How far do managers of HMOs need to go to ‘ensure’ compliance with the Management Regulations?

Monday, October 3rd, 2022 - By Rooshan Saeed, Paralegal, Anthony Gold Solicitors

In the recent case of Adil Catering Limited v The City of Westminster Council [2022] UKUT 238 (LC), the Upper Tribunal addressed the question of what does ‘ensure’ mean in the Houses in Multiple Occupation (HMO) Management Regulations. The Tribunal was concerned with the scope of the duty imposed on the manager of an HMO by Regulation 4 and 7 of the Management of Houses in Multiple Occupation (England) Regulations 2006 (the Management Regulations).

Background

On 3 June 2020, following complaints from the tenants of the HMO owned by the appellant, Adil Catering Limited, the local housing authority, Westminster City Council, wrote to the appellant requiring it to remedy identified defects. Further, when a Council enforcement officer attended the property on 30 July 2020, he found a number of defects following which the Council imposed a financial penalty of £16,000 on the appellant pursuant to Section 249A of the Housing Act 2004 (“the 2004 Act”) which allows a local authority to impose a financial penalty on a person if it is satisfied beyond reasonable doubt (the criminal standard of proof) that the person’s conduct amounts to relevant housing offence in respect of premises in England. The offence under Section 234(3) of the 2004 Act i.e. failure to comply with the Management Regulation is one such offence.

The appellant appealed to the First-Tier Tribunal (FTT) relying on, amongst others, the defence provided under Section 234(4) of the 2004 Act according to which it is a defence if a person has reasonable excuse for failing to comply with a Management Regulation. The FTT by way of decision dated 1 October 2021, considered whether, on the evidence, the alleged breaches of the Management Regulation were made out. The FTT directed itself by way of reference to the decision in I R Management Services Limited v Salford City Council [2020] UKUT 81 (LC), at [27], that “the offence of failing to comply with the relevant regulation is one of strict liability, subject only to the statutory defence.” Thus, it decided, if relevant defects existed at the time of the inspection a breach of the Management Regulations would have occurred and, unless the appellant had a reasonable excuse, an offence would have been committed.

The FTT also considering the appellant’s defence of reasonable excuse rejected the defence as the identified defects were in the common parts and the pandemic did not justify leaving important repairs outstanding. On the final consideration of the quantum of the financial penalty, the FTT reduced the total amount payable to £15,750. The FTT granted permission to appeal to the Upper Tribunal (UT).

The Upper Tribunal’s Decision

The appeal in the UT took place before Martin Roger QC, Deputy Chamber President. The UT considered the following three issues on which the FTT gave permission to appeal:

• Whether it had been wrong to reject the landlord’s argument that the breaches had not been made out to the required standard of proof or had failed to give sufficient reasons for its conclusion on that issue.
• Whether it should have found that the defence of reasonable excuse was established.
• Whether it had failed to take account of relevant considerations when setting the penalty.

On the first question, the Counsel for the appellant argued that both the 2004 Act and the Management Regulations are concerned with the attainment of proper management of HMOs. He argued that “the Management Regulations should be interpreted with that purpose in mind, and not on the basis that they were designed to prohibit and penalise imperfection.” He further went on to argue that “the Management Regulations are not aimed at penalising HMO managers as soon as any issue arises, they are aimed at rogue landlords and at ensuring that tenants occupy properly maintained premises. When considering whether any of the Management Regulations have been breached, the focus should therefore be on whether the manager has acted appropriately and whether problems were properly addressed when they arose.” It was essentially this that allowed Counsel for the appellant to argue that the scope of the duty to “ensure” was equivalent to a duty to take reasonable care to ensure.

This duty to take reasonable care to ensure afforded a lower threshold as it did not import an absolute obligation, rather required the manager of an HMO to satisfy themselves that the HMO was properly managed. He submitted that the appellant therefore “had inspected the property regularly, had taken immediate action as and when needed, and received confirmation that the defects concerned had been seen to.” Therefore, the appellant was not required to do anything more than that as he had taken reasonable care to ensure that the HMO was properly managed. He took his argument further to critique the FTT’s approach of treating the offence of strict liability as the end point instead of a starting point in determining whether a manager had failed to ensure it complied with its obligations.

Despite the UT agreeing with Counsel for the appellant that the key issue was the meaning of word “ensure”, the UT did not seem to agree with the Landlord’s proposed interpretation of it. The UT said that the starting point in interpreting the Management Regulations is section 234(1) of the 2004 Act. The purpose of regulations made under that power is “ensuring that ‚Ķ (a) there are in place satisfactory management arrangements; and (b) satisfactory standards of management are observed.” The UT contrasted the three concerned sections of the Management Regulations to come to its conclusion. Where Regulation 4(1) requires performance of an activity such as to keep the means of escape free from obstructions, Regulation 4(4) requiring taking all measures as are reasonably required to protect occupiers, requires an outcome of a condition of safety to be achieved. Similarly, Regulation 7 requires that managers must ensure that handrails and bannisters are to be kept in good repair “at all times” and that light fittings are available “at all times”.

According to UT Judge, “that duty will clearly be breached if, at any time, the handrails are out of repair, or the light fittings are not available. Simply having a management procedure in place which involves regular inspections and prompt remediation will not prevent a breach.” Simply put, “the natural meaning of these provisions requires the achievement of an outcome or the bringing about a state of affairs.” And this is what Martin Roger QC took the word “ensure” to mean. He further said that Counsel’s interpretation would mean that all or any manager of an HMO could rely on the defence of reasonable excuse. This was not in line with the policy objective behind the Management Regulations. Therefore, the UT upholding the FTT’s decision found that existence of defects was enough in itself to prove breach of the Management Regulations to the criminal standard.

On the second question of the defence of reasonable excuse, the Tribunal found that it was for the appellant to inform itself sufficiently of the condition of the premises to enable it to take timely remedial action. The appellant failed to carry out remedial action even where it was informed of defects and was unable to rely on the excuse of pandemic as some defects predated the pandemic and during pandemic, the remedial works required did not require entry into tenanted rooms in the premises and therefore, were capable of being remedied whilst the lockdown restrictions were in place.

As to the third question, the UT simply upheld the FTT’s decision and found that a properly directed tribunal could have imposed the same penalty.

The UT dismissed the appellant’s appeal.

Conclusion

In finding that the correct interpretation of the word “ensure” means achieving an outcome or bringing about a state of affairs, the Upper Tribunal has provided the much-needed clarity in relation to the approach that should be adopted in the interpretation of the scope of duties imposed by the Management Regulations. The Tribunal has also clarified that an offence of breach of the Management Regulations will be established as soon as a failure to comply with the Management Regulations occurs and can be proved beyond reasonable doubt subject to the statutory defence of reasonable excuse. However, in this case, the Tribunal held that the manager did not have a reasonable excuse.

This case serves as an important reminder to those who manage HMOs that they need to inform themselves sufficiently of the condition of the property and take timely action to “ensure” that the HMO is properly managed, an outcome to be achieved at all times.

Rooshan Saeed is a Paralegal at Anthony Gold Solicitors. She can be contacted at rsa@anthonygold.co.uk.

Please note that the views and opinions expressed in these blogs are those of the author and do not necessarily represent the views of London Property Licensing. These blogs are designed to stimulate discussion and debate within the property industry. This article does not represent legal advice and should not be treated as such.

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