Ellen Stokki & Ors v Ahmed Abu Choudhury

Introduction

1. This is an appeal from the decision of the First-tier Tribunal that it did not have jurisdiction to make a rent repayment order against the respondent in favour of the appellants, because they had made their application to the FTT one day late. The appellants have been represented in the appeal by Mr Jamie McGowan of Justice for Tenants. The respondent has communicated with the Tribunal by email, and has been granted an extension of time for submission of a respondent’s notice and grounds of opposition, but has not done so.

2. The FTT made its decision on the basis that the timing point had been decided by the Tribunal in Moh v Rimal Properties Limited [2024] UKUT 324 (LC) . The appellants seek to distinguish Moh v Rimal , and the FTT gave them permission to appeal. It will be convenient for me first to set out the relevant statutory provisions and then to explain the facts and decision in Moh v Rimal , before discussing the facts of the present case and the appellants’ arguments. The relevant statutory provisions

3. Part 2 of the Housing Act 2004 provides for a licensing regime for houses in multiple occupation, defined in the Act to include properties where two or more occupants in two or more separate households share facilities such as kitchen, bathroom or living space. Section 72 of the 2004 Act creates the offence of managing or being in control of an HMO that requires a licence and is not licensed; the premise of that provision is that not all HMOs require a licence. Generally a licence is required where the HMO has five or more occupants in two or more households (Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018), but a local housing authority may make an additional licensing direction under section 56 of the 2004 Act bringing a wider range of HMOs into the licensing regime.

4. The offence under section 72(1) is one of those listed in section 40 of the Housing and Planning Act 2016 , in respect of which the FTT may make a rent repayment order. Section 41(2) (b) of the 2016 Act says this: "(2) A tenant may apply for a rent repayment order only if: ...(b) the offence was committed in the period of 12 months ending with the day on which the application is made.” The decision in Moh v Rimal .

5. One further provision is relevant to Moh v Rimal (and not to the present appeal). Section 72(4) of the 2004 Act says this: “(4) In proceedings against a person for an offence under subsection (1) it is a defence that, at the material time– … (b) an application for a licence had been duly made in respect of the house under section 63, and that … application was still effective ….”

6. There were two appeals decided in Moh v Rimal , and I need only set out the facts of one of them, which I take directly from the Tribunal’s decision: “8. On 4 May 2021 Ms Moh, Ms Facciorusso and Ms Serrano took a tenancy of flat 501, Jerome House, 14 Lisson Grove, London NW1 from the respondent, their landlord Rimal Properties Limited, which holds a long lease of the building. It is not in dispute that the flat was throughout their tenancy an HMO that required a licence, under the additional licensing scheme introduced by the Westminster City Council in April 2021.

9. On 4 May 2022 the respondent applied for an HMO licence at 13:44.

10. On 4 May 2023 the appellants made their application to the FTT at 15:36.

11. The FTT decided that it did not have jurisdiction to make a rent repayment order. It held that the appellants were two days too late because a. the defence in section 72(4) (b) took effect from the first moment of the day, so that the last day on which the offence was committed was 3 May 2022 and b. the "period of 12 months ending with the day on which the application is made" ( section 41(2) (b) of the 2016 Act ) began at the first moment of 5 May 2022.”

7. The FTT in Moh v Rimal granted permission to appeal on two grounds: “i) Was an offence committed up to 13.32 on 4 May 2022? The [FTT] held that the last day on which an offence was committed was 3 May 2022. (ii) How is "12 months ending with the day on which the application is made" to be computed? The [FTT] found that the 12-month period ran from 00.00 on 5 May 2022.”

8. Obviously, the tenants in Moh v Rimal could succeed only if they persuaded the Tribunal on both those points, so that the offence was committed on 4 May 2022 (the day on which the landlord made his application and acquired his defence) and the period of 12 months included both 4 May 2022 and 4 May 2023 (the date on which the application to the FTT was made).

9. The Tribunal looked first at the second ground of appeal (which is not in issue in the present appeal). It accepted the proposition (agreed by the parties) that fractions of a day are to be disregarded. That proposition rested on some authority, but was in any event indicated by the wording of the statutory provision. For the tenants it was argued that the “corresponding date rule” applied, so that the period ran from 4 May 2022 to 4 May 2023, including the whole of both those days and thus extending to a year and a day. The Tribunal found that the corresponding date rule is well-established for use when computing time after a particular event, but had no application to the statutory wording under consideration. A period of one year was intended; it must include the whole of 4 May 2023; it therefore began at 00:00 on 5 May 2022.

