Judge D BarlowMr Alan McMurdo (MCIEH)Respondent(s) : (1)Mr Clement Amaning; (2)Dr Marie Amaning; (3) Nathaniel Adjeidu Armar and Adelaide Adu-Armar Representative : Mr Clement Amaning for the ApplicantMr Clement Amaning Application for a rent repayment order for the RespondentDate 20 March 2023Hearing 2023-02-08Property: 18 Belconnen Road, Bestwood, Nottingham, NG5 5HYType of application: by tenant Sections 40, 41, 43, & 44 of the Housing and Planning Act 2016
DECISION
2 The Tribunal determines that it shall exercise its discretion to make a rent repayment order in terms that the 2nd Respondent shall pay to the Applicant the sum of £2,750.00 within 35 days of the date of issue of this decision. Background[1]The Applicant was granted a tenancy of the Property for a fixed term of 1 year at a monthly rent of £450.00, approximately 10 years ago. Mr Clement Amaning believes that the agreement was signed by the letting agent who prepared it, on behalf of the landlord. Neither party has been able to locate a copy of the written agreement but assume that it was a standard assured shorthold tenancy of the type usually arranged by letting agents on behalf of landlords.[2]On expiry of the written agreement Mr Amaning told Mr Green that they didn’t want to renew the agreement through the letting agents but that his family could continue to reside at the Property until such time as it might be required for occupation by a relative, provided he paid a monthly rental £500.00. Mr Green and his family have remained in occupation of the Property ever since, paying the agreed rental of £500.00 per month.[3]On 1 August 2018, Nottingham City Council (“NCC”) made an order designating the area in which the Property is located as subject to selective licensing under section 80 of the Housing Act 2004 (“the 2004 Act”). By section 95(1) of that Act, it is an offence for a person to have control of or manage a house which is required to be licensed but is not so licensed.[4]Chapter 4 of the Housing and Planning Act 2016 (“the 2016 Act”) allows a tenant to make an application for a rent repayment order if an offence under section 95(1) of the 2004 Act has been committed.[5]The Applicant applied for a rent repayment order on 26 September 2022. He seeks an order for repayment of rent for the period during which the offence was committed.[6]Directions were made on 10 October 2022, requiring the 1st and 2nd Respondents to confirm the identity of the landlord. Mr Amaning stated by letter on 2 November 2022, that the landlord was the 3rd Respondent, that the written agreement could not be found, but he presumed it to be in the usual AST form.[7]On the 8 November 2022, the Respondents were directed to confirm who was in receipt of the rents paid by the Applicant. On 11 November 2022, Mr Amaning filed a statement on behalf of the Respondents. It confirmed that Dr Marie Amaning was in receipt of the rents. Redacted copies of her 3 Barclays Bank account statements for the years 2019 and 2021 were attached showing transfers of rent from the Applicant into her account.[8]Mr Green’s evidence at the hearing (not disputed) was that he had paid the rents into the same account since the first taking occupation of the Property 10 years ago. However, he believed throughout that the account belonged to Mr Clement Amaning, who he also believed to be his landlord. Facts[9]From the written statements and oral evidence given at the hearing (held via the Video Hearing Service (VHS) on 8 February 2022, attended by Mr Clement Amaning, representing the Respondents and Mr Green representing himself), we have been able to determine the facts, as they are set out below.[10]The Property has been owned by Nathaniel Adjeidu Armar and Adelaide Adu-Armar since 2006. They are the registered proprietors of the freehold title and currently reside in Ghana. They are relatives of Dr Amaning who is the wife of Mr Clement Amaning.[11]A written tenancy agreement was entered into approximately 10 years ago for a fixed term of 1 year. It was arranged by letting agents. The parties to the agreement, its terms and the manner of execution are not ascertainable because the agreement has been lost. It is likely that that the document was a standard assured shorthold tenancy agreement, but the identity of the contractual landlord cannot be ascertained.[12]Dr Amaning has been in receipt of the rents from the Property throughout Mr Green’s tenancy but has never met or spoken with him. All communication concerning the tenancy has been between Mr Clement Amaning and the Greens. No evidence has been provided in the form of a witness statement or otherwise, that the rents (or any part of the rents) received by Dr Amaning during the tenancy were either received by her on behalf the 3rd Respondent or paid to the 3rd Respondent.