Nonyelu Chukwudozie Okoye v Leena Zachariah & Anor

This appeal is against a decision of the First-tier Tribunal, Property Chamber (the FTT) under section 40 of the Housing and Planning Act 2016 by which it ordered the appellant, Mr Nonyelu Okoye, to repay rent of £8,844.95 to the respondents, Leena Zachariah and Simon Raju whom the FTT found had been his tenants of a flat at 1a Orpington Gardens in Edmonton. The offence in respect of which the FTT made the order was the offence under section 95(1), Housing Act 2004, of having control of or managing a house which is required to be licensed under Part 3 of the 2004 Act but which is not so licensed.

Mr Okoye appeals against the decision with the permission of this Tribunal on two grounds. First, he says that the FTT was wrong to find that he was the landlord of the property, which belonged not to him but to his wife, and that no rent repayment order can be made against a person who is not the tenant’s immediate landlord. Secondly, he says that the FTT was wrong not to accept that he had a reasonable excuse for having control of the flat without the required licence, because when his wife attempted to obtain a licence using the local housing authority’s online licensing portal she was unable to do so for a period of more than four months as the portal did not recognise the address of the property and rejected her application.

At the hearing of the appeal, Mr Okoye represented himself. Ms Zachariah and Mr Raju were represented by James Cairns of the advocacy organisation Justice for Tenants.

Part 3 of the Housing Act 2004 enables local housing authorities to designate selective licensing areas in which houses let in the private residential sector must be licensed. By section 95(1), 2004 Act, a person commits an offence if he is a person having control of or managing a house which is required to be licensed under Part 3 but is not so licensed. Two relevant statutory defences are provided for. By section 95(3)(b) it is a defence that an application for a licence has been “duly made” and remains effective (i.e. it has not yet been determined). By section 95(4) it is also a defence that the person having control of or managing the house without a licence had a reasonable excuse for doing so.

By section 263(1), 2004 Act, a person has control of a house, for the purpose of the offence under section 95, if they are the person who receives the rack rent of the premises, or who would do if the premises were let at a rack rent.

Provision is made for rent repayment orders by Chapter 4 of Part 2 of the Housing and Planning Act 2016. Section 40(2) explains that “a rent repayment order is an order requiring the landlord under a tenancy of housing in England” to repay an amount of rent paid by a tenant. By section 43(1), an order may be made where the FTT is satisfied beyond reasonable doubt that a landlord has committed an offence to which the Chapter applies. The table in section 40(3) of offences to which the Chapter applies includes the offence, contrary to section 95(1), 2004 Act, of being in control of an unlicensed house.

By section 41(2) of the 2016 Act a tenant may apply for a rent repayment order only if the offence was committed in the period of 12 months ending with the date on which the application is made.

The Supreme Court confirmed in Rakusen v Jepsen [2023] UKSC 9, that the reference to a “landlord” in Chapter 4 means the immediate landlord by whom the property was let to the tenant seeking the rent repayment order.

The FTT made few express findings of fact, but the following facts are either uncontroversial or are taken from its decision.

Mrs Isobel Okoye, Mr Okoye’s wife, became the registered proprietor of 1 Orpington Gardens in 2003 and she and her husband occupied it as their family home. In its original configuration the property was a terraced house on two storeys.

In 2016 Mrs Okoye emigrated to Canada. Mr Okoye spent much of his time in Nigeria, where he had responsibilities as a church pastor. In 2018 1 Orpington Gardens was subdivided to create two flats, with the intention that the upper flat would be retained for use by Mr Okoye when he was in London while the ground floor flat would be let.

The division of the building into two separate flats required approval under the Building Regulations 2010, which was provided by the building control department of the local authority, the London Borough of Enfield (the Authority). On 29 June 2019 the Authority issued a building control certificate to Mr Okoye, certifying that work had been carried out in compliance with the Building Regulations. The certificate was incomplete in that section 2, which should have described the works which had been carried out, was left blank. As a result, someone reading the certificate would be unaware that the building had been divided into two separate flats.

On 1 September 2021 the Authority introduced a selective licensing scheme under Part 3 of the Housing Act 2004. 1 Orpington Gardens was included in the area covered by the scheme.

