Judge Adrian JackDuncan Jagger MRICSBrian Leacock of Justice for Tenants for the ApplicantZahir Ahmad of counsel Application for a rent repayment order by tenant for the RespondentDate 14 July 2025Property: Road, London W14 9DF Akash Singh KudhailType of application: Sections 40, 41, 43, & 44 of the Housing and Planning Act 2016 Judge Adrian Jack, Tribunal Member
DECISION
[1]By an application dated 15th July 2024 the three applicants seek a rent repayment order under section 41 of the Housing and Planning Act 2016. They allege that the respondent landlord, Dr Mohamad Husaini, whose nickname is Alex, committed an offence of having control of or managing a house in multiple occupation that was required to be licensed, but was not so licensed. The applicants seek a rent repayment order for the period 19th September 2022 to 16th July 2023, in the sum of £27,869.59.[2]The Tribunal heard this matter on 11th July 2025. The three applicants gave evidence and were cross-examined. The respondent landlord also gave evidence and was cross-examined. Mr S Patwari attended to give evidence on the landlord’s behalf in accordance with a letter dated 20th December 2024. Mr Kudhail denied having met Mr Patwari, as alleged in the letter (which was otherwise uncontentious), but this in our judgment was not material to the issues we had to determine. In order not to prolong the hearing we took the letter of 20th December 2024 as read and did not consider that cross-examination on the one matter in dispute was necessary. The law[3]Section 40(1) of the Housing and Planning Act 2016 gives the Tribunal the power to make a rent repayment order in favour of tenants where a landlord has committed one of a number of criminal offences involving housing. The relevant offence in the current case is section 72(1) of the Housing Act 2004, the control or management of an unlicensed house in multiple occupation (“HMO”). It is common ground in the current case that the property is the subject of a selective licensing scheme and that at no material time did the respondent have a licence to operate the property as an HMO.[4]The applicants must prove beyond reasonable doubt that the respondent has committed the offence: section 43(1) of the 2016 Act. In proceedings under section 72(1) it is a defence under section 72(5) that the landlord “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.”[5]The burden of proving the facts in section 72(1) lies on the applicant to the criminal standard of beyond reasonable doubt. The burden of proving the defence in section 75(5) rests on the respondent on balance of probabilities. In fact, in the current case the burden and standard of proof in relation to section 75(5) is irrelevant. We would make the same determination if the applicants had the burden of disproving the section 75(5) defence to the criminal standard.[6]Under the standard test for what constitutes an HMO in section 254(1)(a) and (2) of the 2004 Act (the only relevant test in this case), a “building or a part of a building meets the standard test if—(a) it consists of one or more units of living accommodation not consisting of a self-contained flat or flats;(b) the living accommodation is occupied by persons who do not form a single household (see section 258);(c) the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (see section 259);(d) their occupation of the living accommodation constitutes the only use of that accommodation;(e) rents are payable or other consideration is to be provided in respect of at least one of those persons’ occupation of the living accommodation; and(f) two or more of the households who occupy the living accommodation share one or more basic amenities or the living accommodation is lacking in one or more basic amenities.”[7]However, for the purposes of section 254 somewhere used “as the person’s residence for the purpose of undertaking a full-time course of further or higher education” is treated as that person’s only or main residence: see section 259(1) and (2)(a).[8]A tenant can apply under section 41(1) of the 2016 Act for a rent repayment order but by section 41(2) the tenant may apply “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.”[9]By section 44 of the 2016 Act: “(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 [the period not exceeding 12 months when the landlord committed the offence], 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.”[10]It follows from section 44(3)(a) that only rent actually paid during the period of the offence can be the subject of a rent repayment order: see Pearton v Betterton Duplex Ltd [2025] UKUT 175 (LC).[11]We note that it is not obligatory to make a rent repayment order when an offence has been committed. In deciding whether or not to make a rent repayment order, the considerations set out in section 44(4) are relevant.