James Barker v Chantelle Kiran Shokar
[2024] UKUT 17 (LC)
Phoebe Cottam & Ors v Lowe Management Limited
20 December 2023
[2023] UKUT 306 (LC)
Upper Tribunal
A building owner (an NHS group) rented out a property, which may have been an unlicensed house with multiple occupants. A lower court wrongly said the NHS group was in charge, letting them off the hook. A higher court corrected the mistake, sending the case back to figure out who *was* really in charge, and how much money should be repaid to the tenants.
Key Facts
- •Appeal against First-tier Tribunal (FTT) decision on rent repayment order for unlicensed HMO.
- •Freeholder is a health service body (NHS South East London CCG).
- •Property (The Gables) leased to Lowe Management Limited (Lowe) via NHS Greenwich Charitable Trust (agent for CCG).
- •Respondent (Lowe Management Limited) sublet to guardians, potentially creating an unlicensed HMO.
- •Appellants sought rent repayment order under Housing Act 2004, s.72(1).
- •FTT ruled property not an HMO due to Schedule 14, paragraphs 1 and 2 of Housing Act 2004.
- •Appeal focuses on interpretation of Schedule 14 and definition of "person having control" (Housing Act 2004, s.263).
Legal Principles
Interpretation of Schedule 14, paragraphs 1 and 2 of the Housing Act 2004 regarding HMOs managed by health service bodies.
Housing Act 2004
Definition of "person having control" under Housing Act 2004, s.263(1): focuses on who receives rack-rent, or would receive it if premises were let at rack-rent.
Housing Act 2004, s.263(1)
Definition of "person managing" under Housing Act 2004, s.263(3): includes owners, lessees, or agents/trustees receiving rent.
Housing Act 2004, s.263(3)
Relevant case law interpreting "person having control": Pollway Nominees, Clayhope, Hastings Borough Council v Braear Developments, Cabo v Dezotti.
Pollway Nominees Limited v Croydon London Borough Council [1987] 1 AC 79; R v London Borough of Lambeth ex p Clayhope Properties Limited [1988] QB 563; Hastings Borough Council v Braear Developments Limited [2015] UKUT 415 (LC); Cabo v Dezotti [2022] UKUT 240 (LC)
Outcomes
Appeal succeeds on the second ground: CCG was neither "in control" nor "managing" The Gables.
FTT misconstrued s.263(1) in determining CCG as the person in control. CCG did not receive rack-rent and, having leased to Lowe, could not currently let at rack-rent. Therefore, Schedule 14 was irrelevant.
Case remitted to FTT to determine whether the respondent (or Lowe) was the person managing or in control and to quantify the rent repayment order.
FTT needs to make explicit findings on the respondent's status and provide sufficient information to calculate the rent repayment order. Insufficient detail provided on bullying/inappropriate behavior and the respondent's financial circumstances.