Mrs Okoye was in Canada when the scheme was introduced. In his evidence to the FTT Mr Okoye said that he spent the period from 2021 to 2023 in Nigeria, making occasional visits to his wife in Canada.

On 1 March 2022 Ms Zachariah and Mr Raju became tenants of the ground floor flat at 1 Orpington Gardens, which was referred to as No. 1a. The tenancy continued until 30 January 2023, when the couple moved out. They subsequently applied to the FTT for a rent repayment order on 28 January 2024.

The letting of No.1a Orpington Gardens was arranged through a letting agent by Mr and Mrs Okoye’s daughter. In his witness statement Mr Okoye said this about the letting:

When they applied to the FTT for a rent repayment order, Ms Zachariah and Mr Raju included a copy of an unsigned draft tenancy agreement dated 1 March 2022. The document is in a standard form for an assured shorthold tenancy agreement and names Mr Okoye as the landlord, and Ms Zachariah and Mr Raju. It specified his address for service as 1 Orpington Gardens and included a telephone number and email address for contact. The email address was that of Mr Okoye’s daughter Ona, and he told me during the hearing that the telephone number was also hers.

Mr Okoye referred to the tenancy agreement in his witness statement without suggesting that there was anything unusual or untoward about it. He acknowledged that the rent payable under the tenancy was paid to him and he provided details of the cost of utilities and copies of bills. These demonstrated that some household accounts, particularly for water, were in Mr Okoye’s name, while others, including gas and electricity, were in the name of Mrs Okoye.

By the beginning of September 2023 the upper flat at 1 Orpington Gardens was also let and the Authority had become aware that unlicensed letting was occurring. There is no evidence of how it became aware, but on 6 September Mrs Okoye received an email from Mr Donald, one of the Authority’s licensing and enforcement officers, requiring her to make an application for a licence within 14 days. She responded on 23 September requesting additional time to obtain the various documents which were required to accompany a licence application. Mr Donald agreed to allow her until 30 September.

On 27 September Mrs Okoye sent an email to the address of the Authority’s private rented sector department stating that she had become aware that 1a Orpington Gardens was not “in the system” and asking that it be added so that she could complete her Licensing application. On 30 September she provided a fuller account of what had happened to Mr Khan, one of the Authority’s compliance and enforcement officers. She explained that she had successfully submitted her application for 1 Orpington Gardens (the upper floor flat) using the Authority’s online portal and had attempted to do so for No.1a, the ground floor flat, “but there’s no record of that address in the Enfield Council portal”. She had spoken to two of the Authority’s staff and at their request had sent an email explaining that the address of her property was missing from the Authority’s records. She had been assured “that the missing address will be added to the system shortly” but that had not yet happened. Mr Khan responded on 6 October with the message: “I will have it looked at and come back to you when I know more”.

Mr Okoye gave evidence in his witness statement that he had made several calls to the Authority in connection with the licence application and had been told that there was nothing that could be done until the address had been added to the database and the Mrs Okoye would be notified when that had been done. The FTT made no finding about that evidence, but it is consistent with the emails which had already passed between Mrs Okoye and the Authority’s officers.

At the hearing before the FTT, which Mr Okoye attended in person, he raised a number of arguments for the first time. These included the assertion that he was not the applicants’ landlord, but that his wife was. The FTT described this as a “transparent attempt to muddy the waters” and said that it could be “rapidly disposed of as an issue”, which it did as follows at paragraph 28 of its decision:

This reasoning was supplemented at paragraph [31] by reference to Mr Okoye’s witness statement in which he had said that he had engaged the letting agent, and by comments he had made at the hearing to the effect that he had decided that he would not renew the tenancy.

The FTT dealt at greater length with Mr Okoye’s defence of reasonable excuse. It dismissed his reliance on the failure of the letting agent to mention the need for a licence, and the mere fact that he was unaware of the requirement, and neither of those is now separately relied on. It then considered the evidence about the licensing portal’s failure to recognise the address of No.1a. Mr Okoye had given evidence that he had been informed in 2018 that the new property would be added to the Council’s database within two months of the Authority issuing the building control certificate, but the FTT said that this advice was not evidenced in any document and that, in the absence of a written record, it was not credible that Mr Okoye “might remember such a precise timeframe”.

