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.
Interesting. What counts as evidence in civil case defending limited company landlord from claim by long lease holder brought for collateral reasons of disrepute and financial loss to landlord? Patterns of action. nonresponse to sharing of information? Seeking that which is known as nonviable?
We can’t give legal advice on this site.
Please let me know where you or A. N. Other can give legal advice. Verina Glaessner
I’d suggest you contact a solicitor.
I’ve not read the full decision beyond what you’ve excerpted in this post, but I must say, it seems to me that this case could have been won, missing witness statements from Kate aside. I may be missing something, but it seem so me that the case has turned on a common misconception which I have to say it is sad to see JFT advocates, not to mention (seemingly both FTT & UT) judges themselves, harbouring.
Based on this: “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.”
And this: “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.”
It seems to me that everyone involved was misguided as to the elements of the offence. Again, not having read the full decision, I assume it was not in dispute that the four applicants had occupied the property as their “only or main home,” and that it was further not in dispute that Ms Tseng also, in some or another capacity, occupied the property. This, by itself, was sufficient to complete the s72(1) offence, if properly argued.
This is because, despite common misconceptions, the threshold of 5 occupiers only features in the UKSI 2018/221 Prescribed Descriptions Order, which does NOT call for occupation by the necessary individuals as their “only or main home.”
This only features in s254(2), which only requires an unqualified plural of “persons” (even 2 would suffice, so never mind 4, which there here were) to occupy the property (per 254(2)(b)) “as their only or main residence” (per 254(2)(c)). Once this threshold of 2 or more occupying as their main home is complete (assuming the other conditions of (a, d, e & f) are all also met), then the property is an HMO in law.
Only then is it necessary to consider whether it requires licensing under s61(1). If it has no temporary exemption notice nor any management order in force, then one must ask whether part 2 applies to the HMO by evaluating the tests under s55(1)(a) and s55(2)(a). At the latter point, one must finally see whether it meets the nationally prescribed description for mandatory licensing as provided by the 2018 PD Order No. 221.
The 2018 Order requires only that it be “occupied by 5 or more persons” “living in two or more separate households” (the latter condition seeming to be rather manifestly redundant and pointless atop s254(2)(b), which must necessarily already be satisfied if the Order is even to be considerable), but nowhere at all that I can see does the 2018 order call for anything to the effect of those 5 people occupying the property “as their only or main residence.”
As long as it was accepted that Ms. Tseng had occupied the property in some manner or another, the offence should have been made out.
As I said, this is a common misconception, which seems to be caused by the atrocious drafting and organisation of HA 2004, held by many in the space, that is to conflate the thresholds of 2018/221 and s254 with each other.
But I then wonder whether this doubt in the establishment was even raised or cast by the advocates for the landlord, or if it had been the FTT taking its own initiative to point it out. If the latter had been the case, then I would be even more disappointed.
On top of this, we have “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,” which suggests an unfortunate possible ignorance of the deeming provisions of section 259.
The Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 at 4(c)(1) also requires the property to meet the s.254(2) HA 2004 test.
As it is, your interpretation falls foul of binding Upper Tribunal authority.
Curiously, perhaps, but not directly, and in that case either the UT or I am missing something, as a different one does not seem founded by the contents of the statute.
Imagine a 5 bedroom house with no private toilets or cooking facilities, where the rooms are individually occupied by five unrelated friends, Alice, Bobby, Charlie, David and Ed.
Alice, Bobby and Charlie are full time students (thus deemed under s259 as occupying as their main/only residence), while David and Ed are merely on holiday.
Condition 254(2)(b) (on top of (a)) seems to me to be met, since Alice, Bobby and Charlie are “persons,” who, being all unrelated, do not form a single household.
On that basis, condition 254(2)(c) would also then seem to be met, since “those persons” (ie such persons as may satisfy condition (b)) are to be treated as occupying their bedrooms as their only or main residence under s259.
Assuming that conditions (d) to (f) are all met, this house is now an HMO by way of the s254(2) standard test.
