[2025] UKUT 233 (LC)

The appeal is based on the proposition that the availability on a particular day of a defence of reasonable excuse does not mean that, on that day, the relevant housing offence was not being ‘committed’ for the purpose of section 41(2)(b) of the 2016 Act. The appellants contend that the offence was committed on every day on which the respondent was a person in control of or managing an unlicensed HMO which ought to have been licensed. If the respondent could avail itself of a reasonable excuse offence, it would not be guilty of the relevant offence and could not be punished for it, but that did not mean that the offence had not been committed. In short, the effect of the statutory defence was to excuse the offence, not to deny that it had been committed.

This proposition was supported in interesting and detailed submissions by Mr McGowan. He distinguished between what he called a ‘freestanding defence’, meaning one which is entirely separate from the provisions creating the corresponding offence, and a ‘defence on the merits’, meaning the absence of an essential ingredient of an offence. Only a defence on the merits has the effect that there is no offence. Academic writers to whom Mr McGowan referred have made this distinction, as did the House of Lords in DDP for Northern Ireland v Lynch [1975] AC 653, when considering whether the defence of duress was available to a charge of aiding and abetting murder. The same distinction was clear in Tesco v Nattrass [1972] AC 153, a case under section 24 of the Trade Descriptions Act 1968 which provided a defence in proceedings for an offence under the Act where ‘the commission of the offence’ by the person charged was due to a mistake, or the act of another person or some other cause beyond his control. Lord Diplock observed that:

Mr McGowan sought support for the application of this distinction from a wide range of sources, including the CPS Code for Crown Prosecutors, Guidance to local housing authorities on rent repayment orders and standard forms published by the FTT. While I accept that these demonstrate that an applicant for a rent repayment order is not expected to satisfy themselves of the guilt of the respondent at the stage of making their application and is not required to show that there is no defence, they do not help us understand what Parliament meant when it enacted section 41(2)(b).

It was relevant, Mr McGowan suggested, that in Chapter 4 of Part 2 of the 2016 Act the operative elements of the rent repayment order regime can be divided into two groups, sections 41 and 42, which he referred to as ‘the application provisions’, and sections 43 to 46 which he dubbed ‘the substantive provisions’. The application provisions, including section 41(2)(b) which contains the relevant time limit, relate only to the making of the application and describe a procedural stage of the proceedings before any consideration of guilt or penalty is required. The application provisions are clearly directed towards applicants, and there is no need to interpret the word “committed” as referring to guilt, or to require the absence of a free standing defence; it should be taken instead to refer to the existence of the elements of the offence which it is necessary for the applicant to establish. Only later, in the substantive provisions, which are concerned with determination of liability and penalty, and which are directed at the FTT, is it clear that ‘committed’ connotes guilt, as in section 43(1), which provides that a rent repayment order may be made if the FTT is satisfied, beyond reasonable doubt, ‘that a landlord has committed an offence’.

Mr McGowan suggested that the important distinction between the two sets of provisions is that the ‘application provisions’ describe the circumstances in which tenants or local housing authorities may apply for a rent repayment order whereas the substantive provisions describe decisions to be made by the FTT. He submitted that when interpreting the reference in section 41(2)(b) to the commission of an offence regard should be had only to the matters to be established by applicants in order to make a successful application, not to the absence of matters which must otherwise be established by landlords in response to an application, such as a reasonable excuse defence, which form part of the Tribunal’s decision making. This was consistent with the application provisions relating to rent repayment orders sought by local housing authorities which require that a preliminary notice of intended proceedings be given, allowing the landlord to make representations. By section 42(5) such a notice may not be given after the end of the period of 12 months beginning with the day on which the landlord ‘committed the offence’ to which it relates. That demonstrates that whether a landlord has ‘committed the offence’ does not require a consideration of whether the landlord may be able to make representations offering a reasonable excuse. When a local housing authority makes the decision to serve a notice of intended proceedings and considers whether an ‘offence was committed’ in the previous 12 months, its assessment does not involve a consideration of the absence of the freestanding defence under section 72(5) of the 2004 Act.