[12]If the Tribunal decides to make a rent repayment order, the relevant principles are summarised in the Upper Tribunal decision in Newell v Abbott [2024] UKUT 181 (LC), where the deputy president held: “33. In determining the amount to be repaid under a rent repayment order the FTT is required by section 44(4) of the 2016 Act to take into account, in particular,(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 Chapter 4 applies. Where the landlord has been convicted of one of five different housing offences or has been the subject of a financial penalty other than on conviction (i.e. under section 249A, 2004 Act) the FTT is required by section 46(1) to order repayment of the maximum amount permitted by section 44. Parliament appears to have taken the view that (in the absence of exceptional circumstances) the fact that one of these five offences has already resulted in a conviction or a civil financial penalty justifies the additional imposition of the maximum possible rent repayment order. But section 46(3)(a), 2016 Act excludes licensing offences from the five housing offences for which this maximum penalty is mandated.[34]Since its decision in Ficcara v James [2021] UKUT 38 (LC) the Tribunal has emphasised the seriousness of the offence which has been committed as a significant factor to be taken into account when determining how much of the rent paid by a tenant should be ordered to be repaid. At paragraph [32] of that decision, I said this about the factors identified in section 44(4), 2016 Act, as those which the FTT must in particular take into account: ‘First amongst those relevant factors is the conduct of the landlord, which must include the conduct which amounts to the relevant housing offence or offences. One would naturally expect that the more serious the offence, the greater the penalty.’ Later in the same decision, at paragraph [50], I drew attention to the relevance of section 46(1) in setting the framework within which the FTT is required to exercise its discretion. Section 46(1) provides that where the landlord has already been convicted, other than of a licensing offence, in the absence of exceptional circumstances the amount to be repaid is to be the maximum that the Tribunal has power to order. The exclusion of licensing offences, including the offence of managing an unlicensed Part 3 house contrary to section 95(1), 2004 Act, may be taken to indicate the relative seriousness which Parliament attributes to the different housing offences for which a rent repayment order may be made.[35]In Williams v Parmar [2021] UKUT 244 (LC) Fancourt J, Chamber President, reiterated, at paragraph [41], that ‘the circumstances and seriousness of the offending conduct of the landlord are comprised in the “conduct of the landlord”, so the FTT may, in an appropriate case, order a lower than maximum amount of rent repayment, if what a landlord did or failed to do in committing the offence is relatively low in the scale of seriousness, by reason of mitigating circumstances or otherwise.’[36]In Hallett v Parker [2022] UKUT 165 (LC) I referred to statements made in Parliament about the purpose of the rogue landlord provisions in Part 2 of the 2016 Act and said this, at paragraph [25]: ‘This explanation of the purpose of Part 2, with its battery of measures against “rogue landlords”, suggests that the power to make rent repayment orders should be exercised with the objective of deterring those who exploit their tenants by renting out substandard, overcrowded or dangerous accommodation. The differential treatment of licensing offences and more serious offences in section 46, and the greater flexibility given to tribunals when ordering rent repayment in the former category, are likely to be a reflection of that objective.’[37]In Acheampong v Roman [2022] UKUT 239 (LC) at paragraph 15, the Tribunal (Judge Cooke) concluded in the light of these decisions that ‘an order in the maximum possible amount would be made only in the most serious cases or where some other compelling and unusual factor justified it’. With that calibration in mind, the Judge then suggested at paragraph 20(c) that having determined the upper limit of what might be ordered to be repaid, decision makers should adopt the following approach when assessing the seriousness of an offence: ‘Consider how serious this offence was, both compared to other types of offence in respect of which a rent repayment order may be made (and whose relative seriousness can be seen from the relevant maximum sentences on conviction) and compared to other examples of the same type of offence.’