“This case is an example of the dangers of adopting a formulaic, tick box approach to the evidence necessary to prove the elements of a criminal offence to the required criminal standard. The pro-forma witness statements relied on by the appellants omitted to mention one of the critical conditions. The documents are so concise and impersonal that it is impossible to find in them any material from which to begin to form an impression of the applicants and their house mates.”
THE CASE
The applicants/appellants sought orders against the defendant for rent repayments. The applicants argued that the respondents had unlawfully let a house in multiple occupation and were liable to repay the rent.
THE EVIDENCE IN SUPPORT OF THE APPLICANTS’ CASES
The evidence that the applicants gave, however, was sparse.
15. The five appellants later filed witness statements in March 2021. The statements were very similar and give the impression of being based on a pro-forma draft addressing, each in a single sentence, the conditions required to demonstrate that the property was an HMO. Minimal additional information was inserted to provide details of the witness’s name, period of occupation, rent and other details. Only when the statement addressed matters of conduct did any detail begin to emerge.
16. The standard form of the witness statements can be illustrated by referring to the document signed by Nicolle Ducasse. I quote the relevant part in full, omitting only some brief allegations about an absence of safety precautions randomly inserted after paragraph 7.2:
“4. The property was my main residence during my occupancy.
5. I shared the property with up to 5 other occupants. We shared 3 bathroom(s) and 1 kitchen(s).
6. The occupants were from more than one family or household. In fact we were made up of 5 separate households.
7.1 I was assigned a room in the property: top floor en-suite bedroom (own bathroom for sole use).
7.2 I intended to stay at the property for at least 6 months. …
8. The property was occupied as per the Occupancy Table shown in the applicant bundle with this statement.”
17. The statement went on to provide, in rather more personal terms, an account of alleged acts of harassment. It concluded with a statement of truth.
18. The witness statements prepared by the other appellants were in more or less identical terms, except for the allegations of harassment which differed slightly.
THE DANGERS OF THIS APPROACH
On appeal the Upper Tribunal noted the problems caused by the sparse witness statements.
19. The deficiencies of this form of evidence are not difficult to see. By limiting the information provided to a bald confirmation of the statutory qualifying conditions the witness leaves many questions unanswered. What did she mean by the statement “the property was my main residence”? Did she have other residences? If so, where were they and how much time did she spend there? What was it that made this property her main residence? Similarly, the statement that “the property was occupied as per the Occupancy Table shown in the applicant bundle with this statement” begs the question whether the witness had seen that bundle or the table said to have been included in it and how she was able to confirm its contents. How would she know who lived there before or after her period of occupation?
20. More significantly, none of the appellants said anything about Kate Tseng whose name appeared in the occupation schedule but who did not provide a witness statement and was not mentioned by any of them.
THE FTT’S DECISION
The applicants were unsuccessful at first instance, primarily because of the inadequate of the evidence.
“However, the tribunal is only able to make a rent repayment order if satisfied beyond reasonable doubt that the offence under section 72(1) had been committed. In that regard the Tribunal accepts the submissions of [counsel for the respondents] that, within the period in respect of which the claim has been made in the statement of case, there were a maximum of four tenants who had provided witness statements. The Tribunal accepts counsel’s submission that it has no evidence as to the relevant status of Yung-Ru Tseng and could not therefore be satisfied that she met the necessary qualifications to permit the making of a rent repayment order.”
THE APPLICANTS’ UNSUCCESSFUL APPEAL
The appeal against this decision was unsuccessful.
34. The difficulty for the appellants in this case is that there was not a single piece of evidence directly addressing the quality of Ms Tseng’s occupation of the property or the facts relevant to it. Nothing was known about her other than that she had paid a rent for a room for a period of three months and had moved belongings into the property. Nothing was known about her personal circumstances, her age, her nationality, whether she had a family, whether she was employed, whether she had an income or received benefits, including housing benefit, how long she spent at the property during her period of residence, whether she went away at the weekends or for other periods, whether she spent the Christmas and New Year holiday period at the property, where she went when she left, and why she left. Evidence on some or all of those matters would have allowed the FTT to consider whether it was satisfied beyond reasonable doubt that she occupied the property as her only or main residence, that it was her home, in other words, and not simply a convenient temporary place to live while she spent time in London. The facts known to the FTT were not inconsistent with a number of different possible life stories. Ms Tseng might have been a student from abroad who had come to this country for a short period of study, or a person working in London but living somewhere else in the country who returned to her permanent home at the weekends or at other times when she was not working. She may have had a home elsewhere which an informed observer could have concluded was her main residence. The FTT might have felt able to exclude those possibilities if it had been told anything at all about her, but it was not.
35. This appeal is not an appeal on a point of law only. A right of appeal is available in a rent repayment case whenever a person is aggrieved by the decision of the FTT (section 53(1), 2016 Act). Nevertheless, this Tribunal’s approach to FTT decisions on issues of fact is clear. The Tribunal will only set aside a decision on an issue of fact where it was not supported by any evidence or where the decision was one which no reasonable tribunal could have reached. Mr Penny did not put his submission as high as to say that the only conclusion which the FTT could properly have arrived at was that Ms Tseng occupied the property as her only or main residence, but in my judgment any conclusion short of that extreme position would be insufficient to justify this Tribunal in interfering with the FTT’s decision.
36. No criticism can be made of the FTT’s statement that “it has no evidence as to the relevant status” of Ms Tseng. It was plainly entitled to come to that conclusion, and it was not obliged to resort to unreliable inferences. It was not saying that there was no evidence at all about her and it cannot be assumed that it overlooked that she had occupied the property between 22 December and 22 March and had paid rent for it. But it was entitled to conclude that there was no evidence bearing on the critical question of whether the property was her only or main residence. The opportunity to draw inferences favourable to the appellants was explained to the FTT in Mr Penny’s written closing submissions but, as was submitted on behalf of the respondents, the known facts were equally consistent with an inference that she had moved out of the property to return to her main home on 22 March 2020, the day before the commencement of the national coronavirus lockdown.
37. This case is an example of the dangers of adopting a formulaic, tick box approach to the evidence necessary to prove the elements of a criminal offence to the required criminal standard. The pro-forma witness statements relied on by the appellants omitted to mention one of the critical conditions. The documents are so concise and impersonal that it is impossible to find in them any material from which to begin to form an impression of the applicants and their house mates. Those of the appellants who attended the hearing before the FTT and who gave evidence were able to make good the shortcomings of their written statements, but nobody seems to have noticed the need for evidence concerning the quality of the occupation of those who were not giving evidence, but proof of whose status was essential. One of the necessary elements of the offence was simply not addressed. The appellants would have been better advised to state the facts relevant to their occupation of the property in their own words and to explain what they knew of the others who were not going to be called to give evidence. Had they done so the outcome of the application might have been very different. As it is, I dismiss their appeal.
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