Flat A, 1 Orpington Gardens, Edmonton, London, N18 1LW LON/00AK/HMG/2024/0022

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case No LON/00AK/HMG/2024/0022

Between

Leena Zachariah Simon RajuApplicant

Nonyelu Chukwudozie OkoyeRespondent

Before

Mr O Dowty MRICS

Ms R Kershaw BSc

Justice for Tenants Ref: 23871 for the Applicant

In person Application for a rent repayment order by tenant for the Respondent

Venue 10 Alfred Place, London WC1E 7LR

Date 3 December 2024

Property: London, N18 1LW Leena Zachariah

Type of application: Sections 40, 41, 43, & 44 of the Housing and Planning Act 2016

DECISION

[1]The Tribunal finds that the respondent committed an offence under section 95(1) of the Housing Act 2004 without reasonable excuse, and continued to commit that offence until 30 January 2024.

[2]The Tribunal makes a Rent Repayment Order in favour of the applicants in the sum of £8,884.95.

[3]The Tribunal orders the repayment of the hearing and application fees, a total of £320.

[4]The reasons for the Tribunal’s decisions are given below. Background

[5]The application is made jointly by Ms Leena Zachariah and Mr Simon Raju, who are husband and wife, and who occupied (as joint tenants) Flat A, 1 Orpington Gardens, Edmonton, London, N18 1LW – a flat, in the London Borough of Enfield, that was created by a conversion carried out by the respondent and his family in 2018.

[6]The breach giving rise to the application for a Rent Repayment Order (RRO) occurred, they said, at least during the period 1 March 2022 to 29 January 2023, during which time the applicants were joint tenants at the property. The applicants therefore applied for a RRO for the entire rent paid for the period 2 March 2022 to 29 January 2023, to the sum of £15,288.

[7]The applicants left the property after 30 January 2023, but applied for a RRO for the period above as it was common ground the landlord ceased committing the offence of which the applicants accused him (were one committed) on 30 January 2023 at the latest.

[8]The Tribunal issued directions on 19 April 2024 (which were subsequently varied on 5 June 2024), and a face-to-face hearing was arranged in this matter. We held that hearing on 26 September 2024, at which both the applicants and the respondent were present, along with the applicants’ representative Mr Elliot of Justice for Tenants (the respondent representing himself). The alleged offence

[9]The respondent has not been convicted of an offence. Instead, the applicants allege as follows: This application is being made under s.41 of the Housing and Planning Act 2016 for the following offence:

[1]Having control of, or managing, an unlicensed house, under Part 3 s.95(1) Housing Act 2004 which is an offence under s40(3) of the Housing and Planning Act 2016.

[2]The Housing Act 2004 Part 3 s.95(1) states: (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.

[3]The Housing Act 2004 Part 3 s.85(1) states: 5Requirement for Part 3 houses to be licensed (1)Every Part 3 house must be licensed under this Part unless— (a)it is an HMO to which Part 2 applies (see section 55(2)), or (b)a temporary exemption notice is in force in relation to it under section 86, or (c)a management order is in force in relation to it under Chapter 1 or 2 of Part 4.

[10]The applicants averred that this offence was committed from the inception of their tenancy, until the landlord applied for a selective licence from the council on 30 January 2023. They applied for a Rent Repayment Order (RRO) to the sum of all of the rent paid for the period 2 March 2022 to 29 January 2023.

[11]The relevant selective licensing scheme was one made under Section 80 of the Housing Act 2004 (Part 3 of that Act) by the London Borough of Enfield, which came into effect for a 5 year period from 1 September 2021. There is no dispute that the property, now, is covered by that scheme – and indeed it is presently licensed under it – however, there is some dispute as to whether that was always the case which we discuss below in this decision.

[12]At the start of the hearing, we had a variety of procedural issues to consider. First, the applicants had requested a Malayalam interpreter (at quite short notice) before the hearing, but one was not available. That interpreter had been requested for one of the applicants, Ms Zachariah. We made enquiries about whether the applicants were happy to proceed without the interpreter, or whether they wished to apply for a postponement, and they indicated they wished the hearing to go ahead.

[13]Ms Zachariah, later in the hearing, gave evidence on what were fairly straightforward matters – and, whilst a few more intricately worded questions required a bit of simplification, she was able to answer the questions put to her and appeared as comfortable in doing so as any inexperienced witness might. It is worth noting, regarding her oral evidence, that the applicant’s representative sought to expand through examination in chief the scope of the evidence Ms Zachariah was giving – we felt - significantly beyond that which was in the witness statement provided. In particular, despite the witness statement indicating, we thought quite clearly, that there were no real issues the tenant experienced during the tenancy – the applicant’s representative sought to ask questions to demonstrate the exact opposite of that. We, as a Tribunal, are flexible about our procedures, and do not normally intervene too much in matters such as this – but a large part of the purpose of requiring witness statements be provided in advance of giving oral evidence is ultimately to give an outline of what will likely be said, so that the other parties to a dispute might consider it in overview in advance. If it were the case that there was some minor expansion that would be, of course, a matter of common practice (and to some extent this happened with the respondent’s later evidence, albeit that was itself bundled up in the usual melting pot of part advocacy and part evidence of unrepresented litigants in person) – but it appeared to us that the intention was to turn that evidence completely on its head, and expand it greatly beyond the scope that was set out in the witness statement, and that the respondent might have had a fair chance to prepare for.

