Judge H CarrJustice for Tenants Ref: 25050 for the ApplicantNone Application for a rent repayment order by tenant Sections 40, 41, 43, & 44 of the for the RespondentDate 18 February 2025Property: 8LJType 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 in the sum of £4,036.66.(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, Yuchen Zhao, seeks a determination pursuant to section 41 of the Housing and Planning Act 2016 (the Act) for a rent repayment order (RRO) in relation to 167B Gunnersbury Lane, London W3 8LJ, the property.[2]The respondent is Mr Brett ‘Keith’ Slater who is the registered owner of the property and is listed as landlord on the tenancy agreement produced by the applicant. The address for service of notices etc stated on the tenancy agreement is 140 Gunnersbury Lane W3 9BA.[3]The applicant is seeking to recover the sum of £9,269.92 for the period 18th June 2022 to 17th June 2023. The initial rent was £680 pcm.[4]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.[5]The application was made and received on 13th June 2024. Directions were issued in this matter on 2nd August 2024. The hearing[6]The applicant appeared at the hearing and was represented by Mr Brian Leacock of Justice for Tenants.[7]The respondent appeared at the hearing although he had not engaged in proceedings previously.[8]The respondent made an application for an adjournment of the hearing. He said that he had an autistic teenage son who had to be home schooled and who was involved with the PREVENT programme. All his energies were engaged in dealing with the local authority special needs bureaucracy and he had no capacity to deal with anything else.[9]Although he accepted that he may have been emailed information about the proceedings he did not read any information pertaining to the proceedings until the previous week when the tribunal sent a letter about the hearing and JFT send copies of previous correspondence. The respondent considered telephoning JFT to discuss the application, but said he was unable to find a telephone number.[10]He needed an adjournment to give him time to prepare properly and to obtain character witnesses.[11]The applicant opposed the application for an adjournment. Mr Leacock gave evidence that JFT had sent documentation relating to the application to 140 Gunnersbury Lane W3 9BA which was the address on the tenancy agreement. They had also emailed the email address provided to the tenants.[12]The applicant’s representatives had taken all the necessary steps to ensure that the respondent was fully informed about the hearing and argued that it would be prejudicial to the applicant to delay the hearing. The applicant had taken a day off work to attend. The decision of the tribunal[13]The tribunal determined to refuse the application for an adjournment. The reasons for the decision of the tribunal[14]The tribunal understands that the respondent has suffered considerable stress over the last year. However, it is important that parties engage fully with proceedings and if they are unable to attend hearings or need more time to prepare they must make the relevant applications for adjournments in good time.[15]The applicant has behaved properly in relation to the application and time and effort have been expended to ensure the respondent has had every opportunity to engage with the process.[16]The tribunal was not persuaded that an adjournment would be to the advantage of the respondent. He is still home-schooling his son and engaging with the local authority. He is likely to remain under considerable stress and find it difficult to prepare any better than he already has for the hearing. The tribunal is very experienced in facilitating participation in the proceedings by unrepresented participants and helping them manage their stress.[17]The tribunal decided that it would give the respondent an hour to read all the papers and prepare his arguments. The hearing would then commence. The background and chronology[18]The property is a three-bedroom maisonette over two floors in a three-storey building with a shared kitchen and bathroom. One of the bedrooms has an ensuite bathroom.[19]The applicant moved into the property on 19th September 2021 and moved out on 17th June 2023.[20]The applicant signed an assured shorthold tenancy agreement on 17th September 2021 at an initial rent of £680 pcm which included utilities at £94.11. There have been rent rises since that date. There is a procedure for rent increases set out in the tenancy agreement.[21]The applicant says, and the respondent agrees, that the property was unlicensed at the commencement of her tenancy and remained unlicenced throughout. No application for a licence was made at any point during the applicant’s tenancy. The issues[22]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[23]The property is situated within an additional licensing area as designated by the London Borough of Hounslow. The additional licensing scheme came into force on 1st August 2020 and ceases to have effect on 31st July 2025. The scheme requires all HMOs with 3 or more occupants to be licensed.[24]The additional licensing scheme has been implemented borough wide.[25]The property met all the criteria to be licensed under the designation and does not qualify for any licensing exemptions.[26]The applicant says that during the period of her claim the property was occupied by at least three persons living in two or more separate households and occupying the property as their main residence. Their occupation of the property constituted the only use of the accommodation.