Judge N HawkesMrs L Crane MCIEHMr C PiarrouxMr Savva Gordeev for the Applicantinstructed by Mills Chody LLP Application for a rent repayment order by tenant for the RespondentDate 14 October 2024Property: London HA7 4FE Mr Savva Gordeev (1)
DECISION
[1]The Tribunal dismisses the Applicants’ application for a rent repayment order.[2]The Tribunal dismisses the Applicants' application for an order for the reimbursement of Tribunal fees. The background[1]By an application dated 5 December 2023 (“the application”), the Applicants applied for a rent repayment order (“RRO”) pursuant to section 41 of the Housing and Planning Act 2016 (“the 2016 Act”) against the Respondents.[2]In the application, the Applicants state (emphasis supplied): “I allege offences under The Housing and Planning Act 2016 (HaPA) Chapter 4 Rent Repayment Order (RRO) legislation and apply for a RRO under s41 of that Act as follows: The flat is in the London Borough of Harrow (LBH), which has an Additional Licensing scheme that came into force on 6 August 2021. All Borough HMOs, as defined by section 254 Housing Act 2004, which are occupied by three or more individuals comprising two or more families, are required to be licensed. But it was not licensed. This is an offence listed in s40(3) of HaPA at line 5: an offence under HA s72(1). Savva Gordeev (SG) and Iuliia Chesnokova (IC) were occupants of the subject property between 24 October 2022 and 23 October 2023. The third occupier, Dmitrii Galkin (DG), was an occupant in the subject property between 24 October 2022 and moved out on 12 May 2023, which ended the alleged offence. Therefore, I apply for a total rent amount of £15,236 to be repaid to SG for the period from 24 October 2022 to 12 May 2023, calculated as follows: 6 x £2,300 = £13,800 total for a full six months plus 19 * £75.61 = £1,436 total for 19 days using daily rate of £2,300 x 12 / 365 = £75.61. I also apply for the award of the fees I have paid under rule 13(2) of the Tribunal Rules 2013, namely £100 application fee and £200 hearing fee, a total of £300.”[3]Accordingly, the Applicants assert that, during their period of occupation of 6 Windsor House, Pynnacles Close, London HA7 4FE (“the Property”), the Respondents had control of or were managing a house in multiple occupation (“HMO”) which was required by be licenced under the Housing Act 2004 (“the 2004 Act”) but which was not so licenced.[4]On 7 March 2024, the Tribunal issued Directions (which were corrected on 4 April 2024) leading up to a final hearing. The hearing[5]The final hearing took place at 10 Alfred Place, London WC1E 7LR on 12 July 2024. The Applicants attended the hearing in person and communicated via a Russian interpreter. The Respondents were represented by Mr Granby of Counsel, instructed by Mills Chody LLP Solicitors, and the First Respondent attended the hearing in person. The Second Respondent did not attend the hearing.[6]The Tribunal heard oral evidence of fact from the Applicants and from the First Respondent.[7]The hearing was listed for three hours but the Tribunal agreed to sit for the whole day. Notwithstanding this, there was insufficient time to hear the parties’ closing submissions on the day of the hearing. Accordingly, after consulting the parties, directions were given for the Respondents to file and serve written closing submissions by 4 pm on 9 August 2024, for the Applicants to file and serve written closing submissions by 4 pm on 6 September 2024, and for the Respondents to file and serve any reply on the law (if so advised) by 4 pm on 27 September 2024.[8]Written closing submissions were received from both the Applicants and the Respondents but no Reply on the law was submitted by the Respondents.[9]The Tribunal reconvened on 11 October 2024, in the absence of the parties, in order to consider the evidence which was presented at the hearing and the parties’ written closing submissions. The issues in dispute[10]Section 40 of the 2016 Act provides that a RRO is an order requiring the landlord under a tenancy of housing in England to repay an amount of rent which has been paid by a tenant.[11]Statutory guidance for Local Housing Authorities concerning RROs under the 2016 Act was published on 6 April 2017 (“the Statutory Guidance”). The Tribunal has had regard to the Statutory Guidance in determining this application.[12]Section 41 of the 2016 Act provides:(1) A tenant … 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.”[13]Section 43 of the 2016 Act provides: 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.[14]The relevant offences are set out at section 40 of the 2016 Act. They include the offence under section 72(1) of the 2004 Act of controlling or managing an unlicensed HMO and unlawful eviction or harassment of occupiers under sections 1(2), (3) or (3A) of Protection from Eviction Act 1977.[15]Section 72 of the 2004 Act provides, so far as is material: 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. … (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.