[13]Mr Amaning has dealt with all issues concerning the management of the Property and any rental adjustments or arrears, throughout. There has not been any contact between Mr Green and the 2nd and 3rd Respondents. We are satisfied by Mr Green’s evidence that until these proceedings he was unaware of the existence of Dr Amaning or the freeholders, having only ever dealt with Mr Amaning.[14]Following expiry of the written agreement Mr Green and family remained in occupation, paying a rent of £500.00 per month to the same account. No variation of the terms of the written agreement (other than the length of term and the rent) were discussed or agreed by Mr Green. It is therefore likely that a further contractual period was agreed, of an indefinite term determinable by the landlord when/if the Property was required to 4 accommodate a relative of the landlord. There is no written evidence which confirms the owners are also Mr Green’s contractual landlord.[15]The relationship between Mr Green and Mr Amaning has been largely good. The Property was in good condition when Mr Green’s family moved in and Mr Amaning has been flexible when Mr Green’s employment or other financial circumstances have made it difficult for Mr Green to make the rent dates. He has allowed Mr Green to keep a pet and to move the rental payment date from 1st month to 24th month to tie in with Mr Green’s salary payment date. He has also allowed rental deferments for personal expenses such as an anniversary holiday. The accommodations have not just been by Mr Amaning. Mr Green, who has two children with disabilities, has nonetheless been amenable to arranging small repairs, which he paid for and deducted from rent, with Mr Amaning’s consent.[16]Sadly, this good, flexible relationship was put under stress in January 2021 when the boiler broke. A temporary repair failed (there is a difference of opinion as to why) and the boiler had to be replaced. It took until early March 2021 for this to happen during which time Mr Green’s family had to travel to his parents to shower and wash items. This put a considerable strain on the family. He complained to Nottingham City Council (“NCC”) who carried out an inspection.[17]Following the inspection Mr Amaning provided temporary additional space heaters and arranged for the boiler replacement. NCC notified Mr Amaning that an offence of failing to obtain a selective licence was being committed and explained that he needed to make an immediate application. NCC then carried out an investigation into the failure to licence.[18]In April 2022 NCC issued a notice of intent to issue a financial penalty to Mr Amaning for the offence of failing to licence the Property, followed by a final notice on 25 May 2022. Mr Green provided a statement to the council officer confirming that he had paid the rent to his landlord, Mr Amaning for 10 years. Mr Amaning appealed on the grounds that he was not an owner of the Property or in receipt of the rents. He provided evidence that Dr Amaning was in receipt of the rents for a considerable period of the offence period and confirmed that having obtained a Power of Attorney from the freeholder on 4 June 2022, it was Dr Amaning that was applying to be the licence holder. Consequently, NCC withdrew the final notice it had issued against Mr Amaning.[19]On 23 June 2022, NCC notified Mr Green by letter that the investigation had concluded that an offence had been committed by his landlord between 1 August 2018 and 4 October 2021. 20.Mr Amaning said in evidence, that the on-line application commenced in February 2021, but was very complicated. Dr Amaning had obtained the Power of Attorney in June 2021 to satisfy one of the requirements and satisfying other requirements had taken some time. The application was 5 eventually “deemed” received by the NCC on 5 October 2021, and a Part 3 licence granted from that date, expiring on 13 October 2026. The Respondents evidence[21]Mr Amaning filed a statement on behalf of the Respondents. The 2nd and 3rd Respondents have not participated in the proceedings apart from asking Mr Amaning to file what he describes as a ‘joint statement’ on their behalf. The statement is brief. It exhibits proof of ownership of the registered freehold, copies of the Part 3 licence and a copy of the Power of Attorney. 22.Under the Power of Attorney, the freehold owners appoint Dr Amaning as their attorney. The power was executed in Ghana on 4 June 2021, before a barrister of the Supreme Court of Ghana. It authorises Dr Amaning to carry out and execute various acts and things on their behalf including any matter relating to the Property. It expressly includes giving notices to tenants and occupiers, enforcing any remedies available to the grantors, and accepting on their behalf any sums of money payable to them in respect of the Property. 23.Also exhibited to the statement are redacted copies of Dr Amaning’s Barclays Bank account statements for the year 2019 and 2021. These show the following payments in from Mr Green:[24]23 Jan 2019 – 22 Jan 2020:a. 24 Jan. £500.b. 25 Feb. £500.c. 25 March £500.d. 24 April £500.e. 11 Jun. £500.f. 25 June £500.g. 24 July £500.h. 03 Sept. £500.i. 01 Oct. £500.j. 04 Nov £500.k. 02 Dec £500. 