[27]The applicant said that during her period of occupation the property was occupied as follows(i) Dimitrios lived at the property before the applicant moved in and continued to reside at the property after the applicant moved out.(ii) Rahul and Natalie lived at the property before the applicant moved in until June 2022.(iii) Yuki lived at the property from July 2022 and moved out after two weeks(iv) Jenny lived at the property from August 2022 until September 2022(v) Jade lived at the property from September 2022 and continued to reside at the property after the applicant moved out.[28]The applicant was unrelated to any of the other occupiers and was not in a relationship with any of the other occupiers.[29]The applicant produced an email from Housing Enforcement at the LB of Hounslow dated 5th July 2023 as follows: This property has no HMO licence and there is no record of a licence ever being applied for. The Respondent’s evidence[30]The respondent agreed that the property was unlicensed during the period of the applicant’s tenancy. The decision of the tribunal[31]The tribunal determines that the respondent has committed the alleged offence The reasons for the decision of the tribunal[32]The tribunal relies on the evidence from the applicant and the information provided by the local authority. The respondent has admitted the offence. Does the Respondent have a ‘reasonable excuse’ defence?[33]The respondent argues that he has a reasonable excuse defence.[34]He says that he had been assured by the local authority that the property did not need a licence, and he was unaware that the licensing system had changed to cover properties occupied by three individuals.[35]He also referred to the excessive strain that he had been put under by the situation of his teenage sone.[36]The applicant argues that the representations of the respondent are insufficient to substantiate a reasonable excuse defence. The applicant points out that the respondent rents out several properties and should be sufficiently familiar with the law.[37]The applicant also points out that the respondent has no evidence to prove he received any assurances about the property not requiring licensing. Finally, the applicant says that while it is sympathetic with the stress suffered by the respondent it is not sufficient to support a reasonable excuse defence. Decision of the tribunal[38]The tribunal determines that the respondent’s reasonable excuse defence does not succeed. The reasons for the decision of the tribunal[39]Ignorance of the need for an HMO licence is not sufficient for a reasonable excuse defence. The respondent had no evidence of any assurances and admitted that he had failed to keep up to date with licensing changes.[40]The tribunal is sympathetic to the situation that the respondent found himself in. He was clearly suffering a lot of stress. However, if a landlord finds himself in a situation where he cannot meet his responsibilities then it is incumbent upon him to delegate those responsibilities to a professional agent. The respondent told the tribunal he did use an agent for one of his properties and it would have been sensible to get the subject property managed as well. Should the tribunal make an award of a RRO? If so, for what amount? The exercise of the tribunal’s discretion[41]The applicant asked the tribunal to exercise its discretion and make an RRO. The decision of the tribunal[42]The tribunal determines to exercise its discretion to make a rent repayment order. The reasons for the decision of the tribunal[43]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[44]The period for which the RRO is sought is from 18th June 2022 until 17th June 2023.[45]The applicant gave evidence that the initial rent was £680 pcm; the rent was raised to £816 pcm on 1st November 2022 and then raised again to £836 pcm on 1st February 2023. The applicant had to pay an additional payment as arrears as she did not realise her rent had been raised on 1st November 2022.[46]The rent paid during that period was as follows; 18th June 2022 – 30th June 2022 = £290.68 ( 13 days rent at a daily rate of £680 x 12 / 365 = £22.36 x 13) 1st July 2022 – 31st December 2022 = £4080 (6 month’s rent at £680 pcm) 1st January – 31st January 2023 = £816 (One month at raised rent level of £816) 11th January 2023 = £272 (arrears because of rent rise on 1st November 2022) 1st February 2023 = 31st May 2023 = £3,344 (4 months rent at raised rent level of £836) 1st June 2023 – 17th June 2023 = £467.24 (£836 x 12 months divided by 365 days equals a daily rent of £27.48 x 17)[47]The applicant provided evidence of the payment of the rent.[48]The tribunal found that the maximum RRO it could award was £9,269.24. Other arguments concerning the amount of the RRO to be awarded.[49]The applicant argues that no deductions should be made from the rent for utilities.[50]The tribunal disagrees. The tenancy agreement made it clear that a proportion of the rent was for utilities and the tenant has benefited from these.[51]The tribunal notes that the initial rent included an amount of £94.11 for utilities. This was paid for six and a half months.[52]The respondent told the tribunal that he had increased the utilities payments and that these are the increases that the applicant says were increases in rent.[53]The tribunal was not clear, and the respondent was not able to clarify as he did not have the necessary documentation with him, how much of the rent increases were due to increases in utility contributions.[54]In the light of the lack of clarity, but bearing in mind the substantial increase in utility costs during the period of the tenant’s occupation of the premises, the tribunal determined that for the remainder of the claim period it would deduct £130 per month for utility payments.