Jared WilliamsApplicantBournemouth City CollegeRespondent
Before
Mr D Banfield FRICS (Chairman)Mr B W H Bourne MRICSMs Jayam DalalHB Properties & Letting Ltd for the ApplicantDate 7 November 2023
DECISION
The Tribunal makes a rent repayment order in the rounded sum of £3,070 for the rent paid for the 12 month period ending on 8 April 2022. The Tribunal also makes an order that the Respondent shall reimburse the Applicant with the hearing and application fees in the sum of £300.00. Both payments are to be made within 28 days of this Order Background[1]On 6 April 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 the total of £6500.00 which the Applicant says is equal to 52 weeks across the period from 1 January 2021 to 8 April 2022.[2]The Applicant stated his grounds for making the application at part 9 of the application form, however the typing in that section was not completely clear and unable to be read comprehensively. The Tribunal, therefore, in its directions dated 1 August 2023 requested that the Applicant provided further information so that it could establish which offence under Chapter 4 of Part 2, section 40 of the Housing and Planning Act 2016 the Applicant alleges has taken place.[3]On 9 August 2023 the Respondent acknowledged the application.[4]On 15 August 2023 the Applicant provided a further statement giving further information as to the offences it is alleged that the Respondent has committed, namely, violence for securing entry, harassment of occupiers and control or management of an unlicenced HMO.[5]The Tribunal’s directions of 18 August 2023 set out a timetable for the exchange of documents leading to an oral hearing. Law[6]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.[7]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.[8]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).[9]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.[10]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 c) whether the landlord has at any time been convicted of any of the specified offences. Evidence[11]References to the pdf page numbers in the hearing bundle are indicated by [*].[12]The Applicant’s statement [25] stated that;• Three offences are claimed, violence for securing entry & eviction, harassment of occupiers and control or management of an unlicensed HMO• This was an assured short hold tenancy from 20 October 2020. 5 people lived in the property at times sharing two rooms. The claim is for £6,500 being 52 weeks from 1st January 2021 – 8 April 2022• Harassment was serious consistent and aggressive. Including removal of personal property, turning off gas, restricting heating and removal of washing machine. Access to hot water and cooking facilities were removed by locking the kitchen door• All 5 tenants received a letter from Bournemouth City College telling them to leave by 15 March. He told the other tenants that it was not a legal notice of eviction after which they were continually harassed• On 15 February the property was visited by BCP council when many safety concerns were highlighted• On 17 March the washing machine and dryer were removed• On 23 March his bike was removed and placed in the back garden. It couldn’t be retrieved until the following morning• On 4 April the heating was stopped from working• On 8 April the locks were changed stopping access and unlawfully evicting him[13]In a statement from Mr Bengared of Bournemouth City College [28] it was denied that Mr Williams was evicted and that one month’s notice was given to him and the other tenants in accordance with their agreements. Alternative accommodation was offered and Mr Williams left with “mutual acceptance and understanding of the situation”.[14]Mr Williams’ bicycle had been moved as it was blocking a fire exit and the door to his room had not been changed.[15]A witness statement from Mr Saddigh, Accommodation Manager for Birmingham City College [30] confirmed that one month’s notice had been given and alternative accommodation offered. After 4 April 2022 Mr Williams was alone in the house running energy bills and on 8 April he visited, finding the room completely empty.[16]Mr Williams left owing £1,125 in rent and couldn’t have been evicted as the tenants were all offered alternative accommodation.[17]Attached to Mr Saddigh’s statement were a list of text messages regarding unpaid rent.[18]A witness statement from Mr Shaban [33] confirmed that he had taken up the offer of alternative accommodation and that the landlords had managed the property in a professional manner.[19]At page 34 is a document headed “Payment Receipt” in the sum of £1125 relating to rent from 1/2/2022 to 5/4/2022.[20]What is described as a “Holiday Letting Agreement” [35] between Bournemouth City College and the Applicant has an “end date” of 10/11/2020 and a payment receipt [39] is for the period from 20/10/2020 to 10/11/2020. A further “Holiday Letting Agreement” is for 11 November 2020 to 22 December 2020 at £125 per week [42].[21]A further agreement now described as a “Tenancy Agreement” indicates Moving in as 22/12/2020 and an end date of 9/4/2022.[52][22]From pages 57-59 is a record of the exchange of text messages between an unnamed person at BCC and Mr Williams regarding unpaid rent e.g. on 30 January 2022 “you have until Tuesday to sort out your rent overdue otherwise we have no choice but to change door lock and put your stuff into storage” and on 8 April 2022 “you better be gone by the time the owner is owner (sic) is there around 11.30 today as he was not happy you didn’t leave yesterday” and later the same day “Hakim why are you changing the locks to my room and the property? Why are you taking this route, I’ve repeatedly advised you to follow the current procedure and issue a section 21 notice”[23]A bank statement [61] was provided covering the period from 18 November 2020 to 23 December 2021 at amounts between £125 and £1,000 indicating that rent was paid at £125 per week albeit intermittently. The Hearing[24]The hearing was attended by the Applicant Mr Williams and Mr Bengared, managing director of Bournemouth City College.