57 Fowler Road, London E7 0AU: LON/00BB/HMA/2015/0003 LON/00BB/HMA/2015/0003
FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No LON/00BB/HMA/2015/0003
Between
London Borough of NewhamApplicantAfia Ajubi Anokye Application for a Rent RepaymentRespondent
Before
Mr C Gowman BSc MCIEHDate 3 August 2015Property: 57 Fowler Road, London E7 0AUType of application: Order Judge Dickie
[1]The applicant seeks a rent repayment order pursuant to sections 96 and 97 of the Housing Act 2004.[2]The Respondent is the long leaseholder of the property at 57 Fowler Road, London E7 0AU (“the Property”), and has been since 12 November 2007. On 22 November 2007 the Respondent granted Mrs Butt an assured shorthold tenancy of the Property at a weekly rent of £250. A copy of the tenancy agreement was produced in evidence, the terms of which make the tenant responsible to pay utilities, water charges and Council Tax.[3]On 1 January 2013 the Applicant designated the area of Newham, within which the property is situated, as being an area of selective licensing. The Notice of Intended Proceedings[4]On 19 May 2014 the Applicant served the Respondent with a notice of intended proceedings under section 96(7), the contents of which the tribunal finds complied with the statutory requirements therein set out. The notice was served by Linda Brown on the Respondent by hand at the Property and at 75 Grosvenor Road, Forest Gate, London E7 8HZ. This was the address provided for the Respondent to Housing Benefit and to which the her payment notifications were sent. It is also the address given for the Respondent on the Notice Requiring Possession served on the tenant dated 24 June 2014. The tribunal is satisfied that the notice of intended proceedings has been properly served on the Respondent.[5]No representations were received by the Respondent within the period ending 20 June 2014 specified in the notice (which was more than the minimum statutory requirement of 28 days). The Applicant treated the Notice Seeking Possession served on the tenant and received 30 June 2014 as representations in relation to the Notice, even though out of time, and having considered them issued a letter dated 17 July 2014 notifying the Respondent that its decision to seek a Rent Repayment Order was unchanged. Offence under s.95(1)[6]The local authority confirmed (contrary to an assertion in the witness statement of Linda Brown dated 18 July 2014) that there had been no prosecution brought against the Respondent for an offence under s.95(1) of the Act. The hearing bundle contained evidence that the only prosecutions brought by the local authority had been in respect of offences under Part 1 of the Act. The tribunal must therefore be satisfied that the Respondent, with the period of 12 months prior to the date of the notice of intended proceedings, committed an offence under s.95(1), in that “he is a person having control of or managing a house which is required to be licensed under this Part (see section 85(1)) but is not so licensed”.[7]The tribunal is satisfied that the Respondent is “the appropriate person” pursuant to the definition in section 96(1) in relation to the housing benefit payments in that she was entitled to receive those payments on her own account as the landlord.[8]Furthermore, the tribunal is satisfied that the Property is required to be licensed under this part. Evidence was produced that from 1 January 2013 the Applicant designated the area of Newham, within which the Property is situated, as being an area for selective licensing. The designation applies to any house which is let or occupied under a tenancy or licence within the area prescribed, subject to a number of statutory exceptions which are not applicable in the present case.[9]No evidence has been produced by the Respondent as to the existence of a licence, and the Applicant produced sufficient evidence in the form of a witness statement from Linda Brown, Private Sector Housing Officer, that there was no licence and no application had been received at any time. There was no evidence to establish any the statutory defence in subsections 95(3) and (4). Accordingly, the tribunal is satisfied that the Respondent has committed an offence under s.95(1) within the period of 12 months prior to the date of the notice of intended proceedings. Has Housing Benefit been paid during a period in which an offence has been committed?[10]The next question for the consideration of the tribunal, therefore, is whether housing benefit been paid during that same period. Mr P Gallagher, Senior Council Tax and Benefit Officer of the London Borough of Newham, produced evidence in the form of a schedule from the Respondent's records of the payment of Housing Benefit that Housing Benefit was paid between 23 May 2013 and 18 May 2014 for the tenant Ms Shabina Butt. The housing benefit paid for this period totalled £11,871.11 and this was the sum in respect of which the application for a RRO was made.[11]Mr Gallagher clarified in evidence at the hearing that he had latterly conducted a check against the Housing Benefit record and identified, as set out in his supplementary witness statement dated 10 June 2015, that owing to information from the tenant on 13 November 2014 that she had been abroad since 6 April 2014, Housing Benefit was terminated with effect from 6 April 2014 and an overpayment of housing benefit was created, recovery of which would be sought from the tenant. Accordingly, explained Mr Gallagher, the housing benefit paid from 23 May 2013 to 5 April 2014 totalled £10,491.11, and that a RRO was sought in respect of this figure. A spreadsheet was attached to his supplementary witness statement showing all individual weekly payments of Housing Benefit which comprised the total final figure, and the tribunal accepts this evidence and that the total Housing Benefit of £10,491.11 was paid in respect of a period of no more than 12 months from the date of the notice.[12]Accordingly, the tribunal is satisfied as to all of the matters in Section 96(6) of the Act, and has jurisdiction to make a RRO, and determines that it is appropriate to make such an order. However, there is no presumption as to full recovery of the amount of Housing Benefit paid. The tribunal must consider all the circumstances of the case. Is the sum of £10,491.11 reasonable in all the circumstances[13]The tribunal has referred to decisions of the Upper Tribunal in Parker v Waller [2012] UKUT 301 (LC) and Fallon v Wilson [2014] UKUT 0300 (LC). Pursuant to the tribunal's directions, the Respondent had until 11 May 2015 to file any evidence in response to the application. The Respondent has, however, failed to file any evidence at all. The tribunal would have taken into consideration proven expenditure to identify the landlord's profit from renting, such as insurance, mortgage, agency fees etc. However, the tribunal does not consider it appropriate in the absence of any evidence that such expenses are being paid, or as to their amount that it should engage in conjecture on the matter. Furthermore, the tribunal has no information as to the Respondent's financial circumstances, her reasons for not applying for a licence, or any other mitigation.[14]The tribