[2025] UKUT 233 (LC)

The issue in this appeal is one of statutory interpretation. It is not a question of jurisprudence or legal theory. I intend no disrespect to Mr McGowan’s scholarly submissions if I focus on those parts of his argument which directly concern the proper interpretation of the statute.

As Tesco v Nattrass demonstrates, when a statute refers to an offence having been ‘committed’ it does not necessarily mean that someone who ‘committed’ it is guilty of the offence and liable to punishment. Notwithstanding that it may refer to the commission of the offence, the statute may nevertheless allow for an exculpatory defence. As a matter of language, determining that an offence has been committed and establishing that someone is guilty of the offence may be different exercises. I therefore accept the existence, in some contexts, of the distinction on which Mr McGowan relies.

Mr McGowan acknowledged that in what he called the substantive provisions of the 2016 Act the word ‘committed’ is used to refer to circumstances in which guilt has been established. It is not possible to read section 43(1) as giving the FTT power to make a rent repayment order against a landlord who has ‘committed an offence’ if the same landlord has established a reasonable excuse defence.

The same must be true of section 72 of the 2004 Act. Section 72(6) and (7) provide that a person who commits an offence under subsections (1), (2) or (3) is liable to a fine. A person who has a reasonable excuse, and therefore a defence, will meet the description in those subsections of a person who ‘commits’ the relevant offence (they will have had control or management of an unlicensed HMO, or will have breached licence conditions) but are clearly not within the scope of subsections (6) or (7). The expression ‘commits an offence’ in section 72 clearly means ‘commits an offence and cannot show that they have a defence under section 72(5)’.

Mr McGowan also acknowledged that it was necessary for an applicant for a rent repayment order to demonstrate the absence of certain statutory defences and that in that context the distinction he relied on between application provisions and substantive provisions was more difficult to maintain. In particular, section 72(1), 2004 Act provides that a person commits an offence if they have control of or are managing ‘an HMO which is required to be licensed under this Part (see section 61(1)) but is not so licensed’. It is therefore necessary for the applicant to prove that the HMO was required to be licensed under Part 2. Section 61(1) (which is incorporated into section 72(1)) excludes HMOs subject to a temporary exemption notice or a management order from the application of Part 2. It is therefore for the applicant to demonstrate that neither form of exclusion was applicable, and to explain their case in the application and lead evidence on that issue. These features of the legislation do not support the appellants’ interpretation because they erode the distinction between the application provisions and the substantive provisions.

The effect of the appellants’ interpretation of section 42(2)(b) of the 2016 Act requires that Parliament must be understood to have used the same word (‘committed’) intending it to mean different things in different sections dealing with the same subject matter in the same Act. That would be contrary to the usual approach to statutory interpretation, as explained in Bennion, Bailey and Norbury on Statutory Interpretation at section 21.3:

There is nothing in the language of the 2016 Act to indicate that ‘committed’ was intended to have a different meaning in section 42(2)(b) from the meaning it is acknowledged to bear in section 43(1) and where it undoubtedly refers to circumstances in which a landlord does not have a reasonable excuse defence. It may be assumed that both provisions were drafted by the same hand and, considering their proximity, it is very difficult to believe that any distinction between the two sections was contemplated. Mr McGowan was unable to point to any clear indicator in the language of the Act suggesting inconsistent meanings were intended and he acknowledged that his argument based on the different function of different sections was not watertight.

The purpose of section 42(2)(b) is to impose a time limit for the commencement of applications. Time limits are generally introduced to provide certainty and to prevent stale claims and there is no principle that they should be given an interpretation intended to maximise the time available for a step to be taken. There is no obvious reason why Parliament should have considered that the clock should not begin to run down against the making of a claim from the earliest point at which a defence became available. On the contrary, it seems logical and consistent that time should begin to run against an application from the moment a landlord’s behaviour ceases to be blameworthy.

The expectation that the same word is used consistently throughout the Act, and especially in the same group of sections, is therefore a very substantial obstacle to the acceptance of the appellants’ interpretation. In the absence of some very good reason to adopt different meanings in different places, it is decisive. The practical difficulty that an applicant may not know of the existence of a reasonable excuse and may not be sure when time will begin to run against an application, is not a sufficient reason to read the statute in the unorthodox way suggested by the appellants.