Judge H CarrN/A for the ApplicantNone Application for a rent repayment order by tenant Sections 40, 41, 43, & 44 of the for the RespondentDate 26 August 2025Property: London, SE9 3AFType of application: Housing and Planning Act 2016 Judge H Carr
DECISION
Decisions of the tribunal(1) The tribunal determines to make a Rent Repayment Order for the period 1st September 2023 – 19th February 2024 for the sum of £2944.(2) The Rent Repayment Order must be paid within 28 days of the issue of this decision.(3) The tribunal determines that the respondent reimburse the applicant for her application and hearing fees, totalling £330(4) The tribunal makes the determinations as set out under the various headings in this decision. The application[1]The applicant tenant, Ms Leiba-Patterson, applied for a determination pursuant to section 41 of the Housing and Planning Act 2016 (the Act) for a rent repayment order (RRO) in relation to Room 1, 557 Sidcup Road, Greenwich, London SE9 3AF.[2]The applicant alleges that the respondent landlord has committed the offence of control or management of an unlicensed HMO under s.72(1) of the Housing Act 2004.[3]She also made allegations under the Criminal Law Act 1977 s.6(1), the Protection from Eviction Act 1977 s.1(2), failure to comply with improvement notice under the Housing Act 2004, failure to comply with a prohibition order, and failure to comply with a banning order. She informed the tribunal that she did not wish to proceed with these allegations.[4]The respondent is Mr Nyasha ‘Jaison’ Mukusha. Mr Mukusha is named on the tenancy agreement as landlord and is the registered freehold owner of the property.[5]The applicant is seeking to recover by means of an RRO, £11,187 for the period of 18th August 2023 to 22 August 2024.[6]The applicant made 3 applications received by the tribunal on 4 September 2024, 13th November 2024 and 23 November 2024.[7]Directions were issued 4th February 2025 and amended on 8th April 2025. The hearing[8]Ms Patterson attended the hearing and represented herself.[9]Mr Mukusha attended the hearing and represented himself[10]At the end of the hearing the tribunal gave the Respondent some time to submit details of his financial circumstances and expenditure on utilities and the Applicant the opportunity to respond.[11]Both parties provided extensive additional evidence and arguments. These additional documents were not considered by the tribunal which restricted its decision to the evidence presented at the hearing, the evidence of the Respondent’s financial circumstances and utility costs and the Applicant’s response to that evidence. The background and chronology[12]The property is a semi-detached house comprising 4 bedrooms and two bathrooms, one on the ground floor and one on the first floor.[13]The respondent purchased the property on 27th February 2023 with the aid of a mortgage and started renting out the property in August 2023.[14]The applicant commenced her tenancy on 21st August 2023. She signed an Assured Shorthold Tenancy for a fixed term of 12 months and paid a monthly rent of £895. The tenancy gave her exclusive possession of her room and granted a licence over the common parts.[15]The applicant’s tenancy was not renewed at the end of the 12 month fixed period. The issues[1]The issues that the tribunal must determine are;(i) Is the tribunal satisfied beyond reasonable doubt that the landlord has committed the alleged offence?(ii) Does the respondent have a ‘reasonable excuse’ defence?(iii) What amount of RRO, if any, should the tribunal order? (a) What is the maximum amount that can be ordered under s.44(3) of the Act? (b) What account must be taken of (1) The conduct of the landlord (2) The financial circumstances of the landlord: (3) The conduct of the tenant?(iv) Should the tribunal refund the applicant’s application and hearing fees? The determination Is the tribunal satisfied beyond reasonable doubt that the respondent has committed the alleged offence? The Applicant’s evidence[2]The applicant argued that the respondent was a “person having control” of the property.[3]The applicant produced a copy of an assured shorthold tenancy in her name.[4]The applicant says that when she moved into the property it was already a multi-occupancy house with 3 tenants sharing common facilities. The numbers expanded within weeks to eventually accommodate 5 separate households including herself.[5]The applicant relies on(1) a WhatsAp group chat between the applicant, Mazen Makki, Stephaie Gallardo, Jessica McMahon and Fem and the landlord. The landlord set up the chat from when the tenancy began until it ended and(2) a statement from Mazen Makki[6]The applicant was unrelated to any of the other occupiers and was not in a relationship with any of the other occupiers.[7]The applicant therefore alleges that the property was occupied by five persons from more than two separate households who occupied the property as their main residence during the relevant period. The occupiers paid rent and their occupation of the property constituted the only use of the accommodation.