[16]The Respondents accept that the criteria contained in section 72(1) of the 2004 Act are met but submit that they have a “reasonable excuse” pursuant to section 72(5) of the 2004 Act.[17]The Applicants raise numerous procedural issues and dispute that the Respondents have made out their case concerning “reasonable excuse.” They also make allegations of harassment and/or unlawful eviction. In the event that the Tribunal is satisfied beyond reasonable doubt that a relevant offence has been committed, there is a dispute between the parties concerning the quantum of any RRO. The Tribunal’s determinations Procedural matters[18]At the commencement of the hearing, the Applicants applied for the Respondents to be debarred from defending these proceedings on account of procedural failings.[19]In their written closing submissions, the Applicants state: Rs failed to comply with the Directions (07 March 2024 / 04 April 2024). They have not provided:a. listing questionnaire by 29 March 2024,b. Respondents’ Bundle by 10 May 2024,c. evidence of the amount of rent received in the period (apart one month),d. any documentary evidence on the financial circumstances (like tax returns, evidence of expenditure, etc),e. any evidence of any outgoings/bills paid (like a breakdown of agency fees, maintenance, repairs, etc),f. any other documents relied upon (like visa/residence, work contract, rent agreement, complete contract with the agent, etc).[6]Mr Ray Brownson (Mills Chody) self-appointed as representative using Civil Procedure Rules (Form N434), which do not apply to proceedings before the FtT.[7]Rs failed to comply with the Procedural Judge Shepherd’s order and didn’t provide the Respondents’ Bundle by the extended 20 May 2024 deadline.[8]Mr Richard Granby (Tanfield Chambers) was allowed by FtT to represent Rs at the gP (rule 14(5) of the 2013 Rules). However, we didn’t receive any notice of appointment (as per rule 14(2) of the 2013 Rules) that would authorise him to help Rs with preparing and conducting the Tribunal legal case, including Skeleton Argument (08 July 2024) and Final Submissions (07 August 2024) prepared, signed and dated by him. Therefore, we ask FtT to reject those submissions.[20]The issue of the Respondent’s solicitor using an incorrect form was raised at the hearing. Rule 14 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (“the 2013 Rules”) includes provision that:(1) A party may appoint a representative (whether legally qualified or not) to represent that party in the proceedings.(2) If a party appoints a representative, that party must send or deliver to the Tribunal and to each other party written notice of the representative's name and address.(3) Anything permitted or required to be done by or provided to a party under these Rules, a practice direction or a direction may be done by or provided to the representative of that party except— (a) signing a witness statement; or (b) sending or delivering a notice under paragraph (2), if the representative is not a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation within the meaning of that Act.[21]Mills Chody LLP, the Respondents’ solicitors, are authorised persons within the meaning of rule 14(2)(b) of the 2013 Rules and they may therefore serve notice under rule 14(2).[22]Mills Chody LLP served notice of acting using County Court form N434. This form also contains the information required under rule 14(2) of the 2013 Rules. Accordingly, the Tribunal is not satisfied that Mills Chody LLP has failed to comply with rule 14. Mr Granby is not instructed on a direct access basis by the Respondents but rather he is a barrister instructed by Mills Chody LLP. Accordingly, the Tribunal is not satisfied that there is any requirement for Mr Granby to serve a separate notice under rule 14(2).[23]In any event, if the use of form N434 in this context and/or the absence of a rule 14 notice concerning Mr Granby could potentially breach the 2013 Rules, the Tribunal would waive any such defects pursuant to rule 8(2)(a) of the 2013 Rules, having considered the matters set out in the overriding objective at rule 3 of the 2013 Rules. In particular, it would be wholly disproportionate to reject all of the submissions made on behalf of the Respondents when the Applicants have the name and address of the solicitors who represent the Respondents, and who have instructed Mr Granby, and when the Applicants have ascertained that Mr Granby is at Tanfield Chambers.[24]As regards the other procedural matters raised by the Applicants, the history is as follows. By an application dated 12 May 2024, the Applicants applied for an order: ...disbarring the Respondents from taking any further part in the proceedings. Order under the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, rule 9.[25]The grounds for this application were that: The Respondents have failed to co-operate with the Tribunal and have failed to comply with the Directions, which stated that failure by the Respondents to comply with the Directions could lead to the bar from taking any further part in all or part of the proceedings. The detailed grounds and evidence are stated in the Appendix.