[38]Acheampong was the first occasion on which the Tribunal had referred specifically to the need to consider the seriousness of the offence relative to ‘other types of offence in respect of which a rent repayment order may be made’ and not just to ‘other examples of the same type of offence’, which is the exercise Mr Newell complains was not undertaken by the FTT in this case. The Tribunal has nevertheless commented on a number of occasions (and particularly in Hallet v Parker at paragraph [30]) that, in a list of housing offences which includes the use of violence to secure entry, unlawful eviction, and failure to comply with an improvement notice, a prohibition order or a banning order, licensing offences are relatively of lesser seriousness. It did so again in Daff v Gyalui [2023] UKUT 134 (LC) where, at paragraphs [48]-[49], I tried to rank the housing offences by references to their general seriousness, as follows: ‘48. The seven offences in respect of which a rent repayment order may be made are identified in section 40(3), 2016 Act. Two are offences of violence or intimidation (the use of violence for securing entry contrary to section 6(1), Criminal Law Act 1977, and eviction or harassment of occupiers contrary to section 1, Protection for Eviction Act 1977). Those offences are plainly the most serious of those listed in section 40(3) and in the Magistrates Court they punishable by a fine and a term of imprisonment of up to six months (up to two years in the Crown Court). The offence of breaching a banning order contrary to section 21, 2016 Act, is also particularly serious and is punishable by a term of imprisonment of up to 51 weeks or a fine or both. These three offences are at the upper end of the range of seriousness covered by section 40(3).[49]The remaining four offences all involve breaches of provisions of the 2004 Act (failure to comply with an improvement notice or a prohibition order, and control or management of an unlicensed HMO or Part 3 house) and are generally of a less serious type. That can be seen by the penalties prescribed for those offences which in each case involve a fine rather than a custodial sentence. Although generally these are lesser offences, there will of course be more or less serious examples within each category. The circumstances relating to a failure to comply with an improvement notice, for example, may vary significantly. So too may be circumstances pertaining to a licensing offence.’”[13]At paragraphs 57 and 62 Judge Rodger KC said: “57. This brief review of recent decisions of this Tribunal in appeals involving licensing offences illustrates that the level of rent repayment orders varies widely depending on the circumstances of the case. Awards of up to 85% or 90% of the rent paid (net of services) are not unknown but are not the norm. Factors which have tended to result in higher penalties include that the offence was committed deliberately, or by a commercial landlord or an individual with a larger property portfolio, or where tenants have been exposed to poor or dangerous conditions which have been prolonged by the failure to licence. Factors tending to justify lower penalties include inadvertence on the part of a smaller landlord, property in good condition such that a licence would have been granted without additional work being required, and mitigating factors which go some way to explaining the offence, without excusing it, such as the failure of a letting agent to warn of the need for a licence, or personal incapacity due to poor health…[62]I therefore approach the level of penalty in this case without giving weight to the allegations of poor conduct on either side. Nor has [the landlord] provided evidence of his financial circumstances. On that basis, bearing in mind that the offence was committed by the landlord of a single property and was the result of inadvertence, or lack of attention, rather than being deliberate, and that the accommodation provided was generally of a good standard which attracted long term residents and which the respondents were disappointed to leave, the appropriate order is for the repayment of 60% of the rent received. Had the offence been committed for a much shorter period the penalty I would have imposed would have been equal to 50% of the rent, but the effective operation of selective licensing schemes depends on landlords keeping themselves properly informed and a prolonged failure to obtain a licence therefore merits a higher penalty.”[14]In assessing the rent which should be repaid, any utilities paid by the landlord should be disregarded. In the current case, it said that the landlord paid for lighting (presumably of the common parts, since the lease provides for electricity to be the tenant’s responsibility and since the applicants did actually pay for the electricity through a pre-payment meter), but in a block with some 21 flats the respondent’s share must be negligible. Mr Ahmad took no point on this. The tenancy agreement and rent payments[15]Mr Kudhail and Dr Husaini signed the assured shorthold tenancy agreement in issue in this case virtually on 16th September 2022 (the written agreement wrongly gives the date of the agreement as 6th September 2022, but no party took a point on this). Dr Husaini is described as the landlord and Mr Kudhail as the tenant. Paragraph 7 of the agreement provides that the term of the tenancy commences on 19th September 2022 and ends on 18th September 2022.[16]Paragraph 2 provides: “Subject to the provisions of this Agreement, apart from the Tenant and the Tenant’s immediate family members, no other persons will live in the Property without the prior written permission of the Landlord.” Paragraph 32 provides: “The Tenant will not assign this Agreement, or sublet or grant any concession or licence to use the Property or any part of the Property. Any assignment, subletting, concession, or licence, whether by operation of law or otherwise will be void and will, at Landlord’s option, terminate this Agreement.”