Fah Hor Chong v Eleonora Severgnini & Ors
[2024] UKUT 348 (LC)
George Marigold & Ors v Robert Wells
3 February 2023
[2023] UKUT 33 (LC)
Upper Tribunal
A landlord said he didn't need a license for his house because the council told him so. The judge believed him, but a higher court said the judge should have checked if that was still true for the whole time the landlord didn't have a license. The case is going back to the judge to check.
Key Facts
- •Mr. Wells controlled an unlicensed HMO between April 1, 2019, and November 12, 2020.
- •He claimed a reasonable excuse: he applied for a license but was told by Tower Hamlets council he didn't need one, and they would contact him if that changed.
- •The FTT accepted Mr. Wells's account of a phone call with a council employee, Mr. Shah, who allegedly said this.
- •The tenants appealed, arguing the FTT wrongly applied D'Costa v D'Andrea and didn't consider how long the excuse lasted.
- •The additional licensing designation came into force on April 1, 2019.
Legal Principles
A person commits an offence if they control an HMO required to be licensed but isn't.
Section 72(1), Housing Act 2004
There's a defence if the person had a reasonable excuse.
Section 72(5), Housing Act 2004
The FTT can make a rent repayment order for offences listed in section 40, including section 72 offences.
Section 43, Housing and Planning Act 2016
An appeal to the Upper Tribunal against an FTT decision on a rent repayment order isn't limited to points of law.
Section 53, Housing and Planning Act 2016
A reasonable excuse must be objectively reasonable and cover the entire period of the offence; a genuinely held belief isn't sufficient.
Perrin v HMRC [2018] UKUT 156 (TCC)
Outcomes
Appeal allowed.
The FTT failed to consider whether Mr. Wells's excuse remained reasonable throughout the entire period of the offence. They didn't adequately address the tenants' argument that his inaction after November 2018 rendered his excuse unreasonable.
Remitted to the FTT for further consideration.
The Upper Tribunal didn't hear the evidence and couldn't substitute its own decision. The FTT should re-evaluate whether the excuse remained reasonable for the full period.