Where an employer has unreasonably failed to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures, an Employment Tribunal (ET) may uplift an award of compensation by up to 25 per cent, as a recent case demonstrates ( Smith v Amadeo...
A couple who let out a house in multiple occupation (HMO) have defeated an application for a rent repayment order under Section 41 of the Housing and Planning Act 2016 on the basis that they had a reasonable excuse for failing to license the property as an HMO.
The tenants had applied to the First-tier Tribunal (FTT) for repayment of £19,474 in rent, asserting that the landlords had committed an offence under Section 95(1) of the Housing Act 2004 in failing to license the property. The FTT considered as preliminary issues whether the tenants' application was out of time and whether the landlords had a defence of reasonable excuse.
It was common ground that the application was in time if it was made when it was sent to the FTT, but out of time if it was made when the tenants paid the application fee some weeks later. The FTT noted a previous decision of the Upper Tribunal that proceedings are started by sending an application notice to the FTT, whether or not the fee is paid at the same time. The application was therefore in time.
With regard to whether the landlords had a reasonable excuse, the FTT found that the landlords had previously had a valid licence. They had contacted the local authority on two occasions to enquire about licensing requirements: on the second occasion, they had been told that a new licensing scheme was not yet in place and that the local authority would write to them when it came into force. Subsequently, one of the couple had regularly travelled to Bulgaria to visit her mother when she became ill, and to deal with her estate after she passed away, while the other looked after their two children. Both were also working full time.
After being contacted by the local authority, they applied for a licence and believed they had paid the relevant fee. It was only more than 18 months later, when one of the tenants informed them that she had received an email from the local authority about the property not having a valid licence, that they realised the fee payment had not gone through. They resubmitted the application and paid the fee that same day.
The FTT observed that it was not a case where no steps had been taken to apply for a licence due to a family emergency, but one where the landlords had mistakenly thought the application had been made. In the unusual circumstances of the case, the FTT found that the couple had a reasonable excuse.