Friday, 31 May 2019 16:49

HMO Licensing Appeals – Thoughts On The Judiciary

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HMO Licensing Appeals – Thoughts On The Judiciary

Having won our 1st appeal (over an adequately sized room that PCC believed to be too small) last month, this month the next 7 cases came to court. We hope the decision of the 2 judges will be available in the next few weeks and when it is, we will share it.

In the interim, some observations and recommendations for all concerned.

Going to court, whether for civil or criminal cases, is a major undertaking. Given that we all agree (or I hope we do), that everyone is innocent until proved guilty and also, that everyone is entitled to a fair trial, this leads to several outcomes:

  1. Going to court is not cheap – if you have someone who understands the law and applies it fairly, whether they be a judge with 30 years training or some other person with expertise supported by trained court staff, then there is a substantial cost in getting all parties together to review the facts
  2. Also, it takes time – in the case of our appeals, 8 months so far and still counting. If the trial is to be fair, both sides need to collect and collate the facts as they see them, these need to be shared and then the other side needs time to understand the other view and also, to prepare counter arguments or whatever as necessary

So, in our examples, we have appealed against comparatively minor licensing decisions – our members have spent many hours preparing the necessary paperwork as we imagine, have PCC and the end result is that each case is accompanied by a ‘bundle’ of paperwork which can reach 500 pages. Each bundle is copied 5 times and each player in the courtroom has a copy of the bundle and then this evidence is reviewed and those judging listen to and challenge the arguments and views of both parties, before retiring to come back with a considered decision some weeks later.  Somewhere in the middle of that, the main proponents will often inspect the properties in question as well as challenge and debate the views of the other party.

So what do we conclude? We have three recommendations:

  1. The First Tier Tribunal, which is hearing our appeals, is supposed to be ‘legal light’ and to remove some of the overhead of a normal court – but if any case is to be reviewed fairly, then there is a burden of evidence which means the cost and time of using a court to resolve an issue is high. Whilst we argue in our letter to the Minister of State (see Section 21 plans and watch out for press release in the coming days) that a mediation solution is required as part of any upgrade to the court system, we do not see that being appropriate when one party is a Local Authority applying what it believes to be the rules – so courts need to be geared up to handle current volumes more expeditiously.
  2. The best solution is not to go to court. Our advice to anyone operating any scheme under current laws is to do so against widely available, clearly written, intelligible documentation and NOT to change how rules are applied or interpreted without clearly documented policy guidance to that effect AND wide consultation. Failure in either of these respects risk confusion or lack of clarity which ultimately, leads to disputes at which point, court is the only option
  3. And if you are a member affected by the current licensing issues and have been asked to reduce a property from 5 to 4 rooms or similar, it is now too late to let as a ‘5’ for the 20/21 academic year. Our recommendation is to ameliorate the impact on your revenue by letting as a ‘large 4’ and increasing the rent per room accordingly. Keep detailed records of how much you lose in 20/21 in spite of doing this and if our appeals are won, we will be preparing a claim against PCC on behalf of all of our affected members for the consequential loss incurred.

End Notes

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