[14]Also at the start of the hearing, the respondent sought to make an application to strike the applicants’ case out – in renewal of an application to do so along similar grounds which had already been rejected by Judge Dutton in a previous, interlocutory, decision dated 7 August 2024 (in which Judge Dutton had specifically provided that the respondent might renew his application to strike out at the hearing).

[15]The respondent’s application to strike out was on two bases, first – the applicant’s application to this Tribunal had not been made within 12 months of the offence being committed. Second, the respondent had a defence to the alleged offence as it hadn’t been possible for him to comply with the law.

[16]As regards the second point (that the respondent had a defence to the alleged offence), we discussed with the respondent whether he did in fact wish to pursue that ground of his application to strike out, given it more appeared to be the substance of the issue itself rather than a matter for a striking out. The respondent considered this, and indicated that he did not wish to proceed with this ground in relation to the striking out application.

[17]As regards whether the application was made within 12 months of the offence being committed, the applicant’s point was simple. The application to this Tribunal was made on 28 January 2024, and the respondent had applied for a selective licence at the property (and therefore ceased to commit an offence, pursuant to Section 95(3)(b) of The Housing Act 2004 (‘the Act’)) on 30 January 2023. However, payment of the application fee was not made at the time the application was submitted, and was only made, the respondent averred, on 19th March 2024. The respondent submitted that payment of the associated fee was integral to an application, and that it should at least have been paid within 14 days. Rule 11(1) of the Tribunal’s Procedure Rules (the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013), said that the Tribunal could not proceed with an application until payment was made – and if the Tribunal couldn’t proceed with an application it wasn’t before the Tribunal properly, and accordingly hadn’t been properly made. The respondent was not aware of any specific authority otherwise to support his point.

[18]In reply, Mr Elliot, for the applicants, submitted that he had not anticipated the point being raised again – given Judge Dutton’s previous decision, with which he agreed. That decision, he averred and indeed we could see from it ourselves, was – essentially - that the making of an application and the paying of the fee for it are two separate things. The applicant’s representative referred to an apparent decision of this Tribunal relating to 11 Brazil Street, in which he averred that Judge Kelly had considered the matter – but he was somewhat on the back foot as he had not anticipated the application being renewed. That decision was not in the bundle, and it had not been provided to the respondent.

[19]We considered the matter at the time, and gave our decision regarding it orally, with these present written reasons to follow, as it was a procedural issue upon which the remainder of the hearing depended. That decision was that we would not strike the application out. In brief, we agree with the previous decision in this matter of Judge Dutton. We see no reason that an application cannot be made, and then payment made later – and indeed the Tribunal’s application form allows for an applicant to request payment details are provided to them. We note the respondent’s point about Rule 11(1) of the Tribunal’s procedure rules, which says as follows:

[1]In any case where a fee is payable under an order made under section 42 of the 2007 Act (fees), the Tribunal must not proceed further with the case until the fee is paid.

[20]We do not read that as being supportive of the respondent’s case, and in fact it appears to us that it indicates he is wrong. Rule 11(1) says that “an application cannot proceed until payment is made”, but that very language indicates that such an application is an application – it is just that it cannot proceed until payment is made. Accordingly, for the reasons given above, we did not grant the respondent’s striking out request.

[21]Another procedural issue was the fact that the applicant had provided their ‘skeleton argument’ (in fact, two documents comprising an 18 page skeleton with a 186 page ‘authorities bundle’), at around 6pm the night before the hearing, and therefore significantly late. The applicant averred that there had been issues at the office in relation to the case, hence the delay. There was nothing new in the skeleton, Mr Elliot averred – though in fact the skeleton did contain new authorities which had not been provided.

[22]For his part, the respondent indicated that he had been taken aback by the skeleton argument, and had not had the opportunity to consider its contents fully due to the short time.

[23]We agree with the respondent about the skeleton argument, and again gave our decision to that effect orally with these written reasons to follow. It was provided at far too short notice, given its length. It clearly would not have been procedurally fair to the respondent to allow a lengthy skeleton, which introduced new authorities, to be considered having been provided at such short notice, as the respondent had not had proper time to consider its contents – and frankly neither had the Tribunal panel. The substance of the hearing

[24]Throughout the hearing, the respondent sought - as in fairness is their right - to muddy the waters of the application. In addition to a number of points they had raised in advance, they added new ones as the hearing went along. Was the property let at rack rent? What is a rack rent? Was the copy tenancy agreement provided by the applicants a genuine copy given it wasn't signed? It was for the applicants to show that it was - and the respondent had somehow only just seen that it wasn't signed immediately at the hearing, and couldn't therefore verify its accuracy against his copy.

