Paul Fashade v Mailna Albustin & Ors
Decision date: 7 February 2023
Neutral citation: [2023] UKUT 40 (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 rent repayment orders made after Mr Fashade's HMO remained unlicensed between 13 August 2020 and 13 January 2022. The Upper Tribunal found the First-tier Tribunal erred by (a) failing properly to treat evidence that a licence application/renewal had been made during the claimed period (and so by misapplying the s.72(4)/(5) defences) and (b) by calculating quantum without assessing seriousness, mitigation or making findings about landlord/agent conduct. The FTT decision was set aside and the cases remitted to a differently constituted FTT for redetermination; the UT also reduced the award to Albustin & Taylor by about three months on the evidence before it.
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
Where evidence shows an application for an HMO licence was made within the claimed period, the s.72(4)(b) defence takes effect from that date and must be considered by the tribunal; and tribunals making rent repayment orders must assess the seriousness of the offence and the parties' conduct (and any mitigation) rather than simply treating the full rent as the starting point.
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 suggested (obiter) that evidence of unsuccessful attempts to use an online portal or automated responses will generally be insufficient, without precise timing or follow-up, to establish a reasonable excuse for managing an unlicensed HMO; and that when parties are unrepresented tribunals should identify and consider statutory defences suggested by the factual material.