[2025] UKUT 161 (LC)

Part 2 of the Housing Act 2004 provides for the licensing of houses in multiple occupation (HMOs). By section 72(1) it is an offence to manage or to be in control of an HMO that requires a licence and is not licensed. By section 72(4), it is a defence that, at the material time, an application for a licence had been duly made in respect of the house and had not yet been refused or withdrawn (or, if it had been refused, was still the subject or potentially the subject of an appeal). By section 72(5), it is also a defence that the person in question had a reasonable excuse for having control of or managing the house in those circumstances.

Chapter 4 of Part 2 of the Housing and Planning Act 2016 confers power on the FTT to make a rent repayment order where a landlord has committed an offence to which the Chapter applies. The offence under section 72(1), 2004 Act is one of those listed in section 40 of the 2016 Act as an offence to which the Chapter applies.

Section 41(2)(b) of the 2016 Act provides that a tenant may only apply for a rent repayment order if:

“…(b) the offence was committed in the period of 12 months ending with the day on which the application is made.”

In Moh v Rimal Properties Ltd [2024] UKUT 324 (LC), which was decided after the decision of the FTT in this case, the Tribunal (Judge Cooke) determined two issues of importance in this appeal. The Tribunal decided that in section 41(2)(b), 2016 Act:

In reaching the first of those conclusions the Tribunal decided that on the proper construction of section 41(2)(b), the corresponding date rule does not apply. The corresponding date rule is the general rule of interpretation that where a contract or a statute requires that something be done within a certain number of months, the period ends on the day of the appropriate subsequent month that bears the same number as the day of the earlier month on which the period begins. In Moh, at [38], Judge Cooke explained why the corresponding date rule does not apply to section 41(2)(b):

“A period of 12 months ending on a particular date is not the same – as a matter of ordinary language – as the period of 12 months before that date. The language implies that the start and end date are each within the period. It therefore starts not on 4 May 2022, whose beginning is more than 12 months away from any point during 4 May 2023, but at the first moment of 5 May 2022. I agree that what was said in Lester v Garland has been treated as a general rule and that Parliament is to be taken to be aware of the corresponding date rule derived from Lester v Garland and stated in Dodds v Walker; but had Parliament wanted that rule to apply it would have used the language with which that rule is associated, by specifying a period “after” or “before” or “within so many months of” another event.”

In Jevan v Athansiadi [2024] UKUT 358, which was decided after the decision of the FTT in this case, I decided that an application had been made to the FTT on the day on which it was filed on-line by being sent in an email. I followed a dictum of Eveleigh LJ in Aly v Aly [1984] 1 WLR 936that making an application is a unilateral act which does not depend on steps taken by someone else. Nor did it depend on the requisite fee being paid at the same time as the application was sent.