[25]Most of these attempts were fairly transparent, almost exclusively of little relevance to the matter at hand and - frankly - most if not all of them were simply not credible in the first place.

[26]The respondent's arguments were spread out across the hearing in a fairly random order. They can, however, be summarised as follows.

[27]First, the respondent was not the landlord (something both parties used interchangeably with the concept of a person having control over a property throughout the hearing), his wife was, and he was only helping out as a good husband — or perhaps even someone else entirely was, it was for the applicants to prove that he was the landlord. Second, the property address wasn't registered on the council's systems. Accordingly, it cannot have been subject to selective licensing prior to it being so registered. Third, even if the respondent were the landlord - and the property was subject to selective licensing before it was registered - he had a reasonable excuse. He had been away from the country working as a missionary, his wife had been in Canada, and prior to letting the property he had sought the advice of a letting agent who had not told him about the need for landlord licensing. When he had found out the property needed a licence, he and his wife sought to apply for one but were prevented from doing so for some time as the property wasn't registered with the council. Was the Respondent the Landlord?

[28]The issue of whether the respondent was the landlord of the premises was a matter of great discussion at the hearing, but in fact it is rapidly disposed of as an issue. Both parties used the term landlord to mean both that the respondent was the landlord legalistically, and that he was the person having control of the property. Whilst in some cases there might be a difference between these two concepts, this is not the case here – there can be little dispute that the respondent is the landlord in the strictly traditional sense of the word, being the person who receives rent for the property and the person named on the tenancy agreement dated 1 March 2022 provided by the applicants (which, whilst noting Mr Okoye’s alleged doubts as to the veracity of it given its being an unsigned version, we see no reason to believe is materially false as regards the tenancy at the property), and the only real question is whether the respondent is the ‘landlord’ in the sense that he is “the person having control” over the property for the purposes of the Housing Act 2004.

[29]The definition of “the person having control” is to be found in Section 263 of the Housing Act 2004: (1) In this Act “person having control”, in relation to premises, means (unless the context otherwise requires) the person who receives the rack-rent of the premises (whether on his own account or as agent or trustee of another person), or who would so receive it if the premises were let at a rack-rent. (2)In subsection (1) “rack-rent” means a rent which is not less than two-thirds of the full net annual value of the premises. (3)In this Act “person managing” means, in relation to premises, the person who, being an owner or lessee of the premises— (a)receives (whether directly or through an agent or trustee) rents or other payments from— (i)in the case of a house in multiple occupation, persons who are in occupation as tenants or licensees of parts of the premises; and (ii)in the case of a house to which Part 3 applies (see section 79(2)), persons who are in occupation as tenants or licensees of parts of the premises, or of the whole of the premises; or (b)would so receive those rents or other payments but for having entered into an arrangement (whether in pursuance of a court order or otherwise) with another person who is not an owner or lessee of the premises by virtue of which that other person receives the rents or other payments; and includes, where those rents or other payments are received through another person as agent or trustee, that other person.

[30]If the respondent matches that definition, then he is the person having control. The respondent accepted that he received the rent payments at the property, but argued that it needed to be proved that the property is let at a rack rent - and indeed what a rack rent is. But it doesn't. The section makes it entirely clear that the landlord is either the person who receives the rack rent, or the person who would if it were rack rented. Accordingly, even were it not rack rented, the respondent - being the person collecting rent at the property - would be the person who would receive rack rent were it to be let at it, and accordingly the respondent is the person having control of the property.

[31]It is not necessary, therefore, to consider the other arguments advanced concerning whether the property was in fact rack rented, or whether the respondent's wife was the landlord (including the frankly baffling, and seemingly ever evolving, submissions around who paid the bills at the property that came as part of that) - however for completeness we note that we simply didn't find the latter suggestion credible in any event. One of the landlord's arguments in relation to establishing a defence of reasonable excuse was that he had sought advice from a letting agent prior to letting the property (albeit through the auspices of his daughter as he was out of the country), and - rather tellingly - when giving evidence regarding his assertion that the tenant had left the property in a poor condition (something we will turn to later in this decision) he averred that, on seeing the property's condition he had decided that he would not renew their tenancy.

[32]Neither of those things appear to be consistent with the suggestion that it is incorrect to regard the respondent as the landlord, or the person having control of the premises. That being said, there does appear, as is not uncommon, to be some overlap between the roles of the respondent and his wife in relation to the property, which we are aware is apparently registered at the land registry in her name - and indeed the licence now held for the property is in her name, despite the respondent receiving the rent.

[33]Whilst it is unnecessary for our determination - as we have found the respondent was a “person having control” of the premises - we note for completeness that the applicants had suggested that the applicant might also have been a “person managing” the property. However, as is set out in paragraph [29] above, this would require the respondent to be an owner or lessee of the subject property. This was not something which was argued particularly at the hearing, and the land registry entry provides the respondent’s wife Isobel Okoye as being the proprietor (something the respondent pointed out at the hearing). On the evidence provided to us, we do not think that the applicant has shown such that we can be sure to the criminal standard of proof that the respondent is an owner or lessee of the premises, and therefore they have not shown that he is a “person managing” the premises for the purposes of the Housing Act 2004. Was the property subject to selective licensing when it wasn’t registered on the council’s systems?

