[2025] UKUT 175 (LC)

The FTT took the view that the property was an HMO, and therefore the offence was being committed, from 22 July 2022 to 21 January 2023. That was because the relevant definition of an HMO under the “standard test” in section 254(2) of the Housing Act 2004 requires the property to be occupied; section 254(2) provides that a building or part of it meets the standard test if it:

“(a)

consists of one or more units of living accommodation not consisting of a self-contained flat or flats;

(b)

the living accommodation is occupied by persons who do not form a single household …;

(c)

the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it;

(d)

their occupation of the living accommodation constitutes the only use of that accommodation;

(e)

rents are payable or other consideration is to be provided in respect of at least one of those persons’ occupation of the living accommodation; and

(f)

two or more of the households who occupy the living accommodation share one or more basic amenities or the living accommodation is lacking in one or more basic amenities.”

The emphasis is added; it can be seen from the repeated references to occupation that it is crucial to the definition.

Accordingly, the only payment of rent made by the tenants, whilst made “in respect of” the period when the offence was being committed, was not made during that period. The FTT took the view that it could therefore not order repayment of any rent, on the basis that the reasoning in Kowalek applied as much to payments made before the relevant period as to payments made afterwards.