Case No CHI/00HB/HMF/2023/0020-22-ROBERTSON-ROAD-BRISTOL-BS5-6JY
Between
William John Osbourne Daniel Enrique CallejoApplicantElite Properties Bristol LtdRespondent
Before
D Banfield FRICS, Regional SurveyorC Davies FRICSMrs J PlayfairRepresent Law Ltd for the ApplicantDate 31 January 2024Property: 22 Robertson Road, Bristol, BS5 6JYType of application: Application for a rent repayment order by Tenant Sections 40, 41, 42, 43 & 45 of the Housing and Planning Act 2016
DECISION
T he T ribunal makes a rent repayment ord er in the rounded sum of £ 6,160 .00 for the rent paid for the 12 month period ending on 30 June 2022. The Tribunal makes an order that the Respondent shall within 28 days of this Order reimburse the Applicant with the heari ng and applic ation fees in the sum of £ 2 Background[1]On 29 June 2023, the Tribunal received an application under section 41 of the Housing and Planning Act 2016 (the Act) from the Applicant tenant for a rent repayment order (RRO) against the Respondent landlord. The amount claimed is £7,800.00 (£650.00 per month) for the period 30 June 2021 to 30 June 2022.[2]The Applicant states that the property in question was licensed as an additional HMO during the period of the Applicants’ occupation which permitted 4 occupiers but the property was occupied by 5 or more persons in 2 or more households.[3]The Applicant provided its’ grounds for the application in the additional statement along with supporting documentation. A copy of an email chain has been provided between the Applicant’s representative and Bristol City Council stating that a licence was issued on 29 November 2017, the licence permitted 4 occupants and expired on 28 November 2022. It also states that a licence application for 5 occupants was submitted on 6 April 2023.[4]The Tribunal sent the Respondent a copy of the application with supporting documents.[5]The Tribunal will decide(a) whether to make a rent repayment order and, if so,(b) for what amount.[6]Directions were issued on 21 November 2023 setting a timetable for the exchange of documents preparatory to a final hearing on 25 January 2024.[7]Paragraph 18 of those Directions required the Applicant to submit the bundle for the hearing by 12 January 2024.[8]Paragraph 20 stated ‘If the hearing bundle is not sent to the Tribunal by the said date or not in the required format, the Application will be struck out without further notice.’[9]The hearing bundle was not received by the Tribunal by the said date in accordance with the Directions and struck out in accordance with Rule 9 3 (a) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.[10]Following receipt of the hearing bundle an application to reinstate the application was granted and the arranged hearing proceeded on 25 January 2024.[11]References to page numbers in the bundle are shown as [*][12]Prior to the hearing the Tribunal examined the Tribunal’s correspondence folder and satisfied itself that documents sent to the Respondent had used the correct email address. 3 Law[13]A rent repayment order is an order of the Tribunal requiring the landlord under a tenancy of housing in England to repay an amount of rent paid by a tenant. Such an order may only be made where the landlord has committed one of the offences specified in section 40(3) of the 2016 Act. A list of those offences was included in the Directions issued by the Tribunal and is at the end of this decision.[14]Where the offence in question was committed on or after 6 April 2018, the relevant law concerning rent repayment orders is to be found in sections 40 – 52 of the 2016 Act. Section 41(2) provides that a tenant may apply for a rent repayment order only if: a) the offence relates to housing that, at the time of the offence, was let to the tenant, and b) the offence was committed in the period of 12 months ending with the day on which the application is made.[15]Section 43 of the 2016 Act provides that, if a tenant makes such an application, the Tribunal may make a rent repayment order if satisfied, beyond reasonable doubt, that the landlord has committed one of the offences specified in section 40(3) (whether or not the landlord has been convicted).[16]Where the Tribunal decides to make a rent repayment order in favour of a tenant, it must go on to determine the amount of that order in accordance with section 44 of the 2016 Act. If the order is made on the ground that the landlord has committed an offence under the Protection from Eviction Act 1977, the amount must relate to rent paid in respect of the period of 12 months ending with the date of the offence (section 44(2)). However, by virtue of section 44(3), the amount that the landlord may be required to repay must not exceed: a) the rent paid in respect of the period in question, less b) any relevant award of universal credit paid (to any person) in respect of rent under the tenancy during that period.