[34]As regards the second argument, that the property couldn't have been subject to selective licensing before the address was registered on the council's system, this is simply wrong and was offered without authority. As is set out in the Notice of Designations of Areas for Selective Licensing of the London Borough of Enfield (which set out the selective licensing scheme) provided as Exhibit I in the applicant’s bundle selective licensing extends to all privately rented properties in an area. There is no mention at all of whether properties are registered or not as addresses with the council – and it simply isn’t relevant. That notice itself says in the section headed “EFFECT OF THE DESIGNATION”:

[6]Subject to sub paragraphs 5(a) to (f) every house in the area specified in paragraph 4 that is occupied under a tenancy or licence shall be required to be licensed under section 85 of the Act.

[35]This is also set out in section 79(1) and (2) of the Housing Act 2004, which provides that: (1) This Part provides for houses to be licensed by local housing authorities where— (a) they are houses to which this Part applies (see subsection (2)), and (b) they are required to be licensed under this Part (see section 85(1)).

[2]This Part applies to a house if—(a) it is in an area that is for the time being designated under section 80 as subject to selective licensing, and

(b) the whole of it is occupied either— (i) under a single tenancy or licence that is not an exempt tenancy or licence under subsection (3) or (4), or (ii) under two or more tenancies or licences in respect of different dwellings contained in it, none of which is an exempt tenancy or licence under subsection (3) or (4). …

[36]We established that the respondent did not dispute that the property was inside the boundary of the selective licensing scheme area - and indeed it is licensed under that scheme now. It was, and is, therefore subject to selective licensing.

[37]We note that the respondent says in his witness statement that he was told by the council that selective licensing only applies to properties which were registered on the council’s systems, but if they did say that it was simply incorrect in law, and - in the context of the credibility of much of the respondent’s evidence and such a statement being at odds with the council’s own public notice - it is difficult to see that it happened. The email chains provided between the respondent’s wife Ms Isobel Okoye and the council’s officers might have assisted in evidencing this were they complete, however there are clear gaps in those chains, and we don’t accept the respondent’s explanation of this at the hearing that those gaps could be explained by phone calls; particularly as, in an email dated 27 January 2023 following one of those gaps – the respondent’s wife said “thank you for your email. I will apply for the license”, despite the previous email in that chain being dated 6 October 2022 and not being capable of giving rise to such a reply. Reasonable Excuse Defence

[38]The offence of which the respondent is accused is to be found in Section 95(1) of the Housing Act 2004, which provides that: (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.

[39]For the reasons given above, we are satisfied so that we are sure (to the criminal standard of proof) that the respondent was a person having control of the subject property for the purposes of the Housing Act 2004, and that it was subject to selective licensing under Part 3 of that Act. However, Section 95(4) provides that:

[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) for having control of or managing the house in the circumstances mentioned in subsection (1), or

(b) for failing to comply with the condition, as the case may be.

[41]The respondent averred that he had such a reasonable excuse, for a variety of different reasons.

[42]We shall address first the suggestion that the respondent had a reasonable excuse, in whole or in part, because he had sought the advice of a letting agent prior to letting the property, and was not told by them about the licensing requirement - which again is rapidly disposed of as an issue. This is not a case where the respondent had instructed a reputable firm on a formal, written, contractual basis. Instead, the sum total of the respondent's submission in this regard was that he had (indirectly - as his daughter had in fact, he averred, engaged in the relevant discussion while he was out of the country) contacted a local letting agent to advise him on what he needed to do to let the property, and also instructed that agent to find a tenant and handle that process, and the letting agent didn't mention the need for a licence. He had therefore taken from that that he didn't need one. No reasonable landlord, acting reasonably, could possibly think they had delegated their responsibility to acquire a licence to that letting agent, and nor would they blindly assume that the property didn't require a licence because the letting agent hadn't mentioned it. There wasn't even a written contract between them of any sort. Accordingly, we find that this is not, and is not capable of forming a meaningful part of, a reasonable excuse defence.

[43]Having dispensed with, frankly, the more trivial matters raised - we now turn to the more weighty suggestion in this matter: that the respondent had a reasonable excuse defence because he was unaware of the licensing scheme, had not been told about it, and when he did find out he could not apply for a licence when he went to do so.

[44]As regards his lack of knowledge of the scheme, the respondent averred that he had been abroad for the period, as a missionary in Africa. Mobile signal in Africa is very hard to come by, the respondent said, other than for calls and texts - and Internet access was irregular. When there was Internet access, it was insufficient to load many UK websites as they required higher download speeds than would be possible in Africa. Similarly, his wife had moved to Canada, and therefore wasn't in the country. When the respondent had been living in the subject building, he had been actively involved in the local community - and were it not for his being away he simply wouldn't have found himself not knowing about the need for a licence. The respondent accepted, however, that ignorance of the law was not generally a defence.