[17]Paragraph 33 is a specially negotiated provision. It includes provisions (which we do not reproduce in the upper case type of the original) that “the tenant [is] to register not later than Oct 2022 with the Hammersmith & Fulham Council in order to complete the CTacx [sic: council tax] exemption application. Access to property during the office hours by the landlord or his agent regarding the safety/building surveyor or to inspect the satate [sic] of the property for being kept in clean and safety standard with prior notice.” (It should be noted that full-time student tenants are not liable for council tax.)[18]Paragraph 35 includes a provision: “property rented as single household/family.”[19]It is common ground that the applicants paid six months’ rent, amounting to £16,800.00 on 18th September 2022, although an invoice for that amount was only raised on 21st September 2022. Further rent totalling £5,600 was paid on 20th March 2023. A last payment was made on 19th May 2023 comprising £2,800 for the period 19th May to 18th June 2023 and £2,699.58 for the period 19th June to 16th July 2023, which was the day the applicants moved out of the property. The applicants’ case[20]The applicants say that they were all students at University College London studying full-time for a bachelor’s degree in economics. In September 2022 they were looking for accommodation for the three of them to share. They were friends but did not have any type of romantic relationship. Each constituted separate households.[21]They learnt of the availability of the flat, which is very near Barons Court underground station, from a firm of estate agents called Tempocasa. It was a three-bedroom flat in a purpose-built block containing some 21 flats. They dealt initially with a man called Luke Newman and later with a woman called Lara, both from that agency. Around 15th September 2022, they inspected the property. Following the inspection, Mr Newman sent the three applicants two WhatsApp messages, which read: “Hi guys, I have just sent you all a template tenancy agreement… Please can you all email me the following: ● passports ● share codes ● proof of enrolment (last year is fine)…”[22]There was discussion with Mr Newman as to having a lead tenant. Mr Newman said that the landlord had had a previous bad experience renting to students as joint tenants, because it was difficult to chase arrears when the rent was due from two or three tenants. The landlord therefore only wanted one name on the tenancy agreement. The applicants initially wanted to put Mr Nandalan forward as the lead tenant, but then they decided Mr Kudhail should be the sole named tenant.[23]In the course of the tenancy, Lara made it clear that the landlord did not have an HMO licence. She therefore wanted the applicants to pretend that only one of them lived at the property.[24]There were problems of initially a fly infestation and later a mould problem. The applicants accepted that the landlord had carried out some works in response to these problems.[25]In June 2023 construction works were carried out to the property. A wall between two of the bedrooms was removed so as to make one large bedroom. Access was then given to a neighbouring part of the building, where there was another bedroom. This neighbouring part had originally been blocked off from the flat at the time when the applicants moved in. The original bathroom could no longer be used, but a bathroom was available in the newly opened neighbouring part of the building. The applicants complain that the construction works left the flat in a dirty state and that the landlord used the original bathroom for storage. Mr Choi was particularly aggrieved that the bedroom into which he had been moved was dirty. They exhibit photographs which show no proper making good after the works.[26]The applicants also complain that the landlord did not secure their deposit with the Tenancy Deposit Scheme until 7th March 2023. The respondent’s case[27]The respondent gave evidence and explained that he is a medical man. He had the flat in issue in this case for some 32 years. This is the only flat he rents out. He lives in one of the four adjacent blocks of Talgarth Mansions. His secretary for his medical practice is Sarah Laura. She and Lara had all the dealings with applicants.[28]He says he was unaware that the flat was occupied by the three applicants. He says he relied on the terms of the tenancy to ensure that there was no requirement for an HMO licence. The tenancy agreement prohibited occupation save as a single family home. He denied ever knowing that there was more than one person living there. He did not consider that the knowledge of Lara or Ms Laura should be imputed to him.