11 payments of £500 = £5,500.00[25]23 Jan 2021 – 21 Jan 2022:a. 13 April £500.b. 23 April £500. 6c. 02 Jun. £500.d. 28 June £500.e. 02 Aug. £450.f. 31 Aug. £500.g. 28 Sept. £500h. 25 Oct. £500.i. 26 Nov. £500.j. 23 Dec. £500. 9 payments of £500 = £4,500; plus 1 x £450 = £4,950.00 26.Mr Amaning confirmed that the monthly payments into Dr Amaning’s account are rent for the Property. He stated that the original tenancy agreement was entered into with Mr Green by the letting agents over ten years ago, and that he has been unable to procure a copy from them. He stated that Dr Amaning has an ongoing agreement with Mr Green for monthly payment of £500.00. He stated that the letting agents stipulated the original terms and that there has been no subsequent dispute about the terms.[27]Mr Amaning explained that he had successfully challenged the financial penalty notice and suggests this was because Mr Green incorrectly informed NCC that he was the landlord in receipt of the rents. As this has been shown not to be correct, Mr Amaning doesn’t understand why Mr Green is pursuing him for rent repayment. There is, he states no basis for any claim against him. 28.Mr Amaning referred to the applicable 12-month period as being the one Mr Green is claiming, which he states is from August 2021 to August 2022 (the period covered by the bank statements attached to the application). He pointed out that the Property was licenced from October 2021 which covers most of this period. 29.His statement does address the potential liability of Dr Amaning and/or the 3rd Respondent for the failure to licence. It does not confirm whether the freeholders are the contractual landlord (and if so on what basis), or who is beneficially entitled to the rent paid to Dr Amaning. It is silent about the relationship between the freeholders and Dr Amaning and about if/how she accounts to them for any Property payments and receipts. It is silent about arrangements for the day-to-day management of the Property. 30.In oral evidence at the hearing Mr Amaning was a little more forthcoming. He said Dr Amaning had hoped to attend the hearing but was prevented from so doing by work pressures.[31]Mr Amaning confirmed that he and Dr Amaning have been managing the Property since the tenancy commenced and that it is the only property they manage. After the fixed term tenancy expired Mr Amaning asked Dr Amaning what she wanted to do. She said to allow Mr Green’s family to remain in the Property until it was required at a monthly rent of £500.00. 7 He confirmed that they were both unaware of the need to licence the Property until the boiler issue in January 2021. As soon as he was made aware of the licensing regime by NCC, a licence was applied for. 32.Mr Amaning said that Mr Green was or should have been aware that he was not the landlord, because whenever he’d spoken to him about arrears, he said “I have been told that the rent has not been paid” or sometimes “I have been told by the landlord that the rent has not been paid”. This was denied by Mr Green who said that Mr Amaning had never mentioned a landlord. He might have said that he’d been told that the rent had not been paid but Mr Green hadn’t taken that to mean he’d been told by someone who was his landlord, because he had always thought Mr Amaning was his landlord. 33.Mr Amaning said that the change in payment dates meant that the rent was now paid in arrears (which Mr Green accepted) and that there remained some 2 months’ rent arrears from January and February 2021 when Mr Green did not pay rent for 3 months. Mr Green accepted that he had withheld rent for 3 months when the boiler broke. He thought that he had since paid all but 1 month of the arrears but was willing to accept it could be 2 months, for which he apologised.[34]Mr Amaning commented on the flexible arrangements concerning maintenance and repairs and said he was surprised that there was any allegation he had failed to keep the Property in good repair. He said that he had attended to all the issues highlighted by NCC following the inspection, most of which were retrofitting of additional safety measures rather than items of disrepair. There was, he acknowledged still some water staining from an earlier leak that needed attention. Historically, minor items had, by agreement, been attended to by Mr Green and he had allowed him to deduct the cost from the rent. The boiler replacement in 2021 was slightly delayed by an initial unsuccessful repair, followed by his first engineer having caught Covid, but a new boiler was fitted in March 2021. Applicant’s evidence[35]Mr Green’s application together with a letter dated 26 October 2022, stood as his statement of case. He relies on the letter dated 23 June 2022 from NCC as evidence that the Property was not licenced until 5 October 2021. 