[26]On 21 May 2024, Judge Shepherd determined this application stating: This is a serious case involving allegations of criminal activity. In these circumstances the Respondent needs the opportunity to defend the claim. The application to debar is dismissed and the Respondent's time for compliance is extended to 20/5/24. All other directions remain the same.[27]Accordingly, Judge Shepherd considered the procedural history up until 21 May 2024 and it is not for this Tribunal to determine issues which have already been determined by Judge Shepherd. The Respondents accepted that they then provided their bundle one day after the deadline given by Judge Shepherd.[28]At the commencement of the hearing, having carefully considered the overriding objective pursuant to rule 3 of the 2013 Rules, the Tribunal waived this defect applying rule 8(2)(a) of the 2013 Rules. The overriding objective contains provision that dealing with a case fairly and justly includes avoiding unnecessary formality and seeking flexibility in the proceedings and ensuring, so far as practicable, that the parties are able to participate fully in the proceedings. There was no evidence that the Applicants had been significantly prejudiced by the delay of one day in receiving the Respondents’ bundle. The bundle was received by the Applicants over 7 weeks before the hearing.[29]It was open to the Applicants to cross-examine the First Respondent and to make submissions concerning what they considered to be any deficiencies in the Respondents’ documentary evidence and they have done so. They cross-examined the First Respondent for three hours and were therefore allocated a considerable amount of time in which to put their case to him. Accordingly, if and insofar as any of the alleged procedural failings referred to were not before Judge Shepherd, the Tribunal is not satisfied that it would be fair and just to debar the Respondents from defending these proceedings on the strength of them.[30]The Applicants also complain that the Respondents’ skeleton argument and written closing submissions contain new arguments and/or a new position and that they are prejudiced due to lack of notice. We have based our determination upon the evidence which was presented at the hearing and upon the parties’ written closing submissions.[31]In our judgment, the Respondents’ written closing submissions fairly comment upon the evidence and the relevant law. However, if (which we do not consider to be the case) anything potentially unexpected is contained in the Respondents’ written closing submissions, the Applicants had from 9 August 2024 until 4 pm on 6 September 2024 to consider the Respondents’ written closing submissions, to take independent legal advice if they wished to do so, and to prepare their written response.[32]On sending out the directions for the provision of the written closing submissions the Case Officer enclosed a Legal Advice Flyer and wrote: “The Case Officer has been asked to send out a Legal Advice Flyer listing organisations which may be able to provide independent legal advice, some of which may be able to do so free of charge.” Further, the Applicants did not apply for any additional time to consider the Respondents’ written closing submissions and to prepare their written closing submissions in response.[33]In all the circumstances, we are not satisfied that the Applicants have been prejudiced by unexpected material, if any, in the Respondents’ written closing submissions. Accordingly, if any procedural defect has occurred, we exercise our discretion to waive it 8(2)(a) of the 2013 Rules, having considered the matters set out in the overriding objective at rule 3 of the 2013 Rules. The “reasonable excuse” defence[34]As regards the relevant law, the Respondents submit as follows:[8]The “reasonable excuse”, like the offence to which it relates, is for continuing to manage and control the HMO without a license not not applying for a license Palmview Estates Ltd v Thurrock Council [2021] EWCA Civ 1871; [2022] 1 W.L.R. 1896. …[17]In the context of HA 2004/ Housing and Planning Act 2016 there is little guidance on what a ‘reasonable excuse’ is. In Palmview the Court of Appeal, per Asplin LJ held: There is no definition of reasonable excuse in the 2004 Act. However, it seems to me that the plain meaning of the words used in the subsection as a whole and taken in context is that there is a defence if, viewed objectively, there is a reasonable excuse for having control of or managing an HMO without a licence.