[29]He accepted that the telephone number on the tenancy agreement, which was used to send text messages to him, was his. He denied that he received any WhatsApp messages and said that he had only installed WhatsApp on his phone in recent weeks. He accepted in cross-examination that his phone was an iPhone and that he had access to the iPhone messaging service. He said that in any event Lara and Ms Laura had access to all messages and dealt with them. Assessment of the witnesses[30]The applicants in our judgment were patently honest witnesses. They gave their evidence in a straightforward manner and accepted areas where they might be mistaken. Much of their testimony was supported by the text messages which they exhibited.[31]By contrast, Dr Husaini was an extremely poor witness on whom we are unable to place reliance in relation to matters in dispute. It is right to note that Dr Husaini is hard of hearing. This meant that questions had sometimes to be repeated and often louder. His ability to hear was also affected by the advocates’ tendency to speak over each other, despite the Tribunal having repeatedly to intervene to stop them doing so. We make full allowance for these issues.[32]Nonetheless, there are substantive grounds for rejecting his evidence. Firstly, it is clear that Mr Newman knew the three applicants were students. This is shown from his request for “proof of enrolment”, which can only refer to their student status. It is not credible that Mr Newman did not relay this information to Dr Husaini. Indeed Dr Husaini accepted that the flat was very attractive to students, because of all the nearby universities. The current applicants were, he said, one of three or four serious expressions of interest in renting the flat.[33]Secondly, Dr Husaini asserted that he thought there was only one person, Mr Kudhail, living at the flat. Yet, he said, when giving evidence in chief, that he knew about the complaint in relation to flies. After explaining that he had dealt with the fly problem, his answer to his own counsel’s question was: “We made it easy for them.” (Our emphasis: this is otherwise a verbatim note.) This in our judgment was a reference to the three applicants. Dr Husaini’s attempt to explain his reference to “them” as including the agents was unconvincing. Nor was this use of “they” or “them” in reference to the applicants a one-off. He repeated that use throughout his evidence. For example, in relation to the construction works he said: “We let them use the big bathroom by opening out the flat.” In our judgment, this use of language shows that he was aware at the time that the three applicants were living at the flat. His denial of such knowledge is in our judgment untrue.[34]Thirdly, his assertion that he did not read the messages sent to his own phone is not credible. On 19th September 2022 at 2.30pm there is a message: “Dear Alex, This is Saurav Nandalan, we met last week at your property 50 Talgarth Mansions. I will be the one coming today to collect the keys for the flat. I am confirming that pick up is at 6 o’clock at the flat?” There is a reply: “Thanks, welcome.” There is no evidence that reply was sent by anyone else. There are other messages which in our judgment he must have seen. For example, on 21st September 2022 there is an exchange of messages where Mr Kudhail says that Mr Nandalan would be calling round to pick up two more keys to the flat. He receives a reply: “Thanks, no worries…” There is no indication anyone other than Dr Husaini would be handing over the keys, or that it was anyone other than Dr Husaini who was making the reply.[35]Fourthly, he says that neither Lara nor Ms Laura ever discussed the existence of the three occupiers with him. This is inherently unlikely and again is belied by the texts. For example, Lara told the applicants that the landlord would pay compensation due to the disturbance caused by the construction works. Now it is true that no compensation has been paid. (Dr Husaini says this is because the tenants left the flat two months early without his agreement.) However, it is not credible that Lara would be making an offer of compensation without having the authorisation of Dr Husaini to do so. Conclusions[36]We find beyond reasonable doubt that the three applicants were full-time students in higher education. Although Mr Ahmad cross-examined them as to their all having residences at their family homes outside London, this is in our judgment irrelevant. By virtue of sections 254 and 259(1) and (2)(a) of the 2004 Act, the flat is deemed to be their main residence.[37]We find as a fact that at all times the landlord knew that the flat was going to be and was occupied by the three applicants and that they were full-time students in higher education. The landlord had a belief that the insertion of terms in the lease that the property was let to one tenant to use as a single family home with a prohibition on sub-letting would mean he did not require an HMO licence. We find as a fact that the terms as to use as a single family home was a fiction. At all times Dr Husaini knew that the three applicants were full-time students who were going to occupy the property as their residence during their tertiary education at University College London.