Licence Fees may be unlawful

by Readers Question

8:12 AM, 13th August 2018
About 3 months ago

Licence Fees may be unlawful

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Licence Fees may be unlawful

I have just seen the article by solicitor Giles Peaker on his excellent blog “Nearly Legal”, which relates to a recent case in which LB Richmond’s HMO Licence Fees have been found to be unlawful, as they were set in breach of an EU Directive.

The issue was whether private letting of accommodation was a service for the purposes of EU Directive 2006/123/EC. If it was, then the licence fee would be restricted to just the apportioned costs of processing the application, not the broader costs of the operation and enforcement of the licensing scheme.

The court concluded that the private letting of accommodation amounts to a service within the meaning of the Services Directive. The Court held that LB Richmond’s fee for an HMO licence was unlawful because it was not strictly limited to the costs to LB Richmond of processing the licence application. Accordingly LB Richmond had not been entitled to demand the fee which it had demanded.

While this may still allow Councils to charge a fee for HMO/Selective licensing, it would appear to limit the fee to the cost of processing the application only.

Giles Peaker does point out that this case may be appealed by the LB Richmond, but in the meantime, for anyone disputing HMO or Selective Licensing, this case should perhaps be brought to the attention of the landlord’s legal representatives.

Robert



Comments

Neil Patterson

8:51 AM, 13th August 2018
About 3 months ago

Thank you Robert and here is the article for reference 🙂 >> https://nearlylegal.co.uk/2018/08/service-not-included/

Laura Delow

11:11 AM, 13th August 2018
About 3 months ago

Based on this Gaskin vs LB Richmond case outcome, does anyone have a view on whether not to pay the next selective licensing fee demand in the hope of winning in court like Mr G or take another course of action? I've just paid £800 in 2 selective licensing fees & am due to pay another one before a 01.01.19 deadline and no doubt there will be many more to follow in the very near future from different councils.

BB

11:30 AM, 13th August 2018
About 3 months ago

Then would it be fair to say, that if the fees were collected illegally or unlawfully or not compliant with EU law. So will they be refunded to many Landlords like myself whom have paid in recent months?

Mark Alexander

11:52 AM, 13th August 2018
About 3 months ago

Reply to the comment left by Laura Delow at 13/08/2018 - 11:11
I think it could be a very risky strategy to refuse to pay licencing fees on the back of this judgement.

First, please see the full write-up by the Council acting for Mr G via the link below.

https://www.londonpropertylicensing.co.uk/court-decides-property-licensing-fees-must-be-charged-two-stages-and-names-occupants-cannot-be

Second, consider this case may well go to appeal.

Whilst I cannot give you legal advice I can tell you what I would do. I'd pay the fees and then register a complaint and follow it through to Government Ombudsman level if it isn't settled to my satisfaction. The Mr G case would be only one of several points covered in my complaint. Another would be based on the Court of appeal ruling as per the linked article below.

I would then await the outcome of the Mr G case, i.e. expiry of right to appeal or the appeal judgement if it goes that way. at that point i would then consider bringing a MCOL case against the Council.

Chris Daniel

22:59 PM, 13th August 2018
About 3 months ago

Reply to the comment left by Mark Alexander at 13/08/2018 - 11:52Of the two options, I'd agree with the latter. Of course, the ruling ( subject to possible - probable appeal ) only refers to charging the enforcement proportion of the license at the point of application - not that after application and grant of license, that remaining proportion for enforcement wouldn't be due and collectable.
I think a far better argument to make is the costing of many of the English licensing schemes, which are supposed to have their costs based on realistic costs of administering a licensing scheme. To make this point, I'd refer to Wales' Licensing scheme, where they can license a Landlord and any [ unlimited ] number of properties s/he owns and manages for £144 for 5 years. How can another Local authority claim it costs £800 per PROPERTY to enforce a licensing scheme. What costs are they allegedly incurring that Wales isn't ?
Okay I admit, Rent Smart Wales haven't done a tap for the 3144, but there again, neither have many of the other L.A's who are charging many many times more.
I think the key is for as large a group of landlords as possible from one L.A area to combine funding to take a judicial review against an L.A on this point - views ?
Pick the most expensive and if a case is won against them, Licensing in the other L.A's will collapse like a pack of cards.

Mark Alexander

5:53 AM, 14th August 2018
About 3 months ago

Reply to the comment left by Chris Daniel at 13/08/2018 - 22:59
I am talking directly to Mr G about exactly that.

Mick Roberts

13:31 PM, 14th August 2018
About 3 months ago

Ha ha yes I was thinking the same.
Do I license the rest of my houses? Hmm probably yes & let's hope if the council get found wrong, they do the right thing & refund us.

Hmm good idea Mark, complaint then Ombudsman.

I've started my complaint off now with the words from you lot above.

Liam Strid

15:22 PM, 14th August 2018
About 3 months ago

Reply to the comment left by Mick Roberts at 14/08/2018 - 13:31
Yes Mick. Mark is right. Pay then complain. As you already know that these councils have you forking out your money anyway. They have abused their powers with me. I have caught them redhanded. I have paid first then am persuing my complaints. The council can be rather malicious so Landlords beware!

Rob Crawford

19:30 PM, 21st August 2018
About 3 months ago

Is anyone aware as to whether Richmond-upon-Thames LBC will be launching an appeal against this Divisional Court judgement? I appreciate they have 21 days (or is it 28 days) to appeal. Also, can we assume the same argument would apply to mandatory & additional licensing?

Mark Alexander

20:08 PM, 21st August 2018
About 3 months ago

Reply to the comment left by Rob Crawford at 21/08/2018 - 19:30
We will not know until after the 28th.

Mr G also has an opportunity to appeal other issues in regards to fees. I’m really hoping he does, and they were whitewashed over at the last hearing and they are incredibly important. However, he has cleared his name, which I suspect was his objective. Whether he will be prepared to go the extra mile for all landlords remains to be seen. If he does, I think all landlords are morrally duty bound to back his case.

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