[17]In certain circumstances (which do not apply in this case) the amount of the rent repayment order must be the maximum amount found by applying the above principles. The Tribunal otherwise has a discretion as to the amount of the order. However, section 44(4) requires that the Tribunal must take particular account of the following factors when exercising that discretion: a) the conduct of the landlord and the tenant, b) the financial circumstances of the landlord, and 4 c) whether the landlord has at any time been convicted of any of the specified offences. The Hearing[1]The hearing took placeThe hearing took place at Havant Justice at Havant Justice Centre with Mr DavCentre with Mr Davies and ies and Ms PlayfaMs Playfair ir together with the parties together with the parties attattending remotelyending remotely.. In attendanceIn attendance was Mr was Mr Clark Barrett Clark Barrett of Represent Lawof Represent Law Ltd, Mr Ltd, Mr WWilliam illiam Osbourne,Osbourne, Mr Mr Daniel Callejo and Ms Laura MateosDaniel Callejo and Ms Laura Mateos..[2]Mr Barrett referred to his skeleton argument aMr Barrett referred to his skeleton argument and nd said that thesaid that the landlord landlord had contravened had contravened S.S. 7272(1) (1) of of thethe Housing Act 2004Housing Act 2004 by letting an HMO to by letting an HMO to more occupmore occupants than the licence ants than the licence permittedpermitted..[3]In this In this case there had beecase there had been n sevenseven occupants whereas occupants whereas thethe licence was for licence was for four.four.[4]He He confirmed that the Applicants confirmed that the Applicants had occupied the room from 18 had occupied the room from 18 August 2020 until 30August 2020 until 30 June 2022 at a rent of £650 per calendar month. June 2022 at a rent of £650 per calendar month. Throughout thThroughout that period the property wasat period the property was licensed as an HMO by Bristol licensed as an HMO by Bristol City Council for occupation by 4 personsCity Council for occupation by 4 persons and tand this was confirmed his was confirmed by the by the Council Council in correspondence.[74]in correspondence.[74][5]The property was not in good orderThe property was not in good order and had and had problems with the problems with the electrical supply, heating breakelectrical supply, heating breakdowdowns and rat/mins and rat/mice infestation. ce infestation. Evidence given by Mr Evidence given by Mr OsbourneOsbourne referred to exposed wires running at referred to exposed wires running at floor level through the kitchen and providing a supply to the boiler. floor level through the kitchen and providing a supply to the boiler. Mr Mr OsbourneOsbourne had seehad seenn rats anrats and mice ad mice and one nd one dead dead rat wasrat was found. [25]found. [25][6]Ms Mateos said that sheMs Mateos said that she had bhad brought the matter to rought the matter to thethe landlordlandlord’’s s attention but that no action had been takenattention but that no action had been taken..[7]Mr Mr OsbourneOsbourne was able to confirm that the list of was able to confirm that the list of 7 7 tenants on Ms tenants on Ms MaMatteoseos’’ message message of 19 May 2021 was accof 19 May 2021 was accururate and identified the rooms ate and identified the rooms that they occupied. It wthat they occupied. It was confirmedas confirmed that all occupied thethat all occupied the propproperty full erty full time time althoughalthough Mr Shagari Mr Shagari visited his family in Nigeria for 20 days or so.visited his family in Nigeria for 20 days or so.[8]Mr Mr OsbourneOsbourne described the accommodation as a terraced house with 2 described the accommodation as a terraced house with 2 bedrbedroooms, a koms, a kitchen itchen and bathroom on and bathroom on thethe ground floor ground floor with with 3 3 bedrooms and a bathbedrooms and a bathroom room oon the first.n the first. There was a garden at the rear.There was a garden at the rear.[9]Mr Mr OsbourneOsbourne and Ms Mateos confirmed that theand Ms Mateos confirmed that the rent they paid rent they paid included included allall costs and that this included electricity, costs and that this included electricity, gas, watergas, water andand broadbandbroadband..[10]Mr Mr OsbourneOsbourne said that said that the deposit they had paid had been returnedthe deposit they had paid had been returned but but that it had been confirmed that it had not been placed in one of tthat it had been confirmed that it had not been placed in one of the he Tenancy Deposit STenancy Deposit Scchemeshemes as required. The Tribunal also noted that as required. The Tribunal also noted that when a tenancy was first granted iwhen a tenancy was first granted it had t had purportepurportedd to be to be a Non Assured a Non Assured Tenancy, a device sometimes employed to avoid Tenancy, a device sometimes employed to avoid the the obligation placeobligation placedd on parties to an Assured Shorthold on parties to an Assured Shorthold Tenancy.Tenancy. 