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What form to use for TEN applications?11th August 2021 Commercial Litigation
We have noticed recently that some local authorities are requesting landlords who make an application for Temporary Exemption Notice (TEN) pursuant to section 62 of the Housing Act 2004 to use a specific form produced by the local authority, despite there being nothing in the legislation allowing local authorities to specify the form of the application.
We recently experienced this ourselves where we made an application for a TEN on behalf of a client to a London local authority. Despite pre-emptively explaining to the local authority why they cannot demand the use of a specific form, we still received a response insisting that the form be used. This may be a problem for landlords whose TEN applications may be deemed by the local authority as not properly made until their prescribed form is used. This leaves a landlord exposed to the risk of committing an HMO offence when they would have expected to be protected on submission of the TEN application.
The legislation merely provides that a notification must be sent to the local authority, which can be done by way of a simple letter setting out why the property has not been licensed and setting out what is being done to resolve the situation. The form which we have seen requests, for no apparent reason, information in excess of what has been set out as required in the Housing Act 2004. It even marks certain fields requesting this excessive information as mandatory, thus suggesting that this information is fact mandatory for a TEN application under the legislation, which cannot be true.
A variation of this issue, but in the context of an application for an HMO licence, was considered by the Administrative Court on an application for judicial review in R(Gaskin) v LB Richmond Upon Thames  EWHC 3234 (Admin).
The form produced by Richmond required information similar to what we have seen required in forms for TEN applications in other local authorities. Mr Gaskin refused to provide this information, being the names of each tenant and details about their individual tenancies. Richmond went even further and provided that additional fees would be payable where an incomplete application had been submitted. However the form of a licence application and a renewal application is specified in regulations produced by the government.
In respect of the issue of requesting additional information, it was found in Gaskin that Richmond’s insistence on the provision of additional information (over and above that set out in legislation and the accompanying regulations) was unlawful. The Court stated that there was no issue with the local authority “inviting the landlord” to provide the additional information “so long as it is made clear that this is voluntary”.
Applying this logic to TEN applications, local authorities may be allowed to request additional information but they must make it clear that the provision of this information will not affect the validity of the application or the granting of the TEN. It follows that requesting the additional information and even marking it as mandatory is likely to be unlawful.