[45]The applicant noted that the offence of failing to licence a property was a strict liability one. It didn’t matter, the applicant averred, that the respondent didn't know about the scheme - he had failed to keep abreast of his legal duties. The respondent spoke about there being poor signal, but he had spoken about it as if he had never had Internet access at all. This wasn't a short period - and it can't have been the case that the respondent couldn't access the Internet at all to keep himself abreast of his duties.

[46]We agree with the applicant. The licensing scheme came into effect in September 2021, and it was a full year later that the respondent discovered the existence of the scheme – and even then only because the Council had taken action regarding it. During that time, the respondent hadn't, apparently, taken any steps to keep himself up to date with legal requirements. We are aware that we must consider the circumstances of the respondent, and not simply invent a hypothetical reasonable landlord who is free of those circumstances - but it cannot have been the case that the respondent never had access, at all, to any way of keeping up to date. The respondent had said that this wouldn't have happened if he were still living there, as he had been involved in the community. However, that isn't as helpful to him as he might have hoped, as what it really suggests is that even the respondent thinks he hasn't been keeping up to date with things as much as he would like. The respondent, fairly, accepted that ignorance of the law is not in general a defence, and indeed in this circumstance we cannot see that the respondent's ignorance of the scheme might constitute a reasonable excuse defence, nor form a relevant part of one.

[47]The respondent also submitted that, when he and his wife had sought to licence the property, they couldn't - as the council had not registered the property on their systems. The applicant averred that when he had carried out the works to create the property in 2018 (it being the result of a division of a previously larger dwelling) he had gained building regulations approval - and therefore he had alerted the council to the property's existence. He went further than this, in his written statement, by saying that he had been told that the council “would create flat 1a Orpington Garden, London N18 1LW in their database as a separate unit within two months of issuing Building Control Completion”. This was not evidenced in written documents, and we do not find it credible that the respondent might remember such a precise timeframe without such written documents. The building control certificate the respondent did provide, at page 27 of his bundle, in any case related to the whole of the building “1, Orpington Gardens, London, N18 1LW”, and section 2 of that certificate (which from the rest of that certificate should have spoken to the works regarding which the certificate was served), was – inexplicably – entirely blank.

[48]The landlord and his wife had another property in the building which was registered with the council, and once they had become aware of the need for licences they had applied, and been granted, one for that property quickly.

[49]In reply, the applicants called into question why the respondent thought the building regulations certificate was sufficient. The respondent, they averred, must have known the council hadn't registered the subject property as the council tax was "wrong", having not changed since before the division of the previous, larger dwelling. The fact the subject property wasn't registered with the council, the applicants said, was a failure on the respondent's part. This meant that the delay caused by needing to have it registered prior to submitting an application for a licence was also the respondent's fault, and therefore it could not form a reasonable excuse defence.

[50]There can be, and was, no suggestion that this might have been a reasonable excuse prior to the date when the respondent first tried to apply for a licence - but is it a reasonable excuse from that point onwards? This matters, as if so then the present application was made more than 12 months after the offence ceased to be committed, the respondent and his wife having first tried, the respondent averred, to apply for a licence at least by 30 September 2022 (when the respondent’s wife sent an email to an officer of Enfield Council shown at page 14 of the respondent’s bundle), and the applicants’ application to this Tribunal not being made until 28 January 2024.

[51]We don't think it is a reasonable excuse. The fact the property's address wasn't registered with the council certainly posed an impediment to the respondent's applying, when he and his wife eventually sought to, but there has been no suggestion from the respondent that it was anything but a lawful impediment. It was in any case an impediment almost entirely caused by the respondent's actions, or rather lack of them. The respondent said that he thought the property was known to the council before, citing a building regulations certificate (that in fact referred to the building as a whole) and that the council had told him the property would be registered, but as the applicants submitted (whilst at times straying rather further into purported council tax responsibilities than was perhaps wise or accurate) he must have known the council tax at the building was still only for one property, and frankly we did not find the respondent’s evidence particularly credible regarding this matter. Whilst the council tax situation isn't necessarily as determinative as the applicants sought to suggest, it would certainly be a strong indication something was amiss that a reasonable landlord, acting reasonably, would have followed up on, rather than simply ignoring.

[52]This is therefore not an instance where a landlord had sought to take reasonable steps to keep informed of their legal responsibilities, and acted as best they could to comply with them. Instead, the respondent failed to make himself aware of his legal duties at all, and he and his wife didn't seek to apply for a licence until over a year had passed since the licensing scheme had started. When they did finally try to apply, they ran head first into the natural consequences of the respondent’s own failures to act previously.

[53]Accordingly, we considered that the respondent had not shown (on the balance of probabilities) that he had a reasonable excuse defence to the offence.

