Refusal of mandatory HMO licence overturned on appeal
In Spring 2020, I was approached by a private landlord for advice. He was renting out a two storey House in Multiple Occupation (HMO) that required a mandatory HMO licence. He wanted to achieve compliance and had submitted an HMO licence application in May 2019.
In late February 2020, the council phoned the landlord to arrange a short notice inspection. He explained he was away from home as a close relative was seriously ill in hospital. He asked if the inspection could be delayed until he returned, possibly a week or two later. The council officer was unwilling to countenance a delay and subsequently refused the HMO licence application.
At first glance, it seemed a rather unusual case. HMO licence refusals are few and far between and so I thought there must be more substance to the council’s decision. I agreed to undertake a case review, examine all the paperwork and offer professional advice in my capacity as a Chartered Environmental Health Practitioner.
Case review to establish the facts
A desktop case review confirmed the facts. The landlord had hand delivered his HMO licence application to the council office in May 2019 and paid the application fee at the same time.
I discovered the council had sent an email to the landlord a week or so later requesting some supporting documents. For whatever reason, the email was missed by the landlord, no reply was sent and the council sent no reminder emails or letters. The landlord thought the council were processing his application and he was waiting for them to reply.
About nine months later, a council officer phoned the landlord on a Friday afternoon demanding access to inspect the property the following Tuesday. The landlord explained he was away dealing with a family emergency but was happy to arrange access when he got back.
Shortly after the phone call, the council officer sent an email to the landlord demanding supporting documents and the licence fee payment by the next working day. He also insisted that the inspection took place the following Tuesday. With the landlord away, he did not pick up the email until sometime later. The council later accepted the landlord had paid the full application fee when he applied for the licence.
Meanwhile, the council officer visited the property the following Tuesday but could not gain access. He phoned the landlord from outside the house. The landlord again explained he was away and could schedule an appointment on his return.
With great sadness, the landlord’s close relative passed away. The landlord and his partner returned home a week or so later.
On returning home, the landlord opened the post to find a notice of intention to refuse his HMO licence application. It was served two days after the failed access inspection.
The landlord submitted his own representation, explaining he was happy to meet with the council officer, provide whatever documents they wanted and schedule an inspection.
No reply was received to the representation. Instead, a licence refusal notice was issued by the council and I was instructed to assist the landlord.
Grounds for refusing the HMO licence
The licence refusal notice set out just two grounds for refusing the HMO licence application:
- That the landlord had failed to make a valid licence application.
- That the council could not establish whether the house was reasonably suitable for occupation as no access was granted.
Taking these grounds in turn, the council can only refuse a licence application that has been made. If a valid application has not been made, then there is no application to refuse. In those circumstances, a council could reject an incomplete application, or explain the application will be rejected if essential information is not provided by a certain date.
Secondly, to refuse a licence application because the landlord was unavailable for one inspection with just two day’s notice seems very harsh and somewhat overzealous. The landlord had offered to arrange access before the licence was refused, but the council declined the offer. In my experience, many HMO licence applications are determined without inspecting the property.
These were the only two reasons given.
Early negotiation proved unsuccessful
Having completed a case review, this seemed a quick and simple case to resolve. The landlord wanted the council to process his licence application. He was willing to facilitate an inspection and provide any outstanding documentation.
With that in mind, I reached out to the council, explained about the family bereavement and asked that they adopt a fair and pragmatic approach. I requested the council withdraw the licence refusal and process the application, thereby avoiding the need for an appeal.
Unfortunately, the council were unwilling to withdraw the licence refusal notice. Instead, they suggested the landlord should submit a new application. This suggestion was not acceptable to the landlord and so an appeal was lodged with the First-tier Tribunal.
Appeal lodged against HMO licence refusal
Following submission of the appeal, further attempts were made to resolve the matter by negotiating directly with the council’s solicitor. This proved more fruitful.
On request, the council provided a list of all supporting documents they required to process the application. A full suite of documentation was sent to the council within a few days.
With no other issues outstanding, the appeal was settled by way of a Consent Order in August 2020. The council agreed to withdraw their HMO licence refusal and process the original licence application, thereby avoiding the need for an appeal hearing.
Having recently spoken to the landlord (April 2021), he told me his HMO licence was recently granted, approximately two years after he first applied.
For landlords and agents, this case demonstrates the importance of studying all correspondence from the council and responding promptly to any requests for information. Incomplete licence applications can be rejected. Unreasonable decisions can also be challenged.
For councils, this case demonstrates the importance of adopting a fair and pragmatic approach that will stand up to scrutiny before the Tribunal. It is perhaps a good example of how not to process licence applications. As the case was settled through negotiation, I won’t name the council involved.
The author of this blog, Richard Tacagni MCIEH CEnvH, is Managing Director of London Property Licensing and acted as the landlord’s representative. He can be contacted here.
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.
For all the latest news and comment, you can sign up for the free London Property Licensing newsletter here.