [48], borrowing from the approach taken by tax tribunals, I suggested that a property tribunal considering a defence of reasonable excuse might usefully ask itself three questions, which were, in summary: what facts were relied on as amounting to a reasonable excuse; which of those facts were proven; and whether, viewed objectively, the proven facts provided an objectively reasonable excuse for the conduct of the appellant, taking into account their experience and other relevant characteristics. It is for each panel to make of that suggestion what it will, but the first step at least is essential, and in this case it was missing.

I am satisfied that, if proven, the facts relied on by the appellant were capable of being accepted as a reasonable excuse. As the necessary findings of fact were not made, the FTT’s decision must be set aside, and the appeal remitted to a differently constituted panel for redetermination.