Judge NicolMs R Kershaw BScDate 9 September 2025Property: London, E9 6NTType of application: by tenant Judge Nicol
DECISION
The application for a Rent Repayment Order is refused. Relevant legislation is set out in the Appendix to this decision.
REASONS
[1]The Applicant was a tenant at 265 Trelawney Estate, Paragon Road, London E9 6NT, a 3-bedroom duplex flat, from 5th February 2023 until 20th June 2024. The Respondent is the leasehold owner of the property and was the landlord.[2]On 11th July 2024, the Applicant applied for a rent repayment order (“RROs”) against the Respondent in accordance with the Housing and Planning Act 2016 (“the 2016 Act”).[3]The Tribunal issued directions on 23rd October 2024. There was a face-to-face hearing of the application at the Tribunal on 26th March 2025 but the Tribunal was concerned that the Applicant had not complied with the direction as to his bundle of documents and, even more significantly, that the Respondent had not been properly served with the bundle or with the directions. Therefore, the Tribunal issued new directions.[4]A new hearing was listed for 9th September 2025. It was converted from a face-to-face hearing to a remote video hearing to take account of difficulties participants would have had in traveling to the Tribunal during the strike on the London Underground. It was attended by the Applicant. The Tribunal decided to continue in the absence of the Respondent in the light of how the application was dealt with, as set out below.[5]The documents available to the Tribunal consisted of the Applicant’s revised bundle of 199 pages.[6]The Tribunal may make a rent repayment order when it is satisfied on the criminal standard of proof, namely beyond a reasonable doubt, that the landlord has committed one or more of a number of offences listed in section 40(3) of the 2016 Act. The Applicant alleged that the Respondent was guilty of having control of or managing an HMO (House in Multiple Occupation) which is required to be licensed but is not so licensed, contrary to section 72(1) of the Housing Act 2004 (“the 2004 Act”).[7]According to the Applicant, the 3 bedrooms and the living room at the property were let separately to different tenants. However, he provided no evidence of this, not even a witness statement from himself. His application focused on the fact that the Respondent never gave him a written tenancy agreement but that doesn’t account for the lack of any evidence about any of the other alleged tenants.[8]At the hearing, the Applicant told the Tribunal that, being new to the UK and naturally shy, he had not spoken much to the other tenants. He did not know their names or phone numbers. He had thought he only needed evidence from his point of view and did not appreciate he needed anything else. If he were to try to compile evidence from the other tenants, he would have to attend the property but, even then, there would be no guarantee he could obtain the evidence he needed.[9]Moreover, the only operative licensing scheme in the locality of the property during much of the Applicant’s tenancy was the mandatory scheme under the 2004 Act. The local authority, the London Borough of Hackney, had an additional licensing scheme but it expired in September 2023 – the consultation for a new such scheme closes on 21st September 2025. Under the mandatory scheme, there must be at least 5 tenants – only under the additional scheme would a licence be required if there were fewer tenants. Given that only four rooms were let in the property in this case, the Tribunal would need evidence to show that at least 5 tenants were in the property at all relevant times.[10]The Tribunal aims to operate with a sufficient lack of formality that people unused to legal procedure or unrepresented can present their own cases. However, the Tribunal is dealing here with whether the Respondent committed a criminal offence and it is impossible to overlook the lack of any evidence. The Applicant has had more than sufficient time to take legal advice or compile further evidence so there are no grounds to adjourn the hearing to give him a further opportunity.[11]The Tribunal is not satisfied so that it is sure that the property was let in breach of any licensing scheme and so the application for a RRO is refused. Name: Judge Nicol Date: 9th September 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 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 Section 72 Offences in relation to licensing of HMOs[1]A person commits an offence if he is a person having control of or managing an HMO which is required to be licensed under this Part (see section 61(1)) but is not so licensed.[2]A person commits an offence if–(a) he is a person having control of or managing an HMO which is licensed under this Part,(b) he knowingly permits another person to occupy the house, and(c) the other person's occupation results in the house being occupied by more households or persons than is authorised by the licence.[3]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 67(5), and(b) he fails to comply with any condition of the licence.[4]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(b) an application for a licence had been duly made in respect of the house under section 63, and that notification or application was still effective (see subsection (8)).[5]In proceedings against a person for an offence under subsection (1), (2) or (3) 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 permitting the person to occupy the house, or(c) for failing to comply with the condition, as the case may be.[6]A person who commits an offence under subsection (1) or (2) is liable on summary conviction to a fine.[7]A person who commits an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale. (7A) See also section 249A (financial penalties as alternative to prosecution for certain housing offences in England). (7B) If a local housing authority has imposed a financial penalty on a person under section 249A in respect of conduct amounting to an offence under this section the person may not be convicted of an offence under this section in respect of the conduct.[8]For the purposes of subsection (4) 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 (9) is met.[9]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.[10]In subsection (9) “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 Chapter 4 RENT REPAYMENT ORDERS Section 40 Introduction and key definitions(1) This Chapter confers power on the First-tier Tribunal to make a rent repayment order where a landlord has 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 by that landlord. Act section general description of offence 1 Criminal Law Act 1977 section 6(1) violence for securing entry 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). Section 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. (2) 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. (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. Section 43 Making of 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 has 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 in accordance with— (a) section 44 (where the application is made by a tenant); (b) section 45 (where the application is made by a local housing authority); (c) section 46 (in certain cases where the landlord has been convicted etc). Section 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.