36.The letter confirms that Mr Green was not in receipt of benefits during the time the offence was committed.[37]A copy of Mr Green’s sworn statement to the council dated 8 September 2021, was included in the Respondents bundle. Mr Green stated that 18 Belconnen Road was a 2 storey, 3-bedroom house which he had rented from Mr Amaning for 10 years at a rent of £500.00 per month. He 8 provided contact details for Mr Amaning and said he had met him on about three occasions. Mr Green told the council there were issues with the fencing, the waste pipe from the sink and some faulty lights in the living room. He stated that repairs either took a while to fix or he fixed them himself.[38]Mr Green attached copies of his on-line bank transactions for the period August 2020 to August 2021. He confirmed in evidence that his online account only allows him to access details of transactions going back 15 months, which is why the copy transactions he has produced only cover part of the period of the offence. The copies show transfers of £500.00 per month to Clement Amani. At the hearing Mr Green was asked to check the sort code and account number of the transferee account. He confirmed the account and sort code was the same as on Dr Amaning’s statements. Mr Green thought he was paying the rent by standing order but on checking realised that it was set up as a recurring payment to go out on 24th month, not a standing order. He confirmed that reference to Clement Amani was probably the payment reference he had given to his bank at the outset because he thought Mr Amaning was his landlord and he was paying rent into his account. 39.Mr Green confirmed that there was outstanding remedial work in respect of the kitchen following a leak, to the wiring in the living room, where the lights flicker, a rat damaged wall where the infestation had been eradicated but which needed attention. He had been told that the Property was now required as a residence for Mr Amaning’s brother and a complete refurbishment would be carried out once Mr Green’s family have left. However, subject to these minor outstanding items, the Property currently provides warm, secure, and reasonably satisfactory accommodation. The Law 40.Before a rent repayment order is made, the Tribunal must be satisfied, beyond reasonable doubt, that a designated offence has been committed (see section 43(1) of the 2016 Act). An offence under section 95 of the 2004 Act is such a designated offence.[41]The relevant parts of section 95 provide: “Offences in relation to licensing of houses under this Part(1) A person commits an offence if he is a person having control of or managing a house which is required to be licensed under this Part (see section 85(1)) but is not so licensed.(2) … (3)In proceedings against a person for an offence under subsection (1) it is a defence that, at the material time— 9 (a) … (b) an application for a licence had been duly made in respect of the house under section 87, and that notification or application was still effective (see subsection (7)). (4)In proceedings against a person for an offence under subsection (1) or (2) it is a defence that he had a reasonable excuse—a. (a) for having control of or managing the house in the circumstances mentioned in subsection (1), orb. (b) for failing to comply with the condition, as the case may be. 42.The relevant part of s87 provides: “Applications for licences (1) … (2) The application must be made in accordance with such requirements as the authority may specify” 43.The standard of proof is “beyond reasonable doubt”. It is not that the offence has to be proved beyond any doubt at all (see Opara v Olasemo [2020] UKUT 0096 (LC)). 44.The amount of a rent repayment order on an application by a tenant is governed by section 44 of the 2016 Act. This requires that the amount must relate to rent paid by the tenant in respect of a period, not exceeding 12 months, during which the landlord was committing the offence. The Tribunal must take into account the conduct of the landlord and the tenant, the financial circumstances of the landlord, and whether the landlord has been convicted of an offence to which Chapter 4 of the 2016 Act applies. The issues for the Tribunal: Are we satisfied beyond reasonable doubt that the landlord has committed the alleged offence under Section 95(1) of the Housing Act 2004 in respect of control or management of an unlicensed house? 45.The elements of the offence are not in any serious doubt and the Respondents have not disputed that an offence of failure to licence has been committed, or the jurisdiction of the Tribunal to make an RRO. The Tribunal accepts the written evidence from Nottingham City Council that 10 the Property was both within a selective licensing area as from 1 August 2018, and that no application for a licence was made until 5 October 2021. 