Camfield & Ors v Uyiekpen & Anor (HOUSING – RENT REPAYMENT ORDER – evidence – pro forma witness statements) (2022) UKUT 234 (LC)

An appeal from an FTT decision dismissing an application for a rent repayment order, which shows the importance of establishing ALL the elements of a relevant offence, while also providing a snapshot of the horrorshow that is ‘get rich quick’ rent to rent set ups.

The appellants were tenants of a property in Newham. The property had been rented from the owner by Mrs Nehizena Uyiekpen and Thrilla Gukuta, after they “came across guidance on the internet explaining how to make money from a “rent-to-rent strategy”.  They studied the guidance and decided, as Mrs Uyiekpen put it, “to get into the property game”. ”

They rented the property on an assured shorthold tenancy (!) which forbade sub-letting (!!), and turned the living room of the four bedroom property into another bedroom, and started subletting. It was common ground that during the period December 2019 to March 2020, there were five separate ‘households’ in the property and it was not licensed.

In July 2020, two vacant rooms were let to a Brazilian family of five, causing other occupants to complain to Foxtons – the agents for the owner – who required Nehizena Uyiekpen and Thrilla Gukuta to bring the sub tenancies to an end. This happened, in a manner giving rise to accusations of harassment and illegal eviction, but those weren’t in issue in this appeal.

There was an application for an RRO in October 2020, by four of the five tenants during that Dec 2019 – March 2020 period. They were assisted and represented by Flat Justice, a non regulated, not for profit company that specialises in RRO claims.

As the Upper Tribunal describes it, the evidence filed from each tenant was

very similar and give the impression of being based on a pro-forma draft addressing, each in a single sentence, the conditions required to demonstrate that the property was an HMO.  Minimal additional information was inserted to provide details of the witness’s name, period of occupation, rent and other details. 

The apart from the reference to the schedule of occupation in the application, the statements did not address the occupation by Ms Tseng – the fifth tenant in the Dec-March period – who was not a party to the application.

The landlords, assisted by counsel, filed a statement of case defending on the basis that section 254(2) Housing Act 2004 condition for a licensable HMO was occupation as the only or main residence of the tenants, and this was not made out for the five households in this case. The tenants did not serve any further evidence in response.

The FTT decided that it could not be satisfied beyond a reasonable doubt that the offence had been committed, as there was no evidence as to the relevant status of Ms Tseng and the FTT could not therefore be satisfied that she met the necessary qualifications to permit the making of a rent repayment order.

The tenants, assisted by Flat Justice, appealed.

The Upper Tribunal noted the difficulties with the ‘pro forma’ tenant statements as to both the status of their own occupation and that of others.

The deficiencies of this form of evidence are not difficult to see.  By limiting the information provided to a bald confirmation of the statutory qualifying conditions the witness leaves many questions unanswered.  What did she mean by the statement “the property was my main residence”? Did she have other residences? If so, where were they and how much time did she spend there? What was it that made this property her main residence?  Similarly, the statement that “the property was occupied as per the Occupancy Table shown in the applicant bundle with this statement” begs the question whether the witness had seen that bundle or the table said to have been included in it and how she was able to confirm its contents.  How would she know who lived there before or after her period of occupation?

More significantly, none of the appellants said anything about Kate Tseng whose name appeared in the occupation schedule but who did not provide a witness statement and was not mentioned by any of them. 

Opara v Olasemo (2020) UKUT 96 (LC) and Mortimer v Calcagno (2020) UKUT 122 (LC) had found that it was not necessary to have first hand evidence from all the occupants of an HMO in order to be satisfied beyond a reasonable doubt that it was the main residence of all (or a sufficient number) of tenants, and that the Tribunal can draw inferences from findings of fact, this did not help the appellants in this case.

However, assessing the quality of residence was a question of fact in every case. The difficulty in this case was

that there was not a single piece of evidence directly addressing the quality of Ms Tseng’s occupation of the property or the facts relevant to it.  Nothing was known about her other than that she had paid a rent for a room for a period of three months and had moved belongings into the property.  Nothing was known about her personal circumstances, her age, her nationality, whether she had a family, whether she was employed, whether she had an income or received benefits, including housing benefit, how long she spent at the property during her period of residence, whether she went away at the weekends or for other periods, whether she spent the Christmas and New Year holiday period at the property, where she went when she left, and why she left.  Evidence on some or all of those matters would have allowed the FTT to consider whether it was satisfied beyond reasonable doubt that she occupied the property as her only or main residence, that it was her home, in other words, and not simply a convenient temporary place to live while she spent time in London.  The facts known to the FTT were not inconsistent with a number of different possible life stories. Ms Tseng might have been a student from abroad who had come to this country for a short period of study, or a person working in London but living somewhere else in the country who returned to her permanent home at the weekends or at other times when she was not working.  She may have had a home elsewhere which an informed observer could have concluded was her main residence.  The FTT might have felt able to exclude those possibilities if it had been told anything at all about her, but it was not.

The appeal was dismissed, with a general warning on the necessity of proving all the elements of the offence.

This case is an example of the dangers of adopting a formulaic, tick box approach to the evidence necessary to prove the elements of a criminal offence to the required criminal standard.  The pro-forma witness statements relied on by the appellants omitted to mention one of the critical conditions.  The documents are so concise and impersonal that it is impossible to find in them any material from which to begin to form an impression of the applicants and their house mates.  Those of the appellants who attended the hearing before the FTT and who gave evidence were able to make good the shortcomings of their written statements, but nobody seems to have noticed the need for evidence concerning the quality of the occupation of those who were not giving evidence, but proof of whose status was essential.  One of the necessary elements of the offence was simply not addressed.  The appellants would have been better advised to state the facts relevant to their occupation of the property in their own words and to explain what they knew of the others who were not going to be called to give evidence.  Had they done so the outcome of the application might have been very different.  As it is, I dismiss their appeal.