It seems to me to matter not, for the purposes of condition (b), that the living accommodation is occupied by the persons of Alice, Bobby and Charlie _among the other persons_ (of David and Ed). Does this seem to you to matter? After all, condition (b) does not demand that the accommodation is to be occupied _only_ by the persons to be nominated by the party seeking to make out the offence or establish the building/part as an HMO. If it did, then “those persons” would necessarily be restricted to comprehensively referencing all of the persons who occupy the accommodation while not forming a single household.
A side note, however, on the converted building test, which seemingly loosens this even further: it only requires that the whole or partial building CONTAIN non-self-contained units of living accommodation, not that it CONSIST of such units.
In this regard, the house would contain the bedrooms of Alice, Bobby and Charlie (despite also containing those of the holidaymakers Dave and Ed), and so the entire house would stand liable to be an HMO, if all of the other conditions could be likewise made out. This seems so to me, because the party bidding to establish the test could offer the rooms of Alice, Bobby and Charlie as the accommodation units that are contained (albeit among other units) in the building. “THE living accommodation” (specified/nominated for the purpose of making out the test) would then be occupied by persons (A, B and C) not forming a single household (thus making out condition (c)). “THOSE persons” (ie, A, B and C) would then have to be treated under s259 as occupying “THE living accommodation” (ie the bedrooms of A, B and C) as their only or main residence (so fulfilling condition (d)). Assuming that the two irrelevant conditions (e) and (f) are met, then the converted building, too, is an HMO subject to regulation.
In this way, the converted building test is even looser than the standard test, because even if for whatever reason, the “persons” occupying the accommodation as per 254(2)(b) or 254(4)(c) are to be construed as being an exhaustive reference to all the persons occupying all of the nominated accommodation units, then the nomination of accommodation units could simply be reduced so as to be non-exhaustive while still fulfilling the word “contains” (as opposed to “consists”).
Meanwhile, the presence of A, B and C mean that the house is not exempted from being an HMO by virtue of Sch. 14, para. 7.
All of this, by itself, I think means that it is then subject, as an HMO to the strictures of Part 1, regardless of whether or not it is further one to which Part 2 applies: if I’m not mistaken, Part 1 has certain regulatory provisions that apply to all HMOs, defined by the above standards, regardless of whether or not they are HMOs to which Part 2 applies.
Whether or not they require a license is then, in large part, determined by evaluating whether or not the HMO is one to which Part 2 applies. If it is (s55), and the remaining conditions (of s61) are fulfilled (ie, no TEN or FMO/IMO in place), then the HMO must be licensed. For the purpose of evaluating the provisions of s55, it is of course necessary to consider the 2018 PD Order.
You are of course right that Art. 4 of the Order requires fulfillment of one of the tests in s254, but this seems to me functionally redundant and entirely inconsequential, anyway: the 2018 Order only falls to be considered in the course of evaluating s55. In order to have gotten so far as to consider s55, one must have necessarily already gotten past one or another of the hurdles of s254. In this regard, Art 4(b) and (c) of the 2018 Order seem to me wholly redundant, as their substance is already wholly, and unevadably, embedded in s254: see subsections (2)(b), (3)(b) (via (2)(b)) and (4)(c).
That said, considering the seemingly redundant sub-articles 4(b) and (c), it is clear that the draughtsmen are not shy of duplicating terms, even where they are wholly and functionally identical to other provisions which must necessarily have already been satisfied for the subject ones to even operate, where, for whatever reason, they wish to.
Yet, sub-articles (b) and (c) (the latter of which serves to import the requirements of any of the several s254 tests into the prescribed description) are separate sub-articles to sub-article (a), which demands (standing on its own, independently of sub-articles (b) and (c), simply, that a subject HMO: “(a)is occupied by five or more persons;”
Could sub-article (a) not have required that, for an HMO to meet the prescribed description, it be “occupied by five or more persons as those persons’ only or main residence,” had Parliament intended that all 5 people must so occupy for their house to meet the prescribed description? Or could sub-article (a) not have been followed by another subarticle (let’s call the hypothetical addition (aa)) to provide that “the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (as under HA 2004, section 259);”?
Given the redundant nature of the existing sub-articles (b) and (c), I personally cannot see why not.