46.There is no dispute that Dr Amaning is the person who receives the rack rent either on her own account or as agent for the freeholder and has been that person throughout the tenancy. She is therefore a person “having control” of the Property (s263(1)) and also a person “managing” the Property (s263(3)) and consequently, the person who (subject to any available defence) commits an offence under s95(1) of failing to obtain a required licence.[47]However, for the purposes of RROs we must also determine if she is the landlord. This is because an RRO can only be made against the person who has received the rent on their own account. Mr Amaning has suggested that the landlord is the overseas 3rd Respondent freeholder. Mr Green is adamant that his landlord is and has always been, Mr Amaning. 48.Contractually the position is unclear. The original written tenancy is unavailable and the only evidence of the parties to it, is Mr Amaning’s recollection that the document was entered into by the letting agent on behalf of the landlord. The freeholders have not filed a statement confirming that they are the direct landlord of the Applicant. They have not participated in the proceedings in any way. 49.Dr Amaning has not filed a statement or participated meaningfully in the proceedings. Although Mr Amaning says that his statement was made on behalf of all the Respondents, it fails to address the nature of the contractual relationship between Dr Amaning and the freeholders and the freeholders relationship (if any) to Mr Green the tenant. The bank statements which were heavily redacted did not show that the rent or any part of it was transferred on to the freeholders. Mr Amaning offered no evidence on this point either in his statement or at the hearing. It was evident from the statements that the rent was being paid into Dr Amaning’s account (and there is no dispute that had been the case for 10 years). But there is no evidence, apart from Mr Amaning’s bald statement that the freeholders are the landlords, of any direct contractual relationship of landlord and tenant between the freeholders and Mr Green. 50.The Power of Attorney, (which did not come into existence until June 2021, toward the end of the period during which the offence was committed), simply confirms the extent of the Dr Amaning’s powers to deal with the Property. It does not say anything specific about Mr Green’s tenancy and does not make specific reference to rents. It is a very general form of authority that does not assist in clarifying the identity of the person entitled on their own account to the rents paid by the Mr Green.[51]We do not know what contractual arrangements exist between Dr Amaning and the 3rd Respondent freeholders concerning the renting of 11 the Property because (apart from a copy of the power granted to her in June 2021), we have not been told. It would have been a very simple matter for Dr Amaning to make a statement, or write a letter confirming that she was manging the property (with her husband) and collecting the rent on behalf of the freehold landlord. She has not offered any evidence and that provided by Mr Amaning does not confirm that the rent was collected on behalf of the freeholders or passed on to them. The only reliable evidence we have is the bank statements put before the Tribunal. Therefore, and having regard to the Respondents failure to provide any satisfactory evidence of a contractual relationship between the 3rd Respondents and the Applicant, we find on the balance of probabilities, that the rent has been collected by Dr Amaning on her own account, as de facto intermediate landlord. 52.We found Mr Green to be a reliable and credible witness. He readily owned his failings in relation to missed rental payments and did not dispute that his landlord had been flexible and reasonable about his difficulties. There was no reason for him to have made a sworn statement to the council confirming that Mr Amaning was his landlord if he doubted that to be true. It is only through these proceedings that he has come to appreciate that his rent was actually being paid into Dr Amaning’s account. Nothing prior to these proceedings would have alerted him to the possibility of there being an undisclosed landlord who Mr Amaning was representing. We do not accept that Mr Amaning’s oblique comments about unpaid rent were anywhere near sufficient for Mr Green to have understood that Mr Amaning was not the landlord. That being said, as Mr Amaning does not appear to have ever been in receipt of the rents and he is not an owner. He cannot therefore have been a person having control of or managing the Property and consequently did not commit an offence under s95(1). 53.It follows that although the 3rd Respondent freeholders are owners, they are not persons in receipt of the rack rent directly (or indirectly through an agent or trustee) and therefore have not committed an offence under s95(1).