[54]For the reasons given above, we are therefore sure (to the criminal standard of proof) that the respondent committed the offence of controlling a house which was required to be licensed under Part 3 of the Housing Act 2004, but was not so licensed, contrary to Section 95 of the Housing Act 2004. That offence was committed from at least 1 March 2022 (when the tenancy agreement was dated) and continued until 30 January 2023 - the date when the application for a licence was actually made.

[55]We therefore establish that we have the jurisdiction to make a Rent Repayment Order in this matter. The Amount of the Rent Repayment Order

[56]Having established that we had the jurisdiction to make a Rent Repayment Order (RRO) in this case, we determined that we would do so. It would be exceptional for us not to, and we considered that it was clearly in the interests of justice that we made such an order.

[57]In calculating the amount of an RRO, as referred to by the applicants, the Tribunal is guided by the decision of (Upper Tribunal) Judge Cooke, in Acheampong v Roman

[2022] UKUT 239 (LC)

. This consists of four steps, which we will take in turn. A – Ascertain the whole of the rent for the relevant period

[58]The total rent for the relevant period 2 March 2022 to 29 January 2023 was £15,288, as agreed between the parties at the hearing.

[59]The Applicants confirmed that they were not “in receipt of a housing element of Universal Credit or Housing Benefit”, and so no deduction from this figure is necessary to comply with Section 44(3) of the Housing and Planning Act 2016. 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 is expected to make an informed estimate where appropriate.

[60]The respondent had provided bills for the utilities, but those bills related to at least one other flat in the building as well. We are aware that these reasons are already lengthy, and do not wish to extend them further than is necessary, but we must note that the applicants submitted that we should not deduct any amount for utilities. This was based on, frankly, seeking to find a narrow path through (and clearly against the intention of) Judge Cooke’s decision in Acheampong v Roman – based on her having said that it would “usually” be appropriate to deduct for utility bills, and that we should therefore exercise our discretion not to. We do not intend to recite the whole of the applicants submissions in this regard, but we do not agree with them.

[61]The applicants referred in writing to Ball v Sefton Metropolitan Borough Council

[2021] UKUT 42 (LC)

, but that concerns cases where a conviction has already been made – and the framework for arriving at an RRO is therefore wholly different, as is in fact made clear from the quote (of paragraph 22 of that judgement) provided. The applicants went on to say that, in apparent accordance with Vadamalayan v Stewart & Ors

[2020] UKUT 0183 (LC)

, our discretion was not fettered in relation to the current application - as RRO’s under the HPA [2016] need not be “reasonable in the circumstances” in the way they must be for RRO’s under the Housing Act 2004. Further, they argued that “rent” has a clearly defined meaning in common law as being “the entire sum payable to the landlord in money”, and that Parliament would have had this in mind – but so too would Judge Cooke when she made her decision in Acheampong v Roman.

[62]Orally at the hearing, the applicants submitted that other First-tier Tribunals had decided not to deduct utility bills, and that we couldn’t do so in this case as it would involve having to estimate the amount – but the decisions of other first tier tribunals are not binding upon us, unlike the decision of Upper Tribunal Judge Cooke in Acheampong v Roman, and estimating amounts of utilities is precisely something which Judge Cooke envisages us doing as an “experienced Tribunal” in her setting out of the steps to be taken in ascertaining the rent repayment order.

[63]We heard the submissions of the applicant (the submissions of the respondent being more straightforward and obvious), but the fact is that Acheampong v Roman makes perfectly clear what we are to do, and how – in plain English. That decision is binding upon us, and is recognised by the applicants themselves as being the leading authority in this area, and we do not think that step “b” offers the scope for ambiguity that the applicants suggest.

[64]Another point the applicants made, and one that carries more weight, is that, were we to estimate the amount of the bills attributable to the tenant’s property, we would run the risk of the landlord unfairly benefitting from an over-estimation, as all we could reasonably do was divide the amount for the utilities in half (on the basis they appeared to cover two flats). It would be unfair, they said, that this might occur. We understand that point, but it comes down to a suggestion that we should allow the applicants to benefit from a large unfairness (in ignoring the utility bills at all) rather than risk the landlord benefitting from a smaller one (in mis-estimating the amount attributable to the subject flat). What is more, there is no reason to think the landlord would be the one that benefitted from such a mis-estimation – and it is just as likely to be the tenants.

[65]Accordingly, we determined – doing the best we could with the information available to us - that we would deduct half of the utility bills at the property, as they appeared to cover two flats. There was some discussion about whether the respondent had provided all of the bills in their bundle. The respondent had averred that he had done so, but in fact there appeared to be discrepancies with the summary table he had provided. We decided that we would take the utility bills as being the amounts for which bills were provided in the bundle, firstly as the landlord had averred he had provided all of the relevant bills, and secondly as it is in any case the landlord’s responsibility to evidence such costs.

[66]This leads to a total deduction for utilities of £1,618.84, based on a utility total of £3,237.68 from the bills provided in evidence which were dated within the period; two virgin media bills for £42.75 being dated after the end of the relevant period - 2 March 2022 to 29 January 2023 – (at pages 57 and 58 of the respondent’s bundle) and one Shell Energy bill (at page 48 of that bundle) relating to a period before the start of it. Standing back and looking, this appears to us to be a sensible figure for utilities at a flat such as the subject for the period involved.