[8]She says that the appropriate HMO licence was not held during the relevant period and no licence application was made at any point during her tenancy. The Respondent’s evidence[9]The respondent says that for four and a half months, from 1 September until 19th February, five tenants occupied the property. Otherwise there were fewer than five tenants in the property.[10]When he discovered that the property required licencing he did not apply for a licence but took steps to reduce the number of occupants of the property.[11]He denies that at any period other than from 1st September 2023 – 19th February 2024, the property required a licence.[12]The applicant responded to this evidence by saying that the property was in an additional licensing area and therefore required licensing when three people were in the property. The decision of the tribunal[13]The tribunal determines that the respondent has committed the alleged offence for the period of 1st September 2023 – 19th February 2024. The reasons for the decision of the tribunal[14]The tribunal relies on the evidence of the applicant and the admission of the respondent to find that there was a need for a mandatory licence during the period 1st September 2023 – 19th February 2024.[15]The applicant provided no evidence of an additional licensing scheme being run by the London Borough of Greenwich during the relevant period.[16]Nor did her application or reply reveal that breach of the requirements of an additional licensing scheme was part of her case. Her reply did refer to a selective licensing scheme but no details were provided of this. It should be noted that a selective licensing scheme does not apply to HMOs.[17]The failure to plead the additional licensing offence is significant as the respondent prepared his case based on the allegations of offences as set out by the applicant. The respondent has the right to know the allegations against him. Moreover the applicant is required to prove alleged offences beyond reasonable doubt and she has failed to do this in connection with the additional licensing. For instance, there is no evidence provided of any designation of an additional licensing scheme.[18]For these reasons the tribunal restricts its finding to a breach of the mandatory licensing requirements and to the period 1st September 2023 – 19th February 2024. Does the Respondent have a ‘reasonable excuse’ defence?[19]The Respondent says that he had a genuine and honest belief that the property did not require an HMO licence as the period with five tenants was temporary and all other times was below the threshold.[20]The local authority provided no communication, inspection, warning or indication that the property required licensing.[21]The Respondent was not professionally advised of the requirements of licensing and had no intention of avoiding regulation.[22]Upon realising that the HMO rules rightly apply steps were taken to reduce occupancy and eventually close the property to new tenants.[23]The Respondent therefore submits that this technical breach was committed inadvertently and without recklessness or negligence and that the defence of reasonable excuse should apply. Decision of the tribunal[24]The tribunal determines that the respondent’s reasonable excuse defence fails. The reasons for the decision of the tribunal[25]It is incumbent upon the respondent to ensure that he is fully compliant with the law and seek professional advice. There is extensive advice available to landlords about licensing requirements.[26]There is no requirement for a local authority to inform individual landlords of licencing requirements.[27]The need for a mandatory licence for a shared house with 5 occupiers is well known, having been in place for more than twenty years. Ignorance and inadvertence cannot be a reasonable excuse. Should the tribunal make an award of a RRO? If so, for what amount? The exercise of the tribunal’s discretion[28]The applicant asked the tribunal to exercise its discretion and make an RRO. The decision of the tribunal[29]The tribunal determines to exercise its discretion to make a rent repayment order. The reasons for the decision of the tribunal[30]The tribunal considered the evidence and determined that it was appropriate for it to exercise its discretion and make a rent repayment order because there had been a clear breach of the law. The maximum amount of the RRO which can be ordered[31]The tribunal has found that the period during which an offence was committed is 1st September 2023 – 19th February 2024.[32]Therefore the maximum period for which an RRO can be awarded is that period.[33]The applicant provided evidence that she had paid rent during that period.[34]The applicant gave evidence that she was not in receipt of Housing Benefit or the housing element of Universal Credit in the relevant period.[35]The tribunal found that the maximum RRO it could award was £5035. This is made up as follows: 5 x £895 = £4475 plus 19 days at a daily rent of £29.43 rounded up to the nearest pound = £560 Other arguments concerning the amount of the RRO to be awarded.