Phoebe Cottam & Ors v Lowe Management Limited
Decision date: 20 December 2023
Neutral citation: [2023] UKUT 306 (LC)
Overall AI summary confidence: high
Short overview
This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.
AI confidence in this short overview: high
This appeal concerned whether Schedule 14 to the Housing Act 2004 exempted a building from HMO licensing because the freeholder was a listed public body, and who counted as the "person having control" or "managing" the premises under section 263. The Upper Tribunal held that Schedule 14 only applies where the person who manages or has control of the property is a listed body, and that the FTT had misapplied section 263 by treating the freeholder (the CCG) as in control despite leases and receipts of occupiers' payments by others. The Tribunal allowed the appeal on that ground and remitted the case to the FTT to decide whether the respondent (or Lowe) was liable and to quantify any rent repayment order.
Ratio decidendi
This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.
AI confidence in this ratio decidendi summary: high
The correct statutory test for "person having control" under section 263 looks to who in fact receives—or as things stand would receive—the rack-rent (the practical entitlement to receive rent), not to a hypothetical notional owner who might have let at rack-rent in some imagined state; where the freeholder has granted a lease at less than rack-rent or where rent is received by a lessee or agent, the freeholder is not the "person having control" for the purposes of section 263 and Schedule 14 does not apply.
Obiter dicta
This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.
AI confidence in this obiter dicta summary: medium
The Tribunal observed that application of Schedule 14 can produce apparently anomalous regulatory outcomes, but treated that as a matter for parliamentary policy rather than judicial correction; it also noted that historical authorities support construing "person having control" by reference to current practical entitlement to receive rack-rent.