[67]The amount of the rent for the period, less utilities, is therefore £13,669.16 C – determine the seriousness of the offence to ascertain the starting point.

[68]The Tribunal finds, which is in fact in line with the submissions of the applicants, that the offence of failing to obtain a selective licence alone is not of the most serious types of offence for which a RRO may be sought.

[69]There was no evidence provided that the property was unsafe, or that it required any significant work prior to its being granted a licence. Similarly, whilst not enough to offer a reasonable excuse defence, we accept and it is clear that the respondent’s offending was the result of a lack of knowledge of the law, which he sought to remedy when he became aware of it, and not intentional criminality.

[70]As regards the difficulties in applying for a licence when the respondent sought to do so, we did not consider this was a mitigating feature; it was instead a technical legal argument that the applicants had not applied to this Tribunal in time.

[71]Having consideration of the above, we consider that a starting point of 65% of the rent would be appropriate in this instance. 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).

[72]Section 44(4) of the Housing and Planning Act 2016 provides that in determining the amount of the RRO there are various factors which the Tribunal should take into account, namely the conduct of the landlord and the tenant, the financial circumstances of the landlord and whether the landlord has at any time been convicted of an offence to which that Chapter of the 2016 Act applies.

[73]We consider that the landlord’s conduct, these proceedings aside (his conduct during which we do not consider relevant to the rent repayment order itself), has been unremarkable. The applicants’, brief, witness statement painted a clear picture of a relativity good period of occupation as far as the applicants were concerned, with good relations at the time of leaving, the reason for which being given as “We got better house”.

[74]The tenant’s conduct was a matter of some accusation from the respondent. They had left the property, the respondent averred, in a poor condition – and there was rotten wood underneath the bath. When he had seen they were not keeping the place tidy, he had decided “I was not renewing the tenancy” (the landlord’s position being that the tenants had asked for an extension of their tenancy which he had refused prior to their departure). When speaking to the damage caused by the tenant, the landlord referred to a photograph at page 69 of his digital bundle as showing some of it. We could not understand why this photograph was provided, as it appeared to show the underside of what used to be a bath area in a perfectly good condition, save for some wear and tear over the years including some scuffed paint, and what looked like a mark from a small amount of historic water damage which would be in no way unexpected.

[75]When we sought to ask what we were meant to see from that photograph, we were told it showed the damage – but when it became apparent that we couldn’t understand what we were meant to be looking at, that submission changed. It was not, after all, an image of the damage caused by the tenant – but a photograph from after the respondent’s builder had repaired the floor. When we asked why there was an aged water mark on a new floor, the respondent averred that his builder had taken a picture of it as there had been a minor drip from the water inflow hose while the builder was working which he felt merited the attention of the respondent. The respondent was not able to explain, however, why that allegedly new floor had clearly visible damage to the paint work – and was apparently unable to see what we meant when we asked about it, despite it being clearly shown on that photograph.

[76]The landlord also provided photographs of the tiled floor, which he said showed it was damaged by flooding, but – we must note as an expert tribunal – they did no such thing. In addition, the respondent made some further allegations about the tenant, such as their apparently having filled some sort of water container with rubbish, but these allegations were no more credible than those we have already mentioned.

[77]It was the applicants’ submission that what the respondent said was untrue. The tenants had used the property in a good manner. We preferred the submissions of the tenants, and found that there was no poor conduct on their part.

[78]As regards the landlord’s financial position, the respondent had made some submissions suggesting he and his family were in poor financial circumstances – but they did not produce any documentary evidence about their finances at all. The respondent throughout the hearing and his written submissions made a number of claims in support of his case, some of which we have referred to above, that were simply not credible – and he was not a reliable narrator of fact. In the absence of any hard evidence to show the poor financial circumstances of which the respondent complained, we do not make any adjustment to account for the landlord’s financial circumstances.

[79]We are also required to consider whether the respondent has been convicted of the offence or a relevant offence, which we have no evidence to suggest has happened. However, this is a relevant moment to touch upon the involvement of the council in this matter, who, during the time in which the respondent and his wife sought to register the property on their systems, had apparently given some leeway by allowing the landlord some time before enforcement action was taken. The respondent spoke to this, and asked, as an open question, in general terms what this meant – but it doesn’t mean anything more, or less, than what it means at face value. The council may have decided not to take enforcement action against the respondent, but that does not change the offence having been committed, nor the applicants’ ability to apply for a rent repayment order in relation to it.

[80]Accordingly, we make no adjustment to the starting point adopted. Rent Repayment Order

[81]For the reasons given above, we make a Rent Repayment Order to the benefit of the Applicants in the sum of £8,884.95 (being 65% of the total rent paid in the period 2 March 2022 to 29 January 2023 less the estimated utility costs).