[36]The respondent says that the rent included the following utilities(i) Water(ii) Gas(iii) Electricity(iv) Council tax(v) WiFi(vi) TV licence(vii) cleaning[37]The respondent provided evidence of the cost of utilities in submissions provided after the hearing. The applicant provided submissions challenging the amounts claimed. In particular she rejected the claim the respondent made payments towards insurance on her behalf and said that she was not eligible to pay Council Tax. She considers the water costs high and asks that the electricity costs are validated as the bill shows no property address. She says that the cleaning was sporadic.[38]The tribunal has considered the evidence provided and determines to deduct £90 per month (approx. £3 per day) from the maximum amount of the RRO that can be awarded. It therefore deducts 5 x90 plus 19 x 3 = £507 for utility costs. This means that prior to consideration of conduct and financial circumstances the maximum RRO is £4528. Conduct of the applicant tenant[39]The applicant argues that her conduct has been good. She was occasionally late with her rent but she says that the respondent was aware that as a student her income was not regular.[40]The respondent argues that the applicant’s conduct was poor(i) The applicant failed to pay rent on time during 5 of the 12 months of the tenancy. For the period between 21st July and 22 August no rent was received and this remains outstanding. The late and missed payments were disruptive and financially damaging.(ii) The respondent acted reasonably and compassionately by waiving late payment charges and offering flexible arrangements despite the recurring impact of rent arrears(iii) The applicant failed to respond to reasonable communications from the respondent.(iv) The applicant was financially irresponsible and had a disregard for tenancy obligations.(v) The applicant caused damage to parts of her room and another room she had not been granted access to, from which she took property without permission. In the process she damaged a bed and did not disclose this until the Respondent confronted her.(vi) The Applicant damaged a brand new mattress provided only four months earlier which was left saturated and leaking through the floor boards.(vii) The Applicant broke glass shelving on a bedside unit, lost the handles of bedroom cabinets and caused visible damage to the bed plinths(viii) Upon vacating the Applicant left her room in an unhygienic and unclean condition The conduct of the respondent landlord[41]The applicant argues that the offence is a serious example of a failure to licence. She says that the poor standard of property maintenance indicates a failure to take the responsibilities of a landlord seriously. The conduct of the respondent was intimidatory and harassing.[42]The applicant argues that the condition of the property was poor(i) There were inadequate waste disposal arrangements in place for a shared property(ii) Mice sightings and video evidence of pest activity in the kitchen which it took time to persuade the respondent to take seriously.(iii) She made complaints about mould and damp carpets in the downstairs bathroom(iv) The tenants raised fire safety concerns including sealed shut bedroom windows which the respondent did not take seriously. The respondent only unsealed the windows when the tenants agreed they would not jump out of them.(v) The respondent failed to provide a fire extinguisher, fire safety blanket or suitable fire exits.(vi) The washing machine was broken for a period.(vii) There was a problem with the main bathroom which lacked an extractor fan and the shower leaked.(viii) The result of the leak in the shower led to part of the kitchen ceiling collapsing. The applicant says that this meant that the first floor bathroom and the kitchen were unavailable whilst repair work was going on. The respondent offered no support or rent reduction during this period.[43]The applicant alleges that the behaviour of the landlord was poor. In particular she says that she experienced intimidation and harassment from the respondent including the respondent entering her room without permission and attempting to forcibly remover her from the property without a court order.[44]The respondent argues that his conduct was good. He denies the allegations of the applicant. Over the 12 month tenancy the respondent says he entered the applicant’s room only once and that was at her own request, to assist with unscrewing a sash stop fitted with a hexagon safety screw. The task was completed in under a minute.[45]The respondent denies that he ever entered the property at unsociable hours. All entries were limited to the common parts of the house which are shared areas. He argues that under housing law, landlords are not required to give notice to enter common areas in a house in multiple occupation. Notice is only required for entry into a tenant’s private room which the respondent fully respected. In addition he makes the following points(i) The washing machine was replaced. It was purchased and installed within 14 days of the problems being raised as the Whats App images demonstrate(ii) Bathroom works were undertaken by registered professionals and done as speedily as possible.