Background
Mr Chong owned 12 Arden Crescent, London, a house in multiple occupation (HMO) requiring a license under Part 2 of the Housing Act 2004. Three tenants rented rooms with shared facilities between April and August 2022. The property was not licensed during this period. The respondents applied for rent repayment orders under section 41 of the Housing and Planning Act 2016.
Mr Chong’s defense was that in June or July 2021, he had spoken to Council licensing officers and been assured that his pending license application would be reviewed, treated as validly submitted, and backdated once he paid the fee. He relied on this understanding when letting the property to three tenants in February 2022, believing he was in compliance. The critical factual dispute was what Mr Chong had been told by Council officers at that time.
The First-tier Tribunal (FTT) initially ordered repayment of 50% of rent in June 2024. The Upper Tribunal set that decision aside on 8 November 2024, finding the FTT had failed to properly address Mr Chong’s evidence about what Council officers had told him. The case was remitted for redetermination before a different FTT panel.
The Court’s Holding
The Upper Tribunal dismissed Mr Chong’s appeal, affirming the FTT’s second decision of 23 September 2025 ordering repayment of 35% of rent (£8,318.76 total). Although the Court found a procedural irregularity—the FTT had not seen documents Mr Chong submitted on 16 May 2024, including phone records of calls to Council officers in January 2023—this irregularity did not render the decision unjust and therefore did not warrant setting aside the FTT’s order.
The Court held that procedural irregularities warrant setting aside a decision only if they are serious and render the decision unjust. A decision will be set aside only if the irregularity might have changed the outcome. Here, the excluded phone records showed only that Mr Chong had called Council officers but could not shed light on what was discussed. They were entirely unrelated to the FTT’s core reasoning for rejecting Mr Chong’s account of the June/July 2021 conversations. The FTT had disbelieved Mr Chong primarily because: (1) he had said nothing about any Council assurances when the Council notified him in December 2022 that he was managing an unlicensed HMO; and (2) inconsistencies existed between his hearing testimony and witness statement. The phone records from January 2023 could not diminish the force of either reason. Accordingly, the excluded documents would not have changed the FTT’s conclusion that Mr Chong had no reasonable excuse for letting without a license.
Key Takeaways
- Procedural irregularities do not automatically invalidate a tribunal decision; the irregularity must be serious and render the decision unjust
- A decision will not be set aside for procedural irregularity if it would clearly have been the same regardless of the irregularity
- Council licensing officers have no power to block or intervene in rent repayment order proceedings; they cannot authorize compliance with licensing schemes
- Contemporaneous silence when notified of a breach (failing to assert an earlier assurance) is probative evidence that no such assurance was given
Why It Matters
This decision clarifies the threshold for appealing tribunal decisions based on procedural irregularity. Even when a tribunal has inadvertently excluded evidence, an appeal will not succeed unless that evidence would realistically have altered the outcome. This protects finality while ensuring procedural fairness remains meaningful. The decision also confirms that landlords cannot rely on informal assurances from Council officers to excuse non-compliance with statutory licensing requirements. Compliance depends on what the law requires, not on advice—even if given—by individual officers without authority to create exemptions or prevent enforcement action.