[2025] UKUT 194 (LC)

Permission to appeal was granted by this Tribunal on the ground that there was insufficient evidence for the First-tier Tribunal to have found that Anami, now identified by the appellant as Anami Chowdhury, occupied the property as her sole or main residence. The appellant has also asked for permission to rely on fresh evidence; I refuse permission, because the witness statement she wishes to rely on could have been produced to the FTT and there is no proper explanation as to why it was not.

The difficulty with the FTT’s decision is that there is no finding that Anami, or indeed Yasmin or Hande, occupied the property as their only or main residence. The finding is simply that they occupied the property.

It is perhaps arguable that the FTT’s rejection of the appellant’s evidence that Anami “was never a permanent resident” might amount to a finding that she occupied the property as her only or main residence. If that was the FTT’s intention, then the further difficulty is that there appears to have been no evidence whatsoever to that effect. There is no such evidence in either respondent’s witness statement. If any such evidence was given at the hearing the FTT has not recorded it. That is perhaps unsurprising; the two respondents did not know the full names of any of their fellow occupiers and indeed seem to have known nothing about them. As the FTT said itself, the respondents as applicants “should have tried harder to obtain corroborative evidence from the other occupiers.” There is no indication in the FTT’s decision or in the respondents’ evidence that they tried at all.

Written representations made for the respondents do not address the absence of evidence. They observe, correctly, that the Tribunal will rarely interfere with a finding of fact made by the FTT, because the FTT saw and heard the witnesses and is best placed to assess the credibility of their evidence. However, where a finding of fact is made that cannot have been justified by the evidence the Tribunal will set it aside. And where the FTT has omitted to find a fact that is crucial to what it is deciding, again the decision can be set aside.

It is not claimed in the respondents’ written representations that anything relevant to the nature of Anami’s occupation, or Yasmin’s or Hande’s, was said at the hearing itself. All that is said about evidence given at the hearing is: “Both Miss Lopez and Miss Balota confirm that the property, which has 3 bedrooms and was occupied by 3 tenants during the period. Also included in evidence was an email sent to the landlord from Alexandra Balota, Miss Henandez and Anami Chowdhury confirming their status as tenants.”

It is well-established that the FTT may have to take a pragmatic approach to the issue of whether an occupier lives at a property as their only or main residence. Often this is not addressed directly in the evidence, especially where the occupier in question is not the applicant and has not given evidence. In Opara v Olusemi [2020] UKUT 96 (LC) the Tribunal said this:

“31.

… In the absence of co-operation from other residents, cast-iron certainty is not going to be achievable on this point because of the difficulty of proving a negative; and of course cast-iron certainty is not required, only proof “beyond reasonable doubt”. How is the tenant to show that another occupant has no other home, or no other main home? This element of the offence must to some extent be a matter of inference from the circumstances.”

But there do have to be some circumstances from which an inference can be made. In Opara the Tribunal took the view that there was strong evidence that the property was occupied as their home by the two occupiers whose occupation was relied upon by the applicant for a rent repayment order. They were known as Eddie and Mr Neville. The Tribunal explained:

“28.

As to Eddie and Mr Neville, the FTT made findings of fact - from which there is no appeal - that they rented rooms in the property. The text messages paint a picture of the nature of that occupation. The property seems to have been a chaotic and sometimes dangerous place where the residents had stormy relationships with each other and with the respondent. But the picture is clearly of a place where people lived as their home, and not as guests or as people who did not actually live there.

29.

The [landlord] herself in her second witness statement refers to the residents as making arrangements in “their home”. Her evidence indicates that Eddie lived in the property for some years with Mr Stan. …

30.

The text messages indicate that Mr Neville was a difficult and anti-social resident, who prevented other from using the bathroom and would hide in his room for long periods. It is significant that he received Housing Benefit.”

There was plenty there to justify a finding that Eddie and Mr Neville met the requirement of section 254(2)(c) of the 2004 Act. Here there is nothing, beyond the fact that Anami and two others occupied the property, apparently for short periods. Either the FTT overlooked the need to be satisfied that Anami, and any other third occupier, was living at the property as their only or main residence, or they made that finding but without any evidential basis.