[18]However, there is, as the Upper Tribunal, per the Deputy Chamber President in Marigold v Wells [2023] UKUT 33 (LC) has noted in no shortage of guidance on ‘reasonable excuse’ more generally. In Marigold the Upper Tribunal (Lands Chamber) referred to the Upper Tribunal Tax and Chancery Chamber case Perrin v HMRC [2018] UKUT 156 (TCC) stating:[48]The Tribunal in Perrin concluded its decision with some helpful guidance to the FTT, much of which is equally applicable in the sphere of property management and licensing. At paragraph 81 it said this: “81. When considering a “reasonable excuse” defence, therefore, in our view the FTT can usefully approach matters in the following way:(1) First, establish what facts the taxpayer asserts give rise to a reasonable excuse (this may include the belief, acts or omissions of the taxpayer or any other person, the taxpayer’s own experience or relevant attributes, the situation of the taxpayer at any relevant time and any other relevant external facts).(2) Second, decide which of those facts are proven.(3) Third, decide whether, viewed objectively, those proven facts do indeed amount to an objectively reasonable excuse for the default and the time when that objectively reasonable excuse ceased. In doing so, it should take into account the experience and other relevant attributes of the taxpayer and the situation in which the taxpayer found himself at the relevant time or times. It might assist the FTT, in this context, to ask itself the question “was what the taxpayer did (or omitted to do or believed) objectively reasonable for this taxpayer in those circumstances?” 49 The Tribunal then dealt with a particular point which is regularly encountered in HMO licensing cases and which therefore merits attention: "82. One situation that can sometimes cause difficulties is when the taxpayer's asserted reasonable excuse is purely that he/she did not know of the particular requirement that has been shown to have been breached. It is a much-cited aphorism that "ignorance of the law is no excuse", and on occasion this has been given as a reason why the defence of reasonable excuse cannot be available in such circumstances. We see no basis for this argument. Some requirements of the law are well-known, simple and straightforward but others are much less so. It will be a matter of judgment for the FTT in each case whether it was objectively reasonable for the particular taxpayer, in the circumstances of the case, to have been ignorant of the requirement in question, and for how long."[19]The Upper Tribunal has considered reliance on managing agents, either expressly or in passing, in a number of cases. In Aytan v Moore [2022] UKUT 27 (LC); [2022] H.L.R. 29 the Upper Tribunal (obiter) said this: 40 We would add that a landlord’s reliance upon an agent will rarely give rise to a defence of reasonable excuse. At the very least the landlord would need to show that there was a contractual obligation on the part of the agent to keep the landlord informed of licensing requirements; there would need to be evidence that the landlord had good reason to rely on the competence and experience of the agent; and in addition there would generally be a need to show that there was a reason why the landlord could not inform themself of the licensing requirements without relying upon an agent, for example because the landlord lived abroad.[20]Although the Respondents will say that both elements suggested in Ayton are met in this case care must be taken not to read those obiter comments in Ayton as a statute and to consider in each case whether a reasonable excuse is made out (see Marigold which post dates Ayton). It is also notable that in Ayton the landlords owned a block of nine flats (and, through a company, an extensive commercial property portfolio), called no evidence as to the contract with the letting agent and (it appears) managed the property themselves.[35]As regards the relevant law, the Applicants state: “All criteria from Aytan & Ors v Moore & Ors [2022] UKUT 27 (LC) we described earlier in paragraphs 19-32 of the Applicants’ Reply still stand”[36]Having considered all of the circumstances of this case, we are satisfied on the balance of probabilities on the evidence before us that the Respondents have made out their defence that they have a “reasonable excuse” pursuant to section 72(5) of the 2004 Act.[37]As stated above, the First Respondent, Mr Punjabi, was cross-examined by the Applicants for three hours and the Tribunal therefore had a significant amount of time in which to assess his credibility as a witness. Having seen and heard Mr Punjabi give evidence, we have no hesitation in finding him a credible, patient, and courteous witness. We are also satisfied that he was, at all material times, acting on behalf of both Respondents.[38]Whilst the Respondents have not provided every document which the Applicants wish to see, they have provided a 57 page Respondents’ bundle. Having seen and heard Mr Punjabi give evidence, we are satisfied that any omission on the Respondents’ part to produce documents requested by the Applicants which are potentially available occurred due to Mr Punjabi’s genuinely held understanding of what is relevant and proportionate and/or due to privacy concerns, rather than due to any wish to keep relevant information from the Tribunal.