[38]His main defence of reasonable excuse is that he relied on the terms of the tenancy agreement to assume that there was no HMO. By reason of our finding as to his knowledge, we reject this defence.[39]We should add that even if (contrary to our findings of fact) Dr Husaini did not know the truth, as a secondary reason we hold that the knowledge of Lara and Ms Laura of those facts stand to be imputed to him as his agents, so again his had no reasonable excuse. Even if the knowledge of Lara and Ms Laura do not stand to be imputed to him, as a tertiary reason, we find that Dr Husaini cannot rely on having a reasonable excuse. Reliance on his agents would not have been reasonable on the facts of this case.[40]Accordingly, we find beyond reasonable doubt that from 19th September 2022 until 16th July 2023 the respondent was committing an offence under section 72(1) of the Housing Act 2004. Remedy[41]We turn then to the question of remedy. The first question is jurisdictional. The first payment of £16,800 was made on 18th September 2022. That payment pre-dates (albeit by one day) the commission of the offence by the landlord. The case of Pearton is on all fours with the current case. Accordingly in our judgment, we have no power to make a rent repayment order in respect of that payment.[42]The second question is whether we should make a rent repayment order at all in respect of the balance of the rent paid by the applicants. In our judgment we should. This was a bad case of a landlord making a deliberate decision not to apply for an HMO licence.[43]The third question is as to the amount. Mr Leacock submitted that this was a worse case than Newell, where the Upper Tribunal had ordered 60 per cent of the rent to be repaid. He submitted that 70 per cent would be an appropriate percentage. We agree. In the current case, Dr Husaini acted deliberately in not seeking a licence, whereas in Newell, the omission was inadvertent.[44]We should add, in case there are any subsequent County Court proceedings for disrepair by the applicants or any claim by the landlord for the last two months’ rent, we have not taken into account these issues in fixing the 70 per cent figure. Firstly, we would have needed much more evidence as to whether there was actionable disrepair. Secondly, if we did fix the percentage based on actionable disrepair constituting conduct which stood to be taken into consideration in assessing the amount of the rent repayment order, there would be impossible difficulties in the County Court judge assessing damages for disrepair. The County Court would be reluctant to give double-recovery to the tenants. Thirdly, the wilful refusal of the landlord to obtain an HMO licence is sufficient to justify the 70 per cent repayment order. For completeness we should add that the late payment of the deposit to the Tenancy Deposit Scheme has had no consequences. We do not need to investigate the reasons for the late payment. Even if it were a relevant matter of conduct, it would not affect the award we make.[45]The last question is whether the order should be in favour of Mr Kudhail alone or all three applicants. In our judgment, although Mr Kudhail was the tenant at law under the agreement, he held the term of the tenancy on trust for himself, Mr Nandalan and Mr Choi jointly. There is nothing in sections 40 and 41 of the 2016 Act which limits the expression “tenant” to a tenant at law. There are good reasons (as the current case shows) for “tenant” to include tenants in equity. If Mr Kudhail had decided not to make a claim himself for a rent repayment order, the other two applicants would not be able to claim at all unless they had an entitlement as tenants in equity. Accordingly it is appropriate in our judgment to make the order in favour of all three applicants jointly. If we are wrong in this, then we would make the order in favour of Mr Kudhail alone for the full amount.[46]Our calculation of the award is this. There are three months’ rent at £2,800 per month, so as to total £8,400, plus the last period of rent paid at £2,669.58. The total rent which can be the subject of a rent repayment order is therefore £11,069.58. 70 per cent of that figure is £7,748.70. Costs[47]We have a discretion as to the costs payable to the Tribunal. These comprise the application fee of £330 and the hearing fee of £220. In our judgment the applicants have won. It is true that the amount of rent repayment order is substantially less than the total rent of £27,869.58 originally claimed, but the applicants in our judgment have still had a major degree of success. We therefore order the landlord to reimburse them the full amount of the fees payable to the Tribunal. DETERMINATION(a) It is ordered that the respondent landlord do pay the three applicants jointly the total sum of £7,748.70 by way of rent repayment order.(b) It is ordered that the respondent landlord do reimburse the applicants the sum of £550 in respect of the fees payable to the Tribunal. Signed: Judge Adrian Jack Dated: 14th July 2025