[82]The Tribunal would remind the parties that it does not have the power to order the payment of the RRO. It can only determine the amount of the RRO. Fees

[83]The applicants sought repayment of their application and hearing fees under Rule 13(2) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

[84]We find it appropriate, in light of our decision to make an RRO, to order the reimbursement of the application and hearing fees – a total of £320. Name: Mr O Dowty MRICS Date: 3 December 2024 Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the Tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the Regional Office which has been dealing with the case. The application should be made on Form RP PTA available at https://www.gov.uk/government/publications/form-rp-pta-application-for-permission-to-appeal-a-decision-to-the-upper-tribunal-lands-chamber The application for permission to appeal must arrive at the Regional Office within 28 days after the Tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the Tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the Tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber). Appendix of Relevant Legislation Housing Act 2004 95 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) A person commits an offence if— (a) he is a licence holder or a person on whom restrictions or obligations under a licence are imposed in accordance with section 90(6), and (b) he fails to comply with any condition of the licence.

(3) In proceedings against a person for an offence under subsection (1) it is a defence that, at the material time— (a) a notification had been duly given in respect of the house under section 62(1) or 86(1), or (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) for having control of or managing the house in the circumstances mentioned in subsection (1), or (b) for failing to comply with the condition, as the case may be.

[7]For the purposes of subsection (3) a notification or application is “effective” at a particular time if at that time it has not been withdrawn, and either—(a) the authority have not decided whether to serve a temporary exemption notice, or (as the case may be) grant a licence, in pursuance of the notification or application, or

(b) if they have decided not to do so, one of the conditions set out in subsection (8) is met.

[8]The conditions are-(a) that the period for appealing against the decision of the authority not to serve or grant such a notice or licence (or against any relevant decision of the appropriate tribunal) has not expired, or

(b) that an appeal has been brought against the authority’s decision (or against any relevant decision of such a tribunal) and the appeal has not been determined or withdrawn.

[9]In subsection (8) “relevant decision” means a decision which is given on an appeal to the tribunal and confirms the authority’s decision (with or without variation). Housing and Planning Act 2016 40 Introduction and key definitions(1) This Chapter confers power on the First-tier Tribunal to make a rent repayment order where a landlord and committed an offence to which this Chapter applies.

(2) A rent repayment order is an order requiring the landlord under a tenancy of housing in England to – (a) repay an amount of rent paid by a tenant, or (b) pay a local housing authority an amount in respect of a relevant award of universal credit paid (to any person) in respect of rent under the tenancy.

(3) A reference to “an offence to which this Chapter applies” is to an offence, of a description specified in the table, that is committed by a landlord in relation to housing in England let to that landlord. Act Section general description of offence 1 Criminal Law Act 1977 section 6(1) violence for securing entry Act Section General description of offence 2 Protection from Eviction Act 1977 section 1(2), (3) or (3A) eviction or harassment of occupiers 3 Housing Act 2004 section 30(1) failure to comply with improvement notice 4 section 32(1) failure to comply with prohibition order etc 5 section 72(1) control or management of unlicensed HMO 6 section 95(1) control or management of unlicensed house 7 This Act section 21 breach of banning order

(4) For the purposes of subsection (3), an offence under section 30(1) or 32(1) of the Housing Act 2004 is committed in relation to housing in England let by a landlord only if the improvement notice or prohibition order mentioned in that section was given in respect of a hazard on the premises let by the landlord (as opposed, for example, to common parts). 41 Application for rent repayment order (1) A tenant or a local housing authority may apply to the First-tier Tribunal for a rent repayment order against a person who has committed an offence to which this Chapter applies. (3) A local housing authority may apply for a rent repayment order only if – (a) the offence relates to housing in the authority’s area, and (b) the authority has complied with section 42. (4) In deciding whether to apply for a rent repayment order a local housing authority must have regard to any guidance given by the Secretary of State. 43 Making of a rent repayment order (1) The First-tier Tribunal may make a rent repayment order if satisfied, beyond reasonable doubt, that a landlord has committed an offence to which this Chapter applies (whether or not the landlord had been convicted). (2) A rent repayment order under this section may be made only on an application under section 41. (3) The amount of a rent repayment order under this section is to be determined with – (a) section 44 (where the application is made by a tenant); 44 Amount of order: tenants (1)Where the First-tier Tribunal decides to make a rent repayment order under section 43 in favour of a tenant, the amount is to be determined in accordance with this section. (2)The amount must relate to rent paid during the period mentioned in the table. If the order is made on the ground that the landlord has committed the amount must relate to rent paid by the tenant in respect of an offence mentioned in row 1 or 2 of the table in section 40(3) the period of 12 months ending with the date of the offence an offence mentioned in row 3, 4, 5, 6 or 7 of the table in section 40(3) a period, not exceeding 12 months, during which the landlord was committing the offence (3)The amount that the landlord may be required to repay in respect of a period must not exceed— (a)the rent paid in respect of that period, less (b)any relevant award of universal credit paid (to any person) in respect of rent under the tenancy during that period. (4) In determining the amount the tribunal must, in particular, take into account— (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 an offence to which this Chapter applies.