5[11]Mr Barrett Mr Barrett referred to the Upper Tribunal case of referred to the Upper Tribunal case of Williams v Parmar Williams v Parmar [2021] UKUT 0244 (LC)[2021] UKUT 0244 (LC) in in which which it was it was determineddetermined that that tthe tribunal he tribunal could, in an appropriate case, order a lower than maximum acould, in an appropriate case, order a lower than maximum amount of mount of rent rent repayment ifrepayment if the landlord's offence was relatively low in the scale the landlord's offence was relatively low in the scale of seriousnessof seriousness..[12]In this case however thIn this case however theerere was a high level of culpability. The was a high level of culpability. The accommodation was inaccommodation was in ppootentially tentially dadangerous ngerous conditioncondition due to the due to the wiring and wiring and verminvermin andand this wasthis was a corporate lana corporate landlord who should have dlord who should have been been awaraware of itse of its’’ responsibilitiesresponsibilities. Other than a deduction for . Other than a deduction for the cost the cost of of services provided the Tribunal should award the maximservices provided the Tribunal should award the maximumum.. Decision Decision[13]TThe Tribunal thanks he Tribunal thanks Mr Barrett Mr Barrett andand thethe Applicants for the Applicants for the clear and clear and helpful evidence helpful evidence and submissions. It is regand submissions. It is regretted that the Respondent retted that the Respondent was not present to challenge the evidence but that was a matter of their was not present to challenge the evidence but that was a matter of their choice.choice.[14]The Tribunal is satisfied that it has The Tribunal is satisfied that it has sufficient esufficient evidence to determine vidence to determine that that an offence han offence has been committed as been committed underunder Section 72Section 72((11) of t) of the Housing he Housing Act 2004Act 2004 and that a Rent Repayment Order should be made.and that a Rent Repayment Order should be made.[15]Turning now to the amount of the orderTurning now to the amount of the order;; the Tribunal reminded itself the Tribunal reminded itself of the Upperof the Upper Tribunal’s decTribunal’s decision in Acheampision in Acheampong v Roman [2022] ong v Roman [2022] UKUT 239 (LCUKUT 239 (LC) where Judge Cooke gave the following) where Judge Cooke gave the following guidanceguidance at at paragraph 20paragraph 20: : ““The following approach will ensuThe following approach will ensure consisre consistency with the tency with the authorities: authorities:a. a. Ascertain the whole of the rent for the relevant period. Ascertain the whole of the rent for the relevant period.b. b. SubtracSubtract ant any element of that sum that repry element of that sum that represents esents payment for payment for utilities thutilities that only benefited the tenant, for examat only benefited the tenant, for example ple gas, electricity and internet access. It is forgas, electricity and internet access. It is for the landthe landlord to lord to supply evidence of these, but if precise figures are not available supply evidence of these, but if precise figures are not available and experienced tand experienced triburibunal will be able to make an infnal will be able to make an informed ormed estimate. estimate.c. c. ConConsider how sesider how serious this offence was, both compared rious this offence was, both compared to to other types of offence in respect of which a renother types of offence in respect of which a rent repaymet repayment made nt made by made (and whose relative seriousness can be seen from the by made (and whose relative seriousness can be seen from the relevant maximum serelevant maximum sentences ntences on conviction) and compared to on conviction) and compared to other examples of tother examples of the same offehe same offence. What proportion of the rent nce. What proportion of the rent (afte(after deduction as above) is a fair reflection of the sr deduction as above) is a fair reflection of the seriousneseriousness of s of this offence? That figure is then the starting point (in the sense this offence? That figure is then the starting point (in the sense that that term ithat that term is used is used in criminal sentencing); it is tn criminal sentencing); it is the default he default penalty penalty in the absenin the absence of any other factors, but it may bece of any other factors, but it may be higher higher or lower in light of the final step. or lower in light of the final step. d d.. ConsidConsider whetheer whether any deduction from, or addition, to that r any deduction from, or addition, to that figure should be made in the light of thefigure should be made in the light of the other factoother factors set out in rs set out in section 44(4).section 44(4). 