Proving your HMO case in the First- tier Tribunal – Rent Repayment Orders

This is the final instalment in a series of blogposts exploring recent Upper Tribunal decisions dealing with HMO matters and evidence. The first post looked at the case of Hastings v Turner  where the Upper Tribunal was asked to consider which party had the evidential burden of proving whether or not a property was an HMO. The second post examined the financial penalty case of IR Management v Salford City Council and which party was responsible for proving the statutory defence of reasonable excuse. This final blogpost, which coincides with Anthony Gold’s Rent Repayment Order week, will look at the criminal standard of proof, this time exploring two Rent Repayment Order decisions.

In addition to local authority prosecutions and financial penalty notices, tenants and local authorities can also apply for Rent Repayment Orders (RROs) against landlords who commit failure to license offences (and other housing related offences). My colleague Tamanna Begum has produced a very useful three-part guide on RRO applications which you can read here.

In order to make an RRO the Tribunal has to be satisfied “beyond reasonable doubt” that the offence has been committed. This is the legal standard of proof for criminal cases that requires the judge (or in some cases the jury) “to be sure” of a person’s guilt before they can convict. The same standard of proof applies in RRO claims and other HMO cases where the Tribunal has to determine whether an offence has been committed.

The Upper Tribunal has heard two RRO appeals this year where they have looked at the criminal standard of proof: Opara v Olasemo [2020] UKUT 96 (LC) and Mortimer & Barchan v Calcagno [UKUT] 0122 (LC). The decisions provide helpful commentary on how the Tribunal should approach these claims and the evidence required from applicants to prove their case.

Opara v Olasemo

In this first case, the tenant, Mr Opara, had applied to the FTT for an RRO against his landlord on the basis of unlawful eviction and failure to license offences.The FTT reluctantly refused to make an RRO because it was not satisfied to the criminal standard of proof that Mr Opara’s landlord had committed the offences.

With regards to the HMO offence, the FTT decided that it was not satisfied that the property was an HMO because they had doubts that the other occupiers lived at the property as their only or main residence (one of the requirements under the statutory definition of an HMO). In relation to the unlawful eviction offence, while the FTT concluded that it would have been satisfied that the offence had been committed on the balance of probabilities, the lower civil standard of proof, they had some doubts preventing them from being satisfied that the offence had been committed beyond reasonable doubt. They therefore declined to make an RRO.

Mr Opara appealed to the Upper Tribunal arguing that on the evidence before the Tribunal, it could not have failed to be satisfied that the offences had been committed to the criminal standard. Witness statements had been produced by Mr Opara and Ms Olasemo as well as the local authority’s environmental health officer and a decorator. Both parties had attended an oral hearing and had their evidence tested through cross-examination.

The Upper Tribunal allowed the appeal. Judge Elizabeth Cook concluded that Mr Opara’s evidence was strong enough to show that the other residents lived at the property as their home and this part of offence must, to some degree, be a matter of inference from the circumstances.  Judge Cook also found that the evidence was strong enough to prove beyond reasonable doubt that the landlord had committed the unlawful eviction offence.

In her concluding comments, Judge Cook made the following observation to assist tribunals in dealing with cases involving criminal offences:

“ The FTT in its decision in this case was, I think, over-cautious about making inferences from evidence. For a matter to be proved to the criminal standard it must be proved “beyond reasonable doubt”; it does not have to be proved “beyond any doubt at all”. At the start of a criminal trial the judge warns the jury not to speculate about evidence that they have not heard, but also tells them that it is permissible for them to draw inferences from the evidence that they accept. In this case there were obvious inferences to be drawn from the evidence, both about the eviction and about the circumstances of the other tenants. It may be that the FTT lost sight of those inferences and set the bar of proof too high. I say that in the hope that it is of assistance for the future.”

The important point in this decision is that proving a fact beyond reasonable doubt does not require ‘cast-iron certainty.’ The Tribunal can draw inferences in the same way a jury can in other criminal cases. It is for the tenant or local authority seeking the RRO to prove the offence beyond reasonable doubt but they cannot be expected, and are not required, to prove the case beyond all doubt at all.

Mortimer & Barchan v Calcagno

Not long after Opara, the Upper Tribunal heard another RRO appeal: Mortimer & Barchan v Calcagno. In this case, two tenants applied for an RRO on the basis of their landlord’s failure to obtain an HMO licence. Again, the FTT declined to make an RRO on the basis that the tenants had failed to prove their case to the criminal standard.

The factual issue in dispute in this case was the number of people occupying the property. The tenants argued that the property met the definition of an HMO because it was occupied by four persons in two or more households and required a licence under the local authority’s additional licensing scheme. The landlord argued that the tenants had failed to prove to the criminal standard that the property was occupied by more than two persons making it an HMO.

Only one tenant attended the FTT hearing to give oral evidence and be cross-examined. By way of documentary evidence, the tenants produced three tenancy agreements, their own, and one from another occupier. Judge Elizabeth Cook acknowledged that the absence of evidence from one or more tenants of an HMO need not be fatal to the claim but in this case the tenant who gave live evidence at the hearing was not able to give sufficient detail of the other tenants and their dates of occupation to evidence the offence beyond reasonable doubt. On the evidential issues, the Upper Tribunal agreed with the FTT that the tenants had not proved their case to the criminal standard of proof and dismissed the tenants’ appeal.

Judge Cook concluded that unlike Opara v Olasemo this was not a case where the Tribunal had set the criminal standard of proof too high. The applicants had simply not produced the required evidence to discharge the burden of proof as the Tribunal had been left in doubt about the occupation of the property.

What can we learn from these cases?

These two cases highlight the care that needs to go into evidencing cases where there are disputes of facts relating to the offence, particularly where these concern the property’s occupation and not all the occupants are willing or able to give evidence or be involved in the RRO claim. As acknowledged by the Upper Tribunal, the absence of evidence from one or more tenants may not be fatal and the Tribunal is able to draw inferences from the other evidence before it. However, where elements of the offence are disputed, the applicant’s written evidence alone, even where it is backed up by documentary evidence may not be sufficient to discharge the burden of proof. To have the best chances of successfully proving their case, the parties should attend the hearing to give oral evidence and be cross-examined as this live testimony could provide the evidence needed to satisfy the Tribunal beyond reasonable doubt.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*