[55]The tribunal determined to deduct £1,195.91 for utilities in total. This is calculated by costing the utilities at £3.00 per day for the first 13 days of the claim period, ie £39.00, plus an additional six months at £94.11, totalling £564.66 plus a further 4 months at £130 pcm totalling £520 and a final 17 days at £4.25 per day ie £72.25.[56]This reduces the amount of the maximum RRO to £8073.33.[57]The applicant submits that the appropriate amount of an RRO would be 75%.[58]The applicant argues that her conduct has been good. She has paid her rent on time and only fell into arrears because she was not aware the rent had been raised.[59]The applicant argues that the conduct of the respondent has been poor(i) Failed to provide a gas safety certificate(ii) Failed to provide an energy performance certificate(iii) Failed to provide a How to Rent Guide(iv) Neglected property maintenance(v) Breached local authority HMO standards for instance he had failed to provide fire doors to the property.[60]The respondent explained that he had provided the necessary certification. His experience as a landlord was such that he found tenants often lost the certificates and other information if they were left in the property. He therefore maintained a folder with the certification in which he showed the tenants when they signed their tenancies.[61]The applicant when asked by the tribunal was not able to say that she had not been shown the necessary certification.[62]The landlord also said that he had never neglected property maintenance. He worked in construction and took pride in the condition of the property. He assured the tribunal that all the doors were fire doors and that the property was cared for above and beyond any legal minimum.[63]The applicant told the tribunal that she did not know whether the doors were fire doors or not. In answer to a question from the tribunal she said that she had been told to say that there were no fire doors by her representative she said yes.[64]The respondent said that in general the conduct of the applicant was good. However, there was a dispute between her and one of the other occupiers of the property about the applicant’s boyfriend staying over. The respondent says that as soon as he was able to make the time he tried to resolve the issues between the applicant and the other occupier. He decided that the only fair way to proceed was to introduce an additional charge for any visitors who stayed overnight.[65]In relation to financial circumstances the respondent says that he makes limited profit from the subject property although two of his other properties provide him with a reasonable income. He has no other source of income and because of the problems with his son he has been unable to work. He has had to pay for 14.5 hours of one to one home schooling per week during the year his son has been excluded from school as the local authority would only cover 17.5 hours of the 32 hours a week required. The decision of the tribunal[66]The tribunal determines to award a RRO at 50% of the maximum RRO payable ie £4,036.66 The reasons for the decision of the tribunal[67]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).[68]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 in this case has already taken the first two steps that the authorities require by ascertaining the whole of the rent for the relevant period and subtracting any element of that sum that represents payment for utilities that only benefitted the tenant. The figure in this case is £1,195.91[69]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.[70]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.[71]In this case the tribunal considered that the case is a less serious example of one of the less serious offences in which a rent repayment order may be made.[72]The reasons for this are as follows:(i) Whilst there has been a failure to licence the property, the property appears to have been in reasonable condition and there is no evidence that the appropriate fire protections were not in place.(ii) The landlord in general appears to have been attentive to the needs of his tenants.(iii) It considers that the applicant overstates the seriousness of the offence.[73]The tribunal decided not to reduce the amount payable because of the conduct of the tenant. There was no evidence to support any allegation that the tenant’s conduct was anything but good.[74]The tribunal has decided not to increase the amount payable because of the conduct of the landlord. Whilst the landlord has not properly engaged with proceedings, the tribunal accepts his explanation and also accepts his evidence that he is a good, hands on, landlord who does his best to make the living conditions of his tenants good.[75]It also accepts that the failure to licence the property was to an extent a result of personal stress.[76]The tribunal has also considered the financial circumstances of the respondent, in particular the fact that he has had to finance one to one tuition for his son and is unable to supplement the income he receives from rent by additional paid work.[77]At this stage the tribunal considers that a RRO of 50 % of the maximum RRO is appropriate and does not consider that any further deductions should be made.[78]In the light of the above determinations the tribunal also orders the respondent to reimburse the applicant her application fee and hearing fee. Name: Judge H Carr Date: 18th February 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).