[39]We note that material requested by the Applicants included information concerning visa cards and tax returns (see paragraphs 14 and 15 of the Applicants’ closing submissions). Where documents are unavailable, for example, a screenshot of the letting agents’ website at the time when Mr Punjabi instructed them, it was clearly impossible for the Respondents to produce them.[40]Mr Punjabi gave oral evidence that the Respondents purchased the Property in around 2022 with the intention of occupying it as their family home. He stated that the Respondents have been permanently resident in Singapore since 2006, because Mr Punjabi is employed in Singapore, but that they have contemplated returning to live in the UK and occupying the Property as their family home. The Respondents own one other Property in the UK and they are not large-scale professional landlords.[41]Mr Punjabi stated that, since 2022, the Property has been managed by Ellis & Co. He gave evidence that Ellis & Co is over 150 years old; that it has multiple branches; that before instructing Ellis & Co he was aware that they had won industry awards; and that Ellis & Co was highly recommended to him by word of mouth by both family and friends. He said that Ellis & Co also was the letting agent situated closest to the Property. We accept this evidence.[42]On the basis of Mr Punjabi’s oral evidence, we are satisfied that the Respondents took reasonable steps to find reputable letting agents and that they had good reason to rely on the competence and experience of Ellis & Co. We note that the obligation on the Respondents is not to take all possible steps to investigate potential managing agents and, in our judgment, the steps taken by Mr Punjabi on behalf of the Respondents were reasonable and proportionate although others might have approached the task differently.[43]Mr Punjabi was not in a position to comprehensively answer questions regarding the managing agents’ company structure and their use of franchise agreements. It was not suggested that the Respondents have any legal expertise and, so far as they were concerned, they were simply instructing Ellis & Co to be their letting agents. We do not find it surprising that they are unable to give a more detailed account of the company structure behind Ellis & Co.[44]Mr Punjabi gave evidence that the Respondents chose to enter into a “fully managed” agency agreement with Ellis & Co because they were resident in Singapore and, using the fully managed service, would ensure that they met any “regulatory requirements”. He stated that there were four different options when it came to instructing Ellis & Co and they chose the fully managed service to ensure that all their legal obligations as landlord were met. He gave evidence that he had relied upon the Ellis & Co website.[45]The Applicants put to Mr Punjabi that he was lying and that there was no such website. They were then asked if they had any objection to the Tribunal being referred to the current version of the Ellis & Co website and they stated they did not object. The current version of the website states that the fully managed service includes: “Management of all compliance matters to help you meet your legal and safety obligations as a landlord.”[46]The Applicants now submit that they are prejudiced by the admission of this late evidence during the course of the hearing. We place very little weight on the current wording of the Ellis & Co website because it is not evidence of the state of the Ellis & Co website immediately before the agency agreement was entered into. Accordingly, we do not accept that the Applicants have been significantly prejudiced. However, we accept Mr Punjabi’s oral evidence that(i) the website also contained a statement to this effect in 2022 immediately before the agency agreement was entered into and(ii) that it was because he understood that the agents would ensure compliance with all legal requirements whilst the Respondents were out of the jurisdiction in Singapore that the Respondents chose to enter into the fully managed letting agreement with Ellis & Co.[47]The Respondents also rely upon a written agency agreement which includes provision that the “Agency Details” are Ellis & Co Stanmore and that the “Agency Proprietor” is DK Stanmore Limited. The agreement is headed Ellis & Co Sales and Letting. At page 9 of the agreement, the box “fully managed” has been ticked which accords with Mr Punjabi’s evidence that the Respondents opted for the fully managed service. Having carefully considered all of the evidence and submissions, we are satisfied on the balance of probabilities that the Respondents chose the fully managed service notwithstanding the points raised in the Applicants’ closing submissions. At the end of the agreement, both Respondents sign giving their address in Singapore. This adds support to Mr Punjabi’s oral evidence concerning the Respondents’ residence in Singapore.[48]The agreement is said to be signed on behalf of the Agency Proprietor. It is an express term of the agreement that the agents will “recommend the type of tenant who would be most suitable”. The Respondents submit that the most suitable tenants must be those who can occupy the Property without breaching any legal requirements. We accept Mr Punjabi’s oral evidence that this is the only signed written letting agency agreement he has concerning the Property.