The FTT then pointed out that the date on which a valid application was made was important, or a reasonable defence could be shown, because the application for a rent repayment order would fail if it was made more than 12 months after the offence ceased to be committed. It then dismissed the defence on the following grounds:

The grounds of appeal are as set out at paragraph 2 above. Mr Okoye challenges the FTT’s finding that he was the landlord under the tenancy. If that ground of appeal fails then, on the assumption that he was the landlord, he challenges the FTT’s treatment of his defence of reasonable excuse.

The right of appeal against a rent repayment order under section 53(1) of the Housing and Planning Act 2016 is not restricted to points of law and it is open to a person aggrieved by a decision of the FTT to challenge its findings of fact. Such an appeal is always difficult, for reasons explained in a well-known passage from the judgment of Lewison LJ in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, at [114]. As a result of these restrictions, this Tribunal will only interfere with the FTT’s findings of fact if its findings were unsupported by evidence, or if its conclusion was one which no reasonable tribunal could have reached.

Although the FTT’s treatment of this issue might appear peremptory and lacking in analysis, I have no doubt that its conclusion was properly open to it on the very limited evidence put before it. There was obviously a tenancy and the only question was whether Mr Okoye or someone else was the landlord. The evidence on that issue began with the undisputed fact that the respondents had paid their rent into Mr Okoye’s bank account. It continued with the fact that a letting agent whom Mr Okoye had engaged had prepared a draft tenancy agreement naming Mr Okoye as the landlord and providing his daughter’s contact details, which invited the obvious inference that both Mr Okoye and his daughter who was liaising with the agent on his behalf, intended that he was to be the landlord. There was no evidence of any arrangement between Mrs Okoye and her husband that he was to act as her agent in arranging the letting. And there Mr Okoye did not challenge the suggestion that he was the landlord until the hearing itself.

The FTT was not helped by the parties. Those who prepared the applicants’ case were aware that the property belonged to Mrs Okoye, and not to her husband, and they provided a copy of the land certificate to demonstrate that fact. Yet they failed to deal with the potential significance of this fact in their evidence or submissions. No evidence was adduced about the circumstances of the letting and the only document relied on was the unsigned draft tenancy agreement. It would have been a simple matter to ask the respondents to explain the circumstances in which the letting had taken place and to say what, if anything, they had been told by the letting agent and whether any copy of the draft agreement had been signed.

Mr Okoye was equally unforthcoming in the evidence he gave to the FTT. In his written evidence he did not challenge the proposition that he was the respondents’ landlord and referred to the draft agreement as if it governed his relationship with them. At the hearing he attempted to explain arrangements which he had no direct part in making and which had been delegated to his daughter, who did not give evidence.

The FTT appears to have elided two distinct matters which needed to be established and which should have been kept apart. A rent repayment order could only be made against the landlord, so it was necessary for the FTT to be satisfied that Mr Okoye was the landlord. Additionally, the FTT also had to be satisfied that an offence had been committed, which required that it be proven that the person having control of the property had failed to obtain a licence for an offence. The person having control of the property may or may not be the landlord and by reason of his receipt of the rent Mr Okoye would have had control even if his wife was the landlord and he was acting as agent for his wife.

Faced with the evidence which had originally been undisputed and which justified the inference that Mr Okoye was acting on his own behalf in the capacity of landlord, and given his very late change of tack during the hearing, the FTT was entitled in my judgment to find that Mr Okoye was the landlord. Cases in this Tribunal and the Court of Appeal demonstrate that it is far from unknown for one of a married couple to let jointly owned property in their sole name, or to let property belonging to the other in their own name (Cabo v Dezotti [2022] UKUT 240 (LC), upheld on appeal [2024] EWCA 1358; Shorr v London Borough of Camden [2024] UKUT 202 (LC)). In the absence of any explanation why the letting appeared to be in Mr Okoye’s name the FTT was entitled to find that the explanation was that he was letting on his own behalf as landlord.