10. As to the first issue (which made no difference to Ms Moh’s appeal but was relevant to the other appeal under consideration, and so was decided in relation to both), the Tribunal accepted that the offence was a continuing offence; as counsel for the tenants put it, the factual ingredients that make up the offence were all in place first thing on 4 May 2022. Again, fractions of a day were to be disregarded; the authorities on that point were not directly relevant because they were concerned with limitation, but there were obvious difficulties in dealing in fractions of a day in the case of defences where it is impossible to pin-point a time when it takes effect, such as the defence of reasonable excuse. The issue was which part of 4 May 2022 was to be disregarded. The Tribunal found that the point was free from authority and determined that it was to be resolved in the landlord’s favour, and that therefore the offence was not committed on 4 May 2022. The last day on which the offence was committed was 3 May 2022. The facts in the present appeal

11. The three appellants rented rooms in Flat 7, Mandeville House, of which the respondent is the freeholder, from September 2021 with another tenant, Ms Darga. The local housing authority had made an additional licensing designation in March 2021, with the effect that HMOs with three or more occupants were required to be licensed. The property was unlicensed.

12. The third appellant, Ms Georgiu, moved out on 30 August 2022. The first two appellants moved out on 19 September 2022. The FTT found as a fact that Ms Darga moved out on 18 September 2022; so after she left there were only two occupants and no licence was required. The appellants made their application to the FTT on 17 September 2023.

13. Following the Tribunal’s decision in Moh v Rimal , the FTT held that the period of 12 months ending with the day on which the application to the Tribunal was made ended with 17 September 2023 and therefore began at 00:00 on 18 September 2022. The FTT found that the offence ceased to be committed on 17 September 2022 and so was not committed during that 12 month period; the application was therefore out of time and it had no jurisdiction to make a rent repayment order. The FTT gave permission to appeal that decision. The appeal

14. Mr McGowan accepts that the FTT was right to decide that the 12 month period ending with the day on which the application was made to the FTT began at 00:00 on 18 September 2022; rightly, he did not attempt to revive the argument made in Moh about the corresponding date rule. The only issue in this appeal therefore is whether the offence was committed on 18 September 2022.

15. Mr McGowan argues that the FTT misunderstood what was decided in Moh v Rimal,, which he says was not that “the day or part of a day when the Respondent ceased to commit the offence does not count as a day on which an offence was being committed for the purposes of calculating time”. The Tribunal in Moh v Rimal decided only when a defence takes effect, and its decision did not bind the FTT in relation to the present facts which did not involve a defence, but rather the cessation of one of the elements of the offence. And at the start of 18 September 2022 there were three occupants in the flat; on that day therefore, Mr McGowan argues, the offence was being committed, and that was within the 12 month period. There should be no difficulty, he argues, in regarding the offence as having been committed throughout 18 September 2022.

16. Mr McGowan points out that if the landlord had instead committed the offence of unlawful eviction in the morning of 18 September 2022 it would be obvious that he had committed the offence on that date, even though what he did might have taken only five minutes; “the FTT’s interpretation of Moh v Rimal would thus create a bizarre and undesirable incongruity between how time runs from ‘once and for all’ offences and continuing offences.”

17. In my judgment the FTT was right to follow the Tribunal’s decision in Moh v Rumal . I agree that the circumstances are slightly different; instead of the situation changing by the fact that a defence took effect on the day in question, in the present case one of the elements of the offence ceased to exist. But the same reasoning is equally applicable to the present case.

18. First, the offence is a continuing offence. Second, it is well-established that fractions of a day are to be disregarded. Again, the difficulty in relying on fractions of a day is obvious; we do not know what time Ms Darga left. Third, it is therefore necessary to decide which part of 18 September is to be disregarded; the time after she left, in favour of the tenants, or the time when she was present, in favour of the landlord? I take the same approach as I took in Moh v Rimal ; this is not a limitation case and the issue is whether a serious penalty should be imposed upon a landlord. In Moh v Rimal I said at paragraph 67: “The facilitation of applications for rent repayment orders is not an overriding consideration in determining this question. Far more important is the fact that this is a matter of criminal liability. Faced with a choice between deciding that a landlord is committing an offence throughout the day on which he applies for a licence, and deciding that he has a defence throughout the day on which he applies for a licence, I have no hesitation in choosing the latter. Put another way, because I have to disregard fractions of a day I prefer to say that the landlord has a defence in the morning because he applied for a licence later in the day, than to say that he is committing an offence all afternoon and evening even though he has already applied for a licence.”

19. In the present case I would put it this way: the facilitation of applications for rent repayment orders is not an overriding consideration in determining this question. Far more important is the fact that this is a matter of criminal liability. Faced with a choice between deciding that a landlord is committing an offence throughout the day on which he ceased to do so, and deciding that he was not committing the offence throughout the day on which he ceased to do so, I have no hesitation in choosing the latter. Put another way, because I have to disregard fractions of a day I prefer to say that the landlord was not committing the offence in the morning because he ceased to do so later in the day, than to say that he is committing an offence all day even though he ceased to do so at some point during the day.

20. Mr McGowan’s comparison with the offence of unlawful eviction is not relevant; the conundrum about when the offence ceased to be committed arises only in the case of continuing offences. There is no incongruity with the position for once-and-for all offences. Conclusion

21. The appeal fails; the FTT had no jurisdiction to make a rent repayment order. Upper Tribunal Judge Elizabeth Cooke 9 January 2026 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.