As the legislation itself actually is, I cannot see why the further “occupation” (however casual or temporary) by our fourth and fifth occupiers Dave and Ed do not effectively satisfy the threshold of Article 4(a) of the 2018 PD Order which calls simply for occupation by five or more persons, which, thanks, to D and E, we have, irrespective of the nature or character of their occupation, however transient. (In fact, if anything, the existence of sub-article 4(c) even seems to me to strengthen the case for my construction, because it separately (yet somehow rather more decidedly/deliberately) imports the conditions at 254(2)(c) and (4)(d) for “occupation as only or main residence” as an integral part of the broader tests in s254(2) to (4), which are in turn, indeed clearly satisfied by 3 or 4 “only or main residence” occupiers, and patently don’t require 5.)
Given all of this, I really cannot see how or why no LA or tenant advocates have apparently ever argued for this construction, other than simply because they’ve never bothered examining this horrendously messy and labyrinthine heap of legislation closely or granularly enough to notice the distinction. Still slightly surprised, though.
Or, am I totally missing something here?
If I’m right, then Camfield et al totally could have won their case!
—-
Annex – HA 2004 s254(2):
A building or a part of a building meets the standard test if—
(a)it consists of one or more units of living accommodation not consisting of a self-contained flat or flats;
(b)the living accommodation is occupied by persons who do not form a single household (see section 258);
(c)the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (see section 259);
(d)their occupation of the living accommodation constitutes the only use of that accommodation;
(e)rents are payable or other consideration is to be provided in respect of at least one of those persons’ occupation of the living accommodation; and
(f)two or more of the households who occupy the living accommodation share one or more basic amenities or the living accommodation is lacking in one or more basic amenities.
—-
Annex – HA 2004 s55(1) to (4):
Licensing of HMOs to which this Part applies
(1)This Part provides for HMOs to be licensed by local housing authorities where—
(a)they are HMOs to which this Part applies (see subsection (2)), and
(b)they are required to be licensed under this Part (see section 61(1)).
(2)This Part applies to the following HMOs in the case of each local housing authority—
(a)any HMO in the authority’s district which falls within any prescribed description of HMO, and
(b)if an area is for the time being designated by the authority under section 56 as subject to additional licensing, any HMO in that area which falls within any description of HMO specified in the designation.
(3)The appropriate national authority may by order prescribe descriptions of HMOs for the purposes of subsection (2)(a).
(4)The power conferred by subsection (3) may be exercised in such a way that this Part applies to all HMOs in the district of a local housing authority.
—-
Annex – 2018 PDO Art 4:
Description of HMOs prescribed by the Secretary of State
4. An HMO is of a prescribed description for the purpose of section 55(2)(a) of the Act if it—
(a)is occupied by five or more persons;
(b)is occupied by persons living in two or more separate households; and
(c)meets—
(i)the standard test under section 254(2) of the Act;
(ii)the self-contained flat test under section 254(3) of the Act but is not a purpose-built flat situated in a block comprising three or more self-contained flats; or
(iii)the converted building test under section 254(4) of the Act.
Your example would be an HMO, but not one subject to mandatory licensing. 2018 regs say 5 or more persons and meeting s.254(2), S.254(2)(c) requires occupation by ‘those persons’ (ie those not forming a single household) to occupy as only or main residence.
Any idea why Mortimer v Calcagno (2020) UKUT 122 (LC) doesn’t seem to be available anywhere online? So strange.
On that logic, then I suppose that it would make no difference whether it was the standard “consisting” or converted building test “containing” test that was being applied?
Yet I’m still then trying to find a plausible/realistic constructive explanation for the inclusion of Article 4(b): why include it, when its ground is already (in fact more than) completely covered by 254(2)(c) and (4)(d)? What possible purpose could it have?
Art 4(b) is not covered by 254(2)(c) or 254(4)(d). It is plausibly covered by 254(32)(b) or 254(4)(c) but a bit of over-drafting is hardly uncommon.
Fair enough, I clearly stand corrected concerning (2)(c) vs. (2)(b).