I should add that, at the hearing of the appeal, Mr Okoye conveyed an explanation of the circumstances in which the unexecuted tenancy agreement had come to be prepared which he said he had been given by his daughter after the FTT had made its decision. He gave no reason why that explanation could not have been given to the FTT at the original hearing. It is by no mean inevitable that it would have been accepted as accurate, or, if it had been, that it would have made any difference to the outcome. In any event, the FTT was not asked to consider it and its decision cannot be interfered with on the basis of a version of the facts which was presented for the first time at the appeal.

I therefore dismiss the appeal on ground 1.

There is no challenge to the FTT’s findings that the section 95(1) offence was committed from the commencement of the letting on 1 March 2022, nor its dismissal of Mr Okoye’s reliance on his lack of knowledge of the need to obtain a licence. The issue is whether the FTT was entitled to conclude that the events which occurred after 27 September 2022 on which Mr Okoye relied did not amount to a reasonable excuse for his being in control of No.1a while it was both let and unlicensed. In considering that question it is not for me to reevaluate the facts and substitute my own view of whether the excuse offered is reasonable. I can only do that if I am satisfied that the FTT’s approach was mistaken.

Although in his argument on behalf of the respondents Mr Cairns submitted that the FTT was entitled to find that Mr Okoye had failed to prove a reasonable excuse, there was no dispute about the primary facts, at least insofar as they concern events after 27 September 2022.

In view of the FTT’s finding that Mr Okoye was the landlord, Mrs Okoye must be taken to have been acting on his behalf in her dealings with the Authority, rather than on her own behalf. On that basis the facts on which Mr Okoye relies are, first and foremost, that an attempt was made to apply for a licence on 27 September which failed because the Authority’s portal would not accept the application because it did not recognise the address in respect of which it was made. The significance of that fact, in terms of causation, can be seen by comparing the outcome of the two applications Mrs Okoye attempted to make on that day. Her applicant in respect of 1 Orpington Gardens was successfully submitted, but her application in respect of No.1a was rejected because, it would appear, the online portal did not recognise the address. There seems to be no reason to doubt that if the portal had been prepared to accept an application for No.1a on 27 September, the offence would have ceased to be committed on that date.

I asked Mr Cairns whether it was the respondents’ case that there was something which Mr or Mrs Okoye could or should have done after 27 September 2022 which they did not do. He confirmed that it was not. The respondents’ case, which the FTT accepted, was that Mr Okoye was culpable for the fact that the online portal would not accept an application in respect of No.1a Orpington Gardens.

In paragraph [51] of its decision the FTT began its explanation of why it rejected the excuse offered by describing the fact that the address of No.1a was not recognised by the Authority’s portal as a “lawful impediment” to the making of an application. I do not know what the FTT meant by that expression, nor do I see why the “legality” of the impediment is relevant. The important fact, which the FTT appears to have accepted, is that an attempt was made to apply for a licence but that the application could not be completed because the Authority’s online portal was configured to reject applications from addresses which were not already on its database. It is common for local housing authorities to insist that applications be made using an online portal, but the configuration of that portal is a matter entirely within the control of the authority. I am not aware of any regulation or statute governing the way in which information is received by local authorities and to describe the difficulty encountered in this case as a “lawful” impediment was an irrelevant distraction from the question the FTT had to answer.

The FTT then attributed blame to Mr Okoye for the rejection of the licensing application. It was “the natural consequences of the respondent’s own failures to act previously”. The supposed failure was a failure to ensure that the Authority was aware of the existence of No.1a as a separate unit of occupation. But the FTT did not identify any obligation which Mr Okoye or his wife were under to ensure that their property was brought to the Authority’s attention. Nor was Mr Cairns able to identify any relevant duty which they might be thought to have breached.

The implication from paragraph [51] of the decision is that the FTT considered that an owner of property who subdivides it into two units of occupation is under a duty to ensure that both units are entered on the lists maintained for Council Tax or non-domestic rating. If so, that would appear to have been a misunderstanding. Under section 22 of the Local Government Finance Act 1992 the duty to maintain a valuation list for the purpose of Council Tax is the duty of the listing officer appointed for each billing authority by the Commissioners of the Inland Revenue. New lists are compiled annually and the 1992 Act contains procedures for bringing new property into the list (section 17) and allowing valuation officers to obtain information by serving notice on the owner or occupier of any dwelling (section 27). There has been no suggestion that any such notice was ever served on Mr or Mrs Okoye.