[25]The Tribunal referred to the sum claimed and said that the period of the claim was 52 weeks ending with the alleged illegal eviction. Mr Williams agreed that the sum paid during that period was £4,875.[26]Mr Williams gave evidence as in his written statement and in answer to the Tribunal said that the Local Authority had not taken any action following the visit on 15 February 2021.[27]He said that the statement from Mr Shaban was suspect as he had worked for the landlord.[28]He agreed that he had left owing £1,000 in unpaid rent but was uncertain what period this was in respect of.[29]Mr Bengared also gave evidence as in his written statement and also denied that Mr Shaban had worked for him, just that he came from the same country.[30]He confirmed that Mr Williams owed £1,000 and that a Section 21 Notice had not been served. He hadn’t forced Mr Williams to leave but when his room was found to be empty the external lock was changed as a matter of course.[31]The heating was not restricted or services turned off, the former had a cover over the thermostat to stop tampering and gas/electricity was provided by a prepaid meter, tenants advising when a top up was required. There was no additional charge for gas or electricity.[32]Mr Bengared denied that the kitchen door was locked or the washing machine and tumble dryer removed.[33]Mr Williams said that on 8 April he left for work as usual at around 9am with his back pack. When he returned, expecting to enter his room he found the outside door locked. The freeholder wouldn’t let him back in unless he paid £100. Decision[34]Mr Williams makes a number of allegations which Mr Bengared denies. For much of those allegations no independent evidence has been provided making it difficult to determine to the required standard of proof that the events occurred.[35]However, Mr Bengared has confirmed that a Section 21 Notice was not served and that the external lock was changed thereby denying Mr Williams access to his room which is sufficient to enable the Tribunal to make a determination.[36]The Tribunal therefore finds that the Applicant was unlawfully evicted from his room on 8 April 2022 contrary to the Protection from Eviction Act 1977.[37]Although HB Properties & Letting Ltd have been referred to as the Respondent it is clear that the landlord in this case is Bournemouth City College and as such are the proper Respondent and subject to any Order the Tribunal makes.[38]Turning now to the amount of the order the Tribunal reminded itself of the Upper Tribunal’s decision in Acheampong v Roman [2022] UKUT 239 (LC) where Judge Cooke gave the following guidance: a. “20. The following approach will ensure consistency with the authorities: Ascertain the whole of the rent for the relevant period. 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 and experienced tribunal will be able to make an informed estimate. Consider how serious this offence was, both compared to other types of offence in respect of which a rent repayment made by made (and whose relative seriousness can be seen from the relevant maximum sentences on conviction) and compared to other examples of the same 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. 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).[39]Following this guidance the whole of the rent for the period is £4,875. The Respondent has not provided details of costs incurred in providing services and the Tribunal is left with making an estimate of a reasonable sum. In the absence of any guidance it determines that 10% should be deducted from the rent paid leaving £4,387.50.[40]Mr Williams objected to making a deduction but the Tribunal is not persuaded that it should not follow Judge Cooke’s guidance given above.[41]In considering the Respondent’s conduct the Tribunal has found that the Applicant was unlawfully evicted but has not had evidence in support of the other allegations. With regard to the Applicant the only bad conduct was the arrears of rent. The Tribunal noted that there was some confusion as to the sum owing with Mr Saddigh’s statement referring to £1,125. However, the document at [34] is confusingly headed “Payment Receipt” which in common parlance suggests that the sum has been paid. In addition both Mr Bengared and Mr Williams agreed that the amount of unpaid rent was £1,000 although neither was able to indicate the period to which the debt referred.[42]Taking all of the above into account we determine that the percentage to be the subject of the Order is 70% of £4,387.50 and accordingly, the Tribunal makes a rent repayment order in the rounded sum of £3,070 for the rent paid for the 12 month period ending on 8 April 2022.[43]The Tribunal makes an order that the Respondent shall within 28 days of this Order reimburse the Applicant with the hearing and application fees in the sum of £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.[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 penalty 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?(iv) What is the maximum amount that can be ordered under section 44(3) of the Act?(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.