[54]We considered whether Dr Amaning’s lack of awareness of the requirement to licence until January/February 2021, may provide a defence of reasonable excuse under s72(5). Useful guidance on this question can be found in Thurrock Council v Daoudi, 2020 WL 04005713 (2020) where the Upper Tribunal considered two ways in which ignorance of the need to obtain a licence might be relevant: “There may be cases in which an ignorance of the facts which give rise to the duty to obtain a licence may provide a defence of reasonable excuse under section 72(5) ……………………………………. It is also possible to imagine circumstances in which a landlord had a reasonable excuse for not appreciating that a property had 12 come within a selective licensing regime (although it would be necessary for the landlord to have taken reasonable steps to keep informed). Short of providing a defence, ignorance of the need to obtain a licence may be relevant to the issue of culpability. Although, as the Government's Guidance points out, a landlord is running a business and ought to be expected to understand the regulatory environment in which that business operates, not all businesses are the same. A decision maker might reasonably take the view that a landlord with only one property was less culpable than a landlord with a large portfolio.” (my emphasis).[55]The Respondents did not articulate any defence on this ground. However, the Tribunal is satisfied that the Dr and Mr Amaning were unaware of the selective licensing regime until notified by NCC in Jan/Feb 2021 and thereafter they took steps to obtain a licence without disputing the requirement. The Tribunal also accepts Mr Amaning’s evidence that he and his wife are not professional landlords, and only manage this Property. 56.That being said, the selective licensing regime has been in force for some years now and is reasonably well understood by landlords operating in Nottingham. Landlords are aware (or should be) of the seriousness of failing to licence their properties and the onus is on those benefitting from the lettings to ensure that they are abreast of the relevant law. No evidence was offered of any steps, reasonable or otherwise, taken by or on behalf of the landlord to keep herself informed of the regulatory regime under which the Property was let. Furthermore, it took the landlord some 8 months to complete the online application process. The Tribunal accepts the process is not always straightforward, but this is a significant period of time.[57]The circumstances are not therefore sufficient for the Tribunal to find the landlord has a reasonable excuse for not appreciating that the Property had come within the selective licensing scheme. They are however circumstances that we have considered below in relation to culpability. Was the offence committed by the landlord in the period of 12 months ending with the date the application was made? 58.The application was received by the Tribunal on the 26 September 2022. The period of the offence ended on 4 October 2021, so the short answer is yes. What is the applicable 12-month period? 59.Under Section 44(2) of the 2016 Act the period is a period, not exceeding 12 months, during which the Respondent was committing the offence. The Respondent committed an offence between 1 August 2018 and 4 October 2021. For offences lasting over 12 months the applicable period 13 is any consecutive 12-month period during which the offence was committed. 60.In this case the Applicant did not specify the applicable 12-month period. He provided evidence of rent paid between August 2021 and August 2022, but also confirmed that he had paid rent of £500.00 per month throughout the offence period. Evidence that was largely undisputed by Mr Amaning apart from his complaint that payments were not always on time and there had been a three-month period in January - March 2021 when Mr Green withheld rent due to the boiler issue, two months of which remain outstanding.[61]There is no dispute that the rent is exclusive of utilities, council tax, internet and other outgoings, all of which are paid by the tenant. 62.The Respondents provided evidence of rents paid for 2019 and 2021 as set out in paragraphs 24 and 25 above. Using the Respondents evidence, we have adopted the 12-month period from 23 January 2019 to 22 January 2020 as the applicable 12-month period. This is because consecutive bank statements have been provided for the entire 12-month period during which the offence was being committed and it is a period which appears to fairly reflect the pattern of the Applicants payments throughout the tenancy. Whereas the statements for 2021 include the distorting effect of a three-month period at the start of 2021 when rent was withheld due to the boiler not working. What is the maximum amount that can be ordered under section 44(3) of the 2016 Act? 63.The effect of s44(3) of the 2016 Act is that an RRO can only be made in respect of the rent actually paid during the relevant 12-month period. The maximum rent that can be ordered for the 12-month period is therefore that which can be proved to have been paid during the relevant 12-month period identified above. £5,500.00 is therefore the maximum sum we could order to be repaid. What factors should be taken into account, including the matters in s.44(4)? 