[2025] UKUT 194 (LC)

Section 40 of the Housing and Planning Act 2016 enables the FTT to make a rent repayment order in favour of a tenant if the FTT is satisfied to the criminal standard of roof (beyond reasonable doubt) that the landlord has committed one of the offences listed in that section. They include the offence created by section 72(1) of being a person in control of or managing a house in multiple occupation (an “HMO”) that is required to be licensed and is not licensed.

Section 254 of the Housing Act 2004 (“the 2004 Act”) defines HMOs using a number of “tests”. The test relevant to this appeal is the “standard test” in subsection (2) which states that a building or part of a building is an HMO if:

“(a)

it 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 (see section 258);

(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 (see section 259);

(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.”

Section 259 of the 2004 Act, referred to in section 254(2)(c) above, provides that persons occupying a property while they are full-time students, or occupying it as a refuge from violence or abuse, are to be regarded as having their only or main residence there.

Not all HMOs satisfying the test set out above need to be licensed; the effect of section 61 of the 2004 Act is that HMOs prescribed by regulation need a licence, as do those in an area designated under section 56 as subject to additional licensing. The regulations made under section 61 make a licence compulsory for an HMO occupied by five or more persons in two or more separate households. However, the property relevant to this appeal is in an area designated by the local housing authority under section 56, with the effect that at all material times it required a licence if it was occupied by three or more persons in two or more separate households.

Section 72(1) of the 2004 Act provides it is an offence to be a person in control of or managing an HMO which is required to be licensed and is not so licensed.

Accordingly, a tenant who applies for a rent repayment order has to prove, to the criminal standard, that the relevant property was an HMO, that it required a licence at the relevant time, that it did not have a licence and that the landlord was the person managing or in control of it. Often all or most of those requirements are uncontroversial. The issue in this appeal relates to the first of those requirements; the appellant landlord says that the FTT should not have found that the property was an HMO because there was no evidence that one of the occupiers was living there as her only or main residence (section 254(2)(c) above).