Though I don’t understand why you say “plausibly,” and also don’t understand why over-drafting being hardly uncommon would support simply overlooking the provision, when the (to me, more than plausibly, but rather clearly) duplicated provision can be given more effect by founding a construction wherein the several requirements of Art 4 of the PDO represent independent limbs of the requirements, with one requiring “occupation” by more than five persons, another independently requiring “occupation” by persons not forming a single household, and a last requiring satisfaction of one or another of the s254 tests, with all that the applied test entails, including occupation by persons not forming a single household, and occupation by “those persons” as their only or main residence.
Furthermore, while we can see that Parliament is perfectly comfortable to use certain, express cross-referential wording, as in “those persons” (in 254(2)(c)) referring to the specific set of persons nominated to satisfy the conditions in the preceding paragraph 254(2)(b), I’m contrast with Art 4(a) and (b) merely referring to indefinite “persons,” the ordering also suggests to me that they are all three independent requirements to be met: paragraph (2)(c) could hardly refer back to entities established in (2)(b) unless (2)(b) which defined the notion preceded (2)(c) which references it with the referential “those.”
But in Art. 4, we see 4(c) follow 4(a), not precede it, so it hardly seems apparent to me that it 4(a) could import or embed notions independently referenced in 4(c), such as those contained in and necessary to satisfy the tests of s254.
On the other side, I would observe as you did that some authoritative upper tribunal cases have seemed to accept this, yet they don’t directly address the issue, and my best explanation for this would be that, it not having been raised by either party to the case, the tribunal likewise overlooked it.
If the Applicant takes it upon themselves to set out to prove that five people occupied the property as their main residence, thus implicitly accepting that at the requisite legal bar to meet, but then fails satisfactorily to evidence these facts to the proper standard of proof, then what place would the tribunal be in to set the (represented) Applicant a lower legal bar than they had even set for themselves, based on an obscure and seemingly novel observation on the law? It seems like even if it had addressed such an issue which wasn’t even argued by both sides, that would in itself be merely obiter, but that it is entirely silent on the issue makes it at best obiter-by-omission, which seems hardly binding at all, to me.
Case in point, we have the tribunal’s remarks on the possibility of Ms. Tseng occupying for the sake of a short course of study being not inconsistent with a number of life stories, which seems rather a bad example, because a course of study being “short” seemingly need not preclude it being full time, and the tribunal appears therefore to ignore the existence of s259.
The reason your argument hasn’t been tried is because it is wrong.
Art 4 of the 2018 reg requires (a) occupation by 5 or more people, and (b) in two or more households, and (c) meets the HA 2004 S.254(2) test (leaving s.254(3) and 254(4) out of it for simplicity, but the same applies). The HA s.254(2) test requires (b) occupation by persons who do not form a single household, and (c) that those persons occupy as only or main residence (or so deemed under s.259).
So, the 5 or more people in Art 4(a) must occupy as only or main residence to meet the s.254(2)(c) test.
As to your comments about Ms Tseng potentially falling under s.259 – maybe, but that is pointless speculation, as the whole point was that there was no evidence as to the nature of her occupation.
So are you saying that four full time students could live as a dodgy landlord’s tenants in an eight bedroom house as their sole residence, and the other four bedrooms could be occupied from Monday-Friday by commuters whose work is in the capital but who primarily (per Williams v Horsham) live (eg with their families/spouses) in other regions, while at the weekends the commuters’ four bedrooms in the subject house – are almost always all – let to weekend tourists via Airbnb, with the common toilets and cooking facilities all typically being shared between 8 people at any one time, and because the sole-resident / student occupants only number four, then absent an effective additional licensing scheme in the area, the landlord needn’t obtain a licence?
Well, absent an effective additional or selective scheme, they needn’t obtain an HMO licence?
Yes.
Well, nice and succinct. I should learn to be more like you when I grow up.
Anyway, does that not seem to you most perverse and subversive of parliamentary intent?
What about purposive construction and Nourse LJ’s “greatest importance to the good of the occupants that houses which ought to be treated as HMOs do not escape statutory control“?
No, it doesn’t seem perverse. When you consider that originally it was 5 people in a property of three or more storeys (giving rise to arguments about mezzanines and entrance lobbies), it is clear that mandatory licensing was intended to be significantly restricted. Additional and selective licensing is there to deal with other situations.