64.In Acheampong v Roman & Ors [2022] UKUT 239 (LC), Judge Cooke provided some practical guidance for the FTT when assessing the amount of rent to be repaid, which she considered would be consistent with the authorities. This was to:a. ascertain the whole of the rent for the relevant period;b. subtract any element of that sum that represents payment for utilities that only benefited the tenant, for example gas, electricity and internet access. It is for the landlord to supply evidence of these, but if precise figures are not available an experienced tribunal will be able to make an informed estimate. 14c. consider how serious this offence was, both compared to other types of offence in respect of which a rent repayment order may be made (and whose relative seriousness can be seen from the relevant maximum sentences on conviction) and compared to other examples of the same type of offence. What proportion of the rent (after deduction as above) is a fair reflection of the seriousness of this offence? That figure is then the starting point (in the sense that that term is used in criminal sentencing); it is the default penalty in the absence of any other factors but it may be higher or lower in light of the final step:d. consider whether any deduction from, or addition to, that figure should be made in the light of the other factors set out in section 44(4) 65.With that in mind, we consider that we should take account of the following factors: a. That the landlord has no previous convictions of an offence referred to in chapter 4 of the 2016 Act. b. The landlord is not a professional landlord. She only manages this Property and lacks the knowledge and experience generally found in experienced landlords of property portfolios. Her failure to understand the regulatory framework is therefore less culpable than that of a professional landlord. c. An offence under section 95 of the 2004 Act is not the most serious of the offences which could result in a rent repayment order, but we take account of the length of time the offence was committed, which was over three years. This ranks the offence as more serious than where the offence is committed for a relatively short period of time. d. The landlord does not claim to have any financial pressures, from which we have inferred that she can afford any financial penalty we impose.e. It is notable that the tenant accepts that he had a good relationship with his landlord (until the boiler issue), characterised by a degree of give and take.f. The Property had some issues when the NCC inspected in January 2021, in particular the broken boiler. Mr Amaning sought to engage in responsive repairs (not always very successfully). However, repairs and a prompt response to NCC’s demands in 2021 are obligations upon a landlord, deserving of no special credit. Such works necessarily are likely to include some improvements or 15 betterment, but this is not to the landlord’s credit, but an incident of being a landlord complying with her legal obligations. We do accept however that the pandemic would have impacted on the availability of building electrical and plumbing engineers at that time.g. A licence was granted without any suggestion that the Property was not suitable for occupation.h. NCC have not pursued the financial penalty against Dr Amaning, which would be surprising if they considered the offence to be of the higher order of seriousness.i. There are no significant issues with the tenant’s conduct. The landlord was always prepared to be flexible about rental payments so cannot now complain that the rent was not always paid on time. There are still 2 months arrears, which have rolled on since the boiler breakdown in January-March 2021, which the tenant has acknowledged. He is not seeking to dispute that the rent is due. We do not therefore find that the rental pattern or the outstanding arrears to be significant factors warranting a reduction. 66.Our view, balancing all of the above circumstances, is that we should exercise discretion to make an RRO and that the appropriate discount is 50%. We therefore order the 2nd Respondent to repay the Applicant rent in the sum of £2,750.00. Appeal 67.Any appeal against this decision must be made to the Upper Tribunal (Lands Chamber). Prior to making such an appeal the party appealing must apply, in writing, to this Tribunal for permission to appeal within 28 days of the date of issue of this decision (or, if applicable, within 28 days of any decision on a review or application to set aside) identifying the decision to which the appeal relates, stating the grounds on which that party intends to rely in the appeal, and stating the result sought by the party making the application.