A triplet of brief notes.

Hussain & Ors v London Borough of Waltham Forest (HOUSING – licensing) (2019) UKUT 339 (LC)

This appeal was on the issue of whether a local authority and the First Tier Tribunal could take into account previous convictions that were spent under the terms of the Rehabilitation of Offenders Act 1974 in deciding whether an applicant for a Housing Act 2004 licence was a ‘fit and proper person’.

The relevant facts were

On 12th June 2015, the First Applicant submitted 23 licence applications under Part 3 of the 2004 Act. She stated in the applications that the subject properties did not have any gas appliances so that no gas safety certificate needed to be included. The Respondent discovered this to be untrue for 21 of the properties and, following a request, gas safety certificates were produced. On that basis the Respondent granted licences for each property and took no further action in relation to the false assertion. However, because of subsequent events these licences were revoked on 23rd November 2018.

On 19th May 2016, the First Applicant submitted licensing applications for 7 further properties asserting that they did not have any gas appliances. Inquiries by the Respondent revealed that this was also untrue. Gas certificates were eventually provided in September 2016 but were dated 19th May 2016. The Respondent discovered that the certificates were forgeries. Eventually, on 23rd November 2018 the licence applications were refused and other licences revoked.

As a result of her conduct, the First Applicant was prosecuted for four offences of knowingly or recklessly supplying false information to the Respondent in connection with its functions under Parts 2 to 3 of the 2004 Act, contrary to s. 238 of that Act. On 12th May 2017 she pleaded guilty and received a fine of £40,000 on the same day. Her convictions became spent under the 1974 Act from 12th May 2018.

The First Applicant’s husband was prosecuted for four offences under s. 1 of the Forgery and Counterfeiting Act 1981 for his part in fraudulently backdating the gas safety certificates. On 29th June 2018, he pleaded guilty and received a fine of £1,000 on the same day. His convictions became spent under the 1974 Act from 29th June 2019.

Waltham Forest LBC had cited these convictions in its decision to refuse and revoke licences. The applicants applied to strike out the parts of WF’s statement of case in the FTT appeal proceedings as contravening the Rehabilitation of Offenders Act.This issue was referred to the Upper Tribunal. The questions were whether i) the convictions and, more importantly ii) the conduct underlying the convictions were admissible, either when the council ws making its decision or in the FTT proceedings.

The Upper Tribunal held that section 4(1) RoHA did mean that the person must be:

treated for all purposes in law as not having committed the offence the subject of that conviction or charged with, prosecuted for, convicted of, or sentenced for that offence. In law those matters are disregarded in the treatment of that rehabilitated person;

But:

However, that disregard does not extend any further. In particular, there is no disregard of the conduct or behaviour itself. Instead, it is the legal consequences of that behaviour under the criminal law, namely that it involved a criminal offence and resulted in a conviction and sentence, which are disregarded;

Behaviour amounting to a criminal offence but not resulting in a conviction is not disregarded;

The fact that conduct not only involved committing a criminal offence but also a civil wrong, such as a breach of housing law or landlord and tenant law, is not something which is to be disregarded under this provision.

Where section 4(1)(a) provided

“no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in England and Wales to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction;”

That, in proceedings before a judicial authority, did not exclude evidence of the conduct.

So far as the FTT was concerned, as the appeal was proceedings before a judicial authority, that evidence as admissible.

The local authority, in making decisions on a licence application under Housing Act 2004, involved ‘proceedings before a judicial authority’:

we conclude that decisions by a local housing authority under Parts 2 or 3 of the 2004 Act to grant or refuse applications for a licence, or to revoke such a licence, involve “proceedings before a judicial authority” as defined in s.4(6) of the 1974 Act.

So the local authority was entitled to take into account the conduct underlying the conviction.

Further, application could be made in proceedings, to include evidence as to the convictions, under s.7(3) RoHA. The test was that the court “must be satisfied that justice cannot be done except by letting in evidence of the spent conviction”.

Goldsbrough & Anor v CA Property Management Ltd & Ors (HOUSING – HOUSE IN MULTIPLE OCCUPATION) [2019] UKUT 311 (LC)

Against whom can a tenant bring a rent repayment order application? In a situation which is increasingly common, this case involved the property owner and an intermediate ‘rent 2 rent’ company who then granted tenancies (of an unlicensed HMO) to the applicants. The owners of the property were Mr & Mrs Gardner. They had granted a 5 year lease to CA Property Management Ltd for sub-letting, with rent of £1400 per month. What had been a two bedroom flat was converted to five bedrooms, with a rent of £550 per room. Under the lease, the Gardners were responsible for insuring the property, to be liable for maintenance of the external and internal structure, gas, electrical systems and heating, to be responsible for the safety of the electricity and gas supplies to the property, and to pay the cost of obtaining a gas safety certificate, an NICEIC certificate and an energy performance certificate.