The evidence does not show conclusively whether No.1a is or was at the material time separately entered in the Council Tax list. The likelihood is that it was not. Mr Okoye’s evidence was that he paid Council Tax on behalf of the respondents but the bill which he produced to support that evidence referred simply to 1 Orpington Gardens. Nor is there evidence that the absence of the property from that list (if that was the case) was the reason why the address was not recognised by the Authority’s licensing portal, although again that seems plausible. What is indisputable is that, in 2018, the Authority’s Building Control department was aware that 1 Orpington Gardens had been divided into two units of occupation. Mr Okoye gave evidence that he was told when the Building Control Certificate was issued that it would trigger the registration of the property. The FTT did not accept that evidence, or at least it did not think it was credible that Mr Okoye would remember having been told that registration would take about two months in the absence of any written statement to that effect. Although that seems a surprising conclusion, the FTT heard Mr Okoye’s evidence and was entitled to reach it. But the process which Mr Okoye described, by which new dwellings are entered in the valuation list at the instigation of local authorities, and not on the initiative of developers, is substantially correct. Developers may have reasons for instigating the process, especially where new addresses are being created, but the obligation to do so lie elsewhere. As the FTT pointed out, the Building Control certificate issued to Mrs Okoye omitted any description of the work which had been done. It seems likely that it was that omission which explains the failure of the Authority, or the listing officer, to create a new entry in the valuation list.

It therefore seems to me that when considering the reasonableness of Mr Okoye’s excuse for managing the property without a licence, the FTT allowed itself to become distracted by an irrelevant allocation of blame for the circumstances in which the licence was rejected. It acquitted the Authority of responsibility without considering the duty of the valuation officer to maintain an accurate valuation list, and it held Mr Okoye responsible without identifying any duty or considering whether he had breached it. That was an error of approach which renders the FTT’s assessment of reasonableness unreliable.

Even if the FTT was entitled to judge the reasonableness of Mr Okoye’s excuse starting from the premise that he had been at fault in not obtaining registration of No.1a on the Authority’s database in 2018, I do not see how that fact is relevant to the reasonableness of his excuse for managing the property without a licence after 27 September 2022. The selective licensing scheme did not commence until several years after No.1a came into existence as a separate unit of occupation, and any duty there might have been to procure registration had nothing to do with licensing under the 2004 Act. Mrs Okoye appears to have applied for a licence as soon as she became aware of the requirement and, from then on, she and her husband were doing what they could to ensure that the property was registered where it needed to be so that their application could be submitted. If there was nothing more which could have been done after the Authority was alerted to the need to register the property, I do not see why an earlier default in providing information should affect the assessment of the legality of their continuing to manage No.1a without a licence while the Authority took steps which only it could take. In my judgment it is not enough to prevent the excuse from being reasonable that a licence could have been obtained at the first time of asking if No.1a had already been registered; nor would it be enough to bar the defence for Mr Okoye to have been in breach of some unrelated obligation concerning registration for Council Tax (which he was not).

For these reasons I am satisfied that the FTT’s approach to the assessment of Mr Okoye’s reasonable excuse defence is undermined by irrelevant considerations. I allow the appeal on ground 2 and set aside the FTT’s decision.

I substitute a determination that Mr Okoye had a reasonable excuse for managing No.1a without a licence from 27 September 2022. That excuse was that he and his wife had taken all steps open to them to obtain a licence but had been unable to do so because the licensing portal was configured in such a way that it rejected their application and continued to do so until 27 January 2023. Once that obstacle was removed a licence application was duly made within a reasonable time.

It follows that no offence was committed by Mr Okoye on or after 27 September 2022. As a result, the application for a rent repayment order made by Ms Zachariah and Mr Raju on 28 January 2024 was out of time, as more than 12 months had elapsed since the offence was last committed. Their application for a rent repayment order must therefore be dismissed.