(iii) Following complaints of mice infestation by the tenants, the respondent visited the property and undertook inspection in the kitchen. Upon removal of the kitchen plinths no mice were found. Nonetheless the respondent paid for professional pest control to attend the property and inspect it. No mice were found, and tenants were advised not to leave the garden door open. Mice traps were ordered by the respondent which led to one mouse being captured after pest control had inspected the property thoroughly. The decision of the tribunal[46]The tribunal determines to award a RRO of £2944. The reasons for the decision of the tribunal[47]There is extensive case law on how the tribunal should reach a decision on quantum of a rent repayment order. In reaching its decision in this case the tribunal has been guided by the very helpful review of the decisions in the Upper Tribunal decision Newell v Abbott and Okrojek [2024] UKUT 181 (LC).[48]Acheampong v Roman (2022) UKUT 239 (LC) established a four stage approach which the tribunal must adopt when assessing the amount of any order. The tribunal has already taken the first step that the authorities require by ascertaining the whole of the rent for the relevant period. The second step is to subtract any element of that sum that represents payment for utilities that only benefitted the tenant. In this case the tribunal has determined to deduct £90 per month from the rent the applicant to cover the cost of utilities.[49]Next the tribunal is required to consider the seriousness of the offence in comparison with the other housing offences for which a rent repayment order may be made. The failure to licence a property is one of the less serious offences of the seven offences for which a rent repayment order may be made.[50]However, although generally the failure to licence is a less serious offence, the Upper Tribunal recognises that even within the category of a less serious offence, there may be more serious examples.[51]In this case the tribunal considered that the case is a moderately serious example of one of the less serious offences in which a rent repayment order may be made.[52]The reasons for this are as follows:(i) The lack of fire precautions(ii) The inconvenience suffered by the applicant and other tenants as a result of repairs being carried out to the upstairs bathroom and the kitchen ceiling.(iii) The failure of the respondent to respond appropriately and professionally to concerns of the tenants. The respondent demonstrated in replies to questions from the tribunal a resistance to accepting for instance that mice infestations need to be treated seriously or that a bathroom being out of action in a shared property is a major problem for tenants.(iv) A lack of understanding of the legal responsibilities of being a landlord including responsibility for waste management and knowledge of how a fixed term tenancy is to be terminated.[53]On the other hand the tribunal notes that the respondent was very inexperienced and in general, although frequently belatedly, carried out his obligations. The property was his only property and he had only just purchased it. In addition, the respondent told the tribunal he is no longer a landlord.[54]The tribunal decided not to reduce the amount payable because of the conduct of the applicant. The evidence demonstrates a breakdown of a relationship between the respondent and the applicant but the tribunal does not consider the allegations of damaging property to be made out and any delays in rent payments were minor and should have been anticipated by the respondent as he was letting a property to a student.[55]The applicant’s failure to pay the last month’s rent is poor conduct but the respondent has been compensated for this by retaining the deposit and the tribunal has taken into account that for a period of time cooking and bathing facilities were restricted in the property and therefore the tribunal has not deducted any sum for this failure.[56]The tribunal does not increase the amount of the award for the conduct of the respondent. The applicant has failed to demonstrate harassment or illegal eviction. The WhatsApp messages demonstrate a lack of patience with the applicant but no undue pressure or harassment. The witness statements provided by the applicant, whilst supportive do not provide specific details of unacceptable behaviour. The tribunal does accept that the respondent behaved brusquely towards the applicant on several occasions, but it has taken that behaviour into account in determining the seriousness of the offence.[57]Despite having been given an opportunity to provide evidence about financial circumstances very limited evidence was provided. There was no information demonstrating rental income during the relevant period. There was no information about the value of the respondent’s property. There was no corroborating evidence provided. The tribunal therefore makes no deductions from the amount awarded for financial circumstances.[58]It therefore makes an RRO of 65% of the maximum RRO ie £2944[59]In the light of the above determinations the tribunal also orders the respondent to reimburse the applicant’s application fees and hearing fees. Name: Judge H Carr Date: 26th August 2025 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 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).