Two of the tenants, brought an application to the First Tier Tribunal seeking a rent repayment order:

(Mr Goldsborough’s application) naming as respondents both CAPM (described as “Agent”) and Mr and Mrs Gardner (described as the landlord), giving as the grounds of the application both (1) occupation and control of an unlicensed house in multiple occupation (“HMO”) by Mr and Mrs Gardner and (2) harassment and illegal eviction on the part of CAPM. Mr Swart’s application was made on 8 February 2019 only against Mr and Mrs Gardner and was made on the ground of operating and controlling an unlicensed HMO.

The FTT designated CAPM as the respondent to both applications on the basis that CAPM were the landlord. That decision was appealed.

The Upper Tribunal held (though on different grounds to those advanced by the appellants with the assistance of Flat Justice) that the application could also be brought against the Gardners.

The Housing and Planning Act 2016 did not restrict an application to the immediate landlord.

CAPM were the immediate landlords of the applicants. They were not agents and no RRO application could be brought against agents who did not have a lease of the property. The FTT was right on these points. However:

Where I part company with the FTT is in its restriction of liability to an RRO to “the landlord” of the occupier. That is not what the 2016 Act says. The only conditions that it sets for liability to an RRO are, first, that the person is “a landlord” and second that that person has committed one of the offences. Certainly the person must be a landlord of the property where the tenant lived; section 41(2)(a) requires that the offence relates to housing that, at the time of the offence, was let to the tenant. It does not say that the person must be the immediate landlord of the occupier; if that was what was meant, the statue would have said so.

The 2016 Act is in this respect rather simpler than the 2004 Act. Its choice of different wording from that employed in the 2004 Act is clearly deliberate and there is no need to import any definitions from elsewhere. The word “landlord” is straightforward, there is no need to assess who is the “appropriate person”, and therefore no need to determine, as between CAPM and the freeholders, which landlord is entitled to receive the rent on their own account, as section 74(10) would require.

Both CAPM and the Gardners were ‘a landlord’ of the property.

The case would now proceed with the applicants having to show that the offences had been committed by the people the applications had been brought against.

Comment

I’ve made my views on ‘rent 2 rent’ pretty clear for some time. Here is another way for it to backfire. The concern behind this appeal was that it would otherwise be entirely possible for the ‘landlord’ intermediate lessee to be unable to licence the property, as not having sufficient control over the property, but then for it not to be possible to seek an RRO against the owners as not the immediate landlords (plus of course, the rent 2 rent intermediate lessee companies are often men of straw and would just fold, leaving any RRO unpaid). That concern has been addressed, but the flip side is that property owners who let to rent 2 rent intermediate lessees face being completely dumped in it by the greed and incompetence of those set ups, and potentially facing rent repayment orders. Whether those RROs would exceed the amount in rent the owner received from the intermediate is another question.

There remain questions. S.40(2) H&PA 2016 says that an RRO is an order for the landlord under a tenancy of housing in England to repay an amount of rent paid by a tenant. How does this hold where the rent was not paid directly to the person against whom the RRO is made?

The licensing offence at s.72(1) Housing Act 2004 states

A person commits an offence if he is a person having control of or managing an HMO which is required to be licensed under this Part (see section 61(1)) but is not so licensed.

Having control is defined at s.263 HA 2004:

“(1) In this Act “person having control”, in relation to premises, means (unless the context otherwise requires) the person who receives the rack-rent of the premises (whether on his own account or as agent or trustee of another person), or who would so receive it if the premises were let at a rack-rent.

(2) In subsection (1) “rack-rent” means a rent which is not less than two-thirds of the full net annual value of the premises.

(3) In this Act “person managing” means, in relation to premises, the person who, being an owner or lessee of the premises—

(a) receives (whether directly or through an agent or trustee) rents or other payments from—

(i) in the case of a house in multiple occupation, persons who are in occupation as tenants or licensees of parts of the premises …

and includes, where those rents or other payments are received through another person as agent or trustee, that other person.”

We will have to see how this plays out where there is an intermediate lessee as the direct landlord of the tenants.

Baz v Steele, Croydon County Court (2019) (Unreported – I’ve see a note of the judgment)

As we know, The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment No. 2) Regulations 2016 set out a new ‘form 3’ as the prescribed form for section 8 notices that had to be used on or after 1 December 2016.

What if a previous form of s.8 notice was used, for example, the one prescribed in The Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997/194 (now three versions out of date)?

That was the issue in this possession case. (We should note that the tenant was unrepresented, the issue was spotted and very properly raised by counsel for the claimant). The claim was on grounds 8, 10 and 11 – rent arrears.

The claimant’s argument was that the form was to ‘substantially the same effect’ as per s.2 of the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015/620. The information provided on the form in relation to grounds 8, 10 and 11 was unchanged across the versions and the landlord had stated the grounds.

The county court agreed that the form was to substantially the same effect and made the possession order.

Comment

A county court decision, so it still remains the case that using the wrong form 3 will always carry a risk to the landlord of the court throwing out the claim. Moreover, the substantial information on the ‘form 3’ section 8 notice is different in kind and degree to that on the prescribed form 6A s.21 notice, so this would not be transferable to s.21 notices. But it is interesting to see the court prepared to go with ‘substantially the same effect’ where the relevant information for the grounds used is the same.

My thanks to Michael Grant of 42 Bedford Row for his note on the decision.