6[16]FoFollowing this guidanllowing this guidance the wholece the whole of the rent for the period is £of the rent for the period is £7,8007,800.. The RespondentThe Respondent has not provided details of has not provided details of costs incurred icosts incurred in providing n providing services services and the Tribunal is left with makingand the Tribunal is left with making anan estimate of a estimate of a reasonablreasonable sume sum which it determines as folwhich it determines as follows;lows; Gas and Elec Gas and Electricitytricity £5,500£5,500.00 .00 papa Water Water £450.00 pa£450.00 pa.. Internet Internet £24£240.000.00 papa Council Tax Council Tax £2,000.00£2,000.00 Total Total £8,190.00 pa £8,190.00 pa oror£1,638 per room £1,638 per room per per annumannum[17]Deducting £1,638 from the total Deducting £1,638 from the total rent paid leaves the sum of £rent paid leaves the sum of £6,1626,162 as as tthe maximum amount of any Order to be made.he maximum amount of any Order to be made.[18]TThe The Tribunal has considered whether any deduction should beribunal has considered whether any deduction should be mademade and and decided that it should not. The decided that it should not. The state of repairstate of repair, excee, exceedding the ing the permitted permitted number of occupants by 3 people and number of occupants by 3 people and thethe use of an incorrect use of an incorrect tenancy agrtenancy agreement eement leadleads the Tribunal to consider that this is a serious s the Tribunal to consider that this is a serious offence that should receive the maximuoffence that should receive the maximum penam penalty.lty.[19]TaTaking all of the aking all of the above into accobove into account unt The Tribunal makes The Tribunal makes a rent a rent repayment ordrepayment order in the er in the rounded rounded sum of £sum of £6,1606,160.00.00 for the for the rent paid for the 12 month rent paid for the 12 month period period ending on ending on 30 June30 June 2022.2022.[20]The Tribunal makes an order thatThe Tribunal makes an order that the Respondent shall the Respondent shall withinwithin 28 28 days ofdays of this Ordethis Order reimburse the Applicant with the r reimburse the Applicant with the hearing and applichearing and application fees in the sum ofation fees in the sum of £300.00.£300.00. RIGHTS OF APPEAL[1]A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application by email to rpsouthern@justice.gov.uk to the First-tier Tribunal at the Regional office which has been dealing with the case.[2]The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.[3]If the person wishing to appeal does not comply with the 28 day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed. 7[4]The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking. Explanation of the Tribunal’s jurisdiction to make a Rent Repayment Order[1]The issues for the Tribunal to consider include: Whether the Tribunal is satisfied beyond a reasonable doubt that the landlord has committed one or more of the following offences: Act Section General description of offence 1 Criminal Law Act 1977 s.6(1) violence for securing entry 2 Protection from Eviction Act 1977 s.1(2), (3) or (3A) unlawful eviction or harassment of occupiers 3 Housing Act 2004 s.30(1) failure to comply with improvement notice 4 Housing Act 2004 s.32(1) failure to comply with prohibition order etc. 5 Housing Act 2004 s.72(1) control or management of unlicensed HMO 6 Housing Act 2004 s.95(1) control or management of unlicensed house 7 Housing and Planning Act 2016 s.21 breach of banning order Or has a financial penalty1 been imposed in respect of the offence?(i) What was the date of the offence/financial penalty?(ii) Was the offence committed in the period of 12 months ending with the day on which the application made?(iii) What is the applicable twelve-month period?2(iv) What is the maximum amount that can be ordered under section 44(3) of the Act? 1 s.46 (2) (b): for which there is no prospect of appeal. 2 s.45(2): for offences 1 or 2, this is the period of 12 months ending with the date of the offence; or for offences 3, 4, 5, 6 or 7, this is a period, not exceeding 12 months, during which the landlord was committing the offence. 8(v) Should the tribunal reduce the maximum amount it could order, in particular because of: (a) The conduct of the landlord? (b) The conduct of the tenant? (c) The financial circumstances of the landlord? (d) Whether the landlord has been convicted of an offence listed above at any time? (e) Any other factors?[2]The parties are referred to The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 for guidance on how the application will be dealt with. Important Note: Tribunal cases and criminal proceedings If an allegation is being made that a person has committed a criminal offence, that person should understand that any admission or finding by the Tribunal may be used in a subsequent prosecution. For this reason, he or she may wish to seek legal advice before making any comment within these proceedings.