HMO: proactively policing compliance with mandatory licensing conditions

Section 90(4) of the Housing Act 2004 imposes mandatory standard licensing conditions that must be incorporated into the licences of landlords with houses in multiple occupation that are subject to the licensing regime.   Paragraph 1(2) of schedule 4 imposes a mandatory condition that the licence-holder for an HMO which benefits from a supply of gas must provide to the relevant local housing authority, annually, a gas safety certificate obtained in respect of the house within the last 12 months. In Maharaj v Liverpool City Council [2022] UKUT 140 (LC), the Upper Tribunal (Lands Chamber) signalled that local housing authorities should put proper checks in place to police this condition as it will have a bearing on the date the authority is deemed to have “sufficient evidence” to impose a financial penalty under section 249A(6) and paragraph 2(1) of schedule 13A.  The appellant was a professional landlord and the owner of a property in Liverpool. On 1 April 2015, the respondent local housing authority designated the entire city as being subject to selective licensing. The appellant obtained an HMO licence for his property on 4 July 2017.   The appellant’s property benefited from a supply of gas, and therefore the mandatory condition set out in paragraph 1(2) of schedule 4 was incorporated into his HMO licence, as condition 1.2, which provided that the “… licence holder is to provide… to the local authority annually, a valid gas safety certificate obtained in respect of the property within the last 12 months (the first certificate must be provided within 12 months of the licence grant date, and every 12 months thereafter)”.  Pursuant to section 95(2), a licensee commits an offence if he fails to comply with any condition of a licence. As an alternative to prosecution, an authority can impose a fine under section 249A. Paragraph 2(1) of schedule 13A provides that the authority must give the licensee notice of its intention to impose a fine before the end of the period of six months beginning with the first day on which it had “sufficient evidence” of the conduct to which the financial penalty related.  On 8 November 2019, the respondent issued the appellant with a notice of intent to issue fines for breaches of his licence, including condition 1.2. A final notice was subsequently issued. It was alleged by the respondent that the appellant was guilty of failing to produce a copy of a valid gas safety certificate by 13 June 2019, when requested to do so by the respondent’s officer on 5 June 2019. The appellant appealed.   The FTT found that the appellant was guilty of the offence of failing “… to supply a gas safety certificate for the year ending 4 July 2018 within the time limit required by the licence condition 1.2”. The appellant argued that the FTT had erred in finding that a breach of condition 1.2 had occurred. The UT agreed. The offence that the FTT found the appellant to have committed was different to that stated in the notice of intent and the final notice. The offences set out in those notices should not have been regarded as merely setting out a factual background to the offence, but providing the actual particulars of the offence committed.  Relying on Pinto v Welwyn Hatfield Borough Council [2022] UKUT 047 (LC); [2022] PLSCS 42, the UT found that if the respondent had been guilty of failing to provide a gas safety certificate by 4 July 2018, the respondent would have had “sufficient evidence” to impose a financial penalty by 4 January 2019, when the six-month time limit expired. The notice of intent served on 18 November 2019 was out of time.   Condition 1.2 was a mandatory standard condition and the respondent should have properly policed the same. The UT found this could have been readily done by the respondent diarising the relevant dates that the gas certificate was due to be submitted on its database.  Elizabeth Dwomoh is a barrister at Lamb Chambers