A number of local authority decisions relating to houses in multiple occupation (HMOs) including enforcement of HMO offences can be appealed to the First-tier Tribunal (Property Chamber). This is one of the chambers of the Tribunal system in England that deals with housing matters including property licence appeals, financial penalty appeals and rent repayment order (RRO) applications.

Financial penalties were introduced in the Housing and Planning Act 2016 as an alternative to prosecution of housing offences. The same Act extended the circumstances in which RROs can be made. This has led to a large increase in HMO cases being heard by the First-tier Tribunal including cases where the Tribunal has to decide whether a criminal offence has been committed. This has also resulted in more HMO cases coming before the Upper Tribunal. The Upper Tribunal is a court of record that generally hears appeals on points of law. Its decisions are authoritative and bind the First-tier Tribunal.

In several recent HMO cases the Upper Tribunal has been asked to consider evidential issues including which party has the ‘burden of proof’ and what is the required ‘standard of proof’. That is essentially, which party has the responsibility for proving the facts of the case, and does the party have to prove their case to the criminal standard of proof, “beyond reasonable doubt,” or to the lower civil standard of proof “on the balance of probabilities”?

This is part 1 of a series of blogposts that examines three recent Upper Tribunal decisions concerning HMO matters and evidence. The blogposts will examine what parties can learn from these decisions that will assist them with preparing and proving their case in the Tribunal.

Hastings v Turner [2020] UKUT 0184 (LC)

The first case, Hastings Borough Council v Turner, concerned an HMO licence appeal. In this case, the Upper Tribunal was asked to consider which party had the evidential burden of proving whether or not the property was an HMO.

The case started as an appeal by Ms Turner, a joint freeholder and leaseholder of the property, against the local authority’s decision to grant an HMO licence. The local authority concluded that the property required a licence because it was an HMO pursuant to s257 Housing Act 2004 which applies to a building which has been converted into and consists of self-contained flats. Under this test, these properties are HMOs if building work undertaken in connection with the conversion did not comply with the appropriate building standards, and still does not, and less than two-thirds of the self-contained flats are owner-occupied. The local authority can direct that ‘s257 HMOs’ are licensable under an additional licensing designation.

The First-tier Tribunal concluded that the local authority had been unable to prove the property met the s257 definition and the licence should be revoked. The local authority appealed to the Upper Tribunal and its appeal was successful. In her decision, Judge Elizabeth Cooke, confirmed that the First-tier Tribunal had fallen into error when it had said that it was for the local authority to prove the property was an HMO. In fact, as it was Ms Turner’s appeal against the grant of the licence, the burden of proof fell on her to prove that the property did not fall within the definition of a s257 HMO. As Ms Turner had failed to produce evidence that the building complied with the required building regulations and was not a s257 HMO, the Upper Tribunal substituted its own decision and held that the property was an HMO which required a licence.

This case is important as the Upper Tribunal rejected the argument that it was for the local authority to prove that a property fell within the definition of an HMO. Instead, the burden fell on the applicant because it was her appeal against the grant of the licence. Ms Turner’s appeal failed because she did not produce evidence to demonstrate that the building met the standard required by the relevant building regulations. In cases where specialist knowledge is required beyond the applicant’s own expertise, for example, to prove that a property complies with building regulations, a report from an expert surveyor is likely to be required in order for the applicant to discharge the burden of proof.

The applicant will not always have the burden of proof and it will depend on the type of case. In cases involving HMO offences, for example, financial penalty appeals and rent repayment order applications, the burden will fall on the person seeking to prove the offence. In those types of cases it will usually be for the local authority (or the tenant in RRO cases) to prove whether or not a property is an HMO in order to satisfy the Tribunal that an offence has been committed.