[49]The Applicants did not put to Mr Punjabi that there is a current disclaimer in the terms and conditions on the website (a matter raised in their closing submissions). In our view, the Applicants cannot be criticised for failing to do so because of the way in which the evidence concerning the current state of the website emerged during the hearing. However, as stated above, we place very little weight on the current version of the website. The Respondents submit:[25]The First Respondent was, it is submitted, palpably ‘respectable’ and keen to ensure that he complied with all obligations (private and public) on him – he was not a ‘rogue’ landlord but a man with an international career who retained links, including ownership of property, with the UK. The attraction to the Respondents of ‘full management’ was that there were far removed from the jurisdiction and wanted matters looked after for them by competent agents.[26]The publication requirements where a local authority implement an additional licensing scheme are provided for by s.59 of the Housing Act 2004 / Reg 9 of Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006/373- so far as is relevant these are advertisements in local newspapers and displaces in municipal buildings. These, naturally, would not come to the attention of someone resident overseas, although there is provision for the information to be made available online but (as the First Respondent said) one has to know to look. It might be said that a person leaving the UK for a job overseas now in 2024 might be taken to have a degree of awareness of the licensing regime particularly if they were already letting property – this is not true of 2006.[51]The Tribunal accepts on the balance of probabilities Mr Punjabi’s evidence and we also accept these submissions. We are satisfied that the facts asserted by Mr Punjabi objectively amount to a “reasonable excuse” taking into account the experience and other relevant attributes of the Respondents and the situation in which the Respondents found themselves at the relevant time.[52]The Respondents had been living in Singapore since 2006, they had two UK properties but were not otherwise landlords; and there was no suggestion that they have knowledge of English company or contract law or any other relevant legal expertise. We would not expect the First Respondent, as a lay person with other professional commitments, to investigate the company law/franchise position of proposed managing agents or to approach the task of selecting managing agents with the degree of close scrutiny proposed by the Applicants during the hearing. Harassment and/or unlawful eviction[53]At paragraph 43 of their closing submissions the Applicants state that they rely upon sections 1(2), (3) or (3A) of the Protection from Eviction Act 1977: 1.— Unlawful eviction and harassment of occupier. … (2) If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises. (3) If any person with intent to cause the residential occupier of any premises—(a) to give up the occupation of the premises or any part thereof; or(b) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof; does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence. (3A) Subject to subsection (3B) below, the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if— (a) he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or (b) he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence, and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises.[54]The Tribunal has taken into account the totality of the Applicants’ case. However, the complaints by the Applicants which in our judgment are the most significant are as follows:(i) the managing agents let themselves into the Property while the Applicants were on holiday to turn off a fire alarm;(ii) the Respondents served a section 21 notice on the Applicants;(iii) the Respondents sought to increase the rent payable by the Applicants but then relet the property at a lower rent than the proposed increased rent;(iv) there was a draught through the balcony door;(v) the light at the back of the microwave did not work properly;(vi) the Applicants were provided with gas safety certificate stating that the use of the boiler was not safe (the date of this certificate may be prior to the commencement of the tenancy), they were then told that the boiler had been repaired but were not provided with a new further safety certificate confirming that this was the case until later;(vii) evidence was not provided to the Applicants that right to rent checks were carried out in respect of the third tenant.[55]The Respondents were legally entitled to serve the section 21 notice and to propose a rent increase. The evidence concerning the gas boiler was unclear. We are not satisfied on the balance of probabilities that the boiler was out of repair during the Applicants’ tenancy. Having heard the evidence of the Applicants and the evidence of the First Respondent we are not satisfied on the balance of probabilities that the Applicants have established that the Respondents had the necessary intent, if any of the matters raised could otherwise potentially amount to harassment and/or unlawful eviction (whether separately or cumulatively). Conclusion[56]The Tribunal is not satisfied beyond reasonable doubt that a relevant offence has been committed. The Tribunal therefore dismisses the Applicants’ application for a rent repayment order.[57]In all the circumstances and having regard, in particular, to the fact that the Applicants’ application has been dismissed, the Tribunal does not exercise its discretion pursuant to rule 13(2) of the 2013 Rules to make an order for the reimbursement of Tribunal fees. Additional observations[58]Having heard extensive evidence and argument, the Tribunal makes the following observations which do not form part of the substantive decision.[59]If the Tribunal had determined that a RRO should be made on the grounds of a failure to licence, the Tribunal would have followed the procedure summarised in Housing Law Encyclopaedia (in reliance on Acheampong v Roman [2022] UKUT 239 (LC)): “When assessing the amount of rent which can be ordered to be repaid, regard should be had to the guidance in Acheampong v Roman and other appeals [2022] UKUT 239 (LC) in which the Upper Tribunal held that the correct approach is as follows:(a) ascertain the total rent paid during the relevant period;(b) deduct any element of the rent which is actually a payment for utilities or other matters which only benefit the tenant (e.g. gas, electricity, internet access);(c) assess the seriousness of the offence both in comparison to other types of offence in respect of which a rent repayment order can be made and in relation to the same type of offence;(d) assess what proportion of the rent (less the deduction at (b)) is a fair reflection of that seriousness(e) make any adjustments necessary (whether upwards or downwards) to reflect any wider circumstances.”[60]It is common ground that the total rent paid during the relevant period is £15,236 and that there is nothing to be deducted in respect of utilities and other matters which only benefited the tenants.[61]As regards the seriousness of the offence both in comparison to other types of offence in respect of which a rent repayment order can be made (which would include unlawful eviction) and in relation to the same type of offence we would have assessed the seriousness of the offence as low. If Mr Punjabi’s evidence were, contrary to the Tribunal’s determination above, insufficient to amount to a reasonable excuse it would amount to very significant mitigation. Before making any adjustments to reflect the wider circumstances, we would have assessed the proportion of the rent which fairly reflects that seriousness as just above 25%.[62]We accept the Applicants’ oral evidence that they experienced a draught through a defective balcony door and that this door was not repaired within a reasonable period of time. However, in our view, their evidence concerning the nature and extent of the inconvenience was overstated. The First Applicant gave evidence that for seven months they were “freezing in the flat” and had to turn on heating devices. However, despite the fact that the Applicants accepted that the First Applicant is able to communicate well in writing, the Tribunal was only referred to one written complaint.[63]We accept the Applicants’ oral evidence that the microwave light did not work correctly (although microwave otherwise functioned well) and we accept that the managing agents let themselves into the Property while the Applicants were on holiday to turn off a fire alarm which was sounding. Whilst this will have caused some degree of inconvenience and/or concern but we do not accept that any disruption was significant.[64]The Respondents were entitled to serve a section 21 notice, whether or not the Applicants were on holiday at the material time. They were not obliged to specify their grounds for seeking possession. They were also entitled to propose a rent increase. The Respondents chose to live with the third occupant and it was common ground that the third occupant had the right to rent. Accordingly, we are not satisfied that the documentation concerning his right to rent checks is of any significance in these proceedings. We found the evidence concerning the boiler unclear and we are not satisfied on the balance of probabilities that the Applicants have made out their case concerning the boiler. We are not satisfied on the balance of probabilities that any other criticisms of the Respondents and/or their agents are well founded.[65]Taking all of these factors into account, had the Tribunal made an RRO on the grounds of a failure to licence, the RRO would have been in the sum of 30% of the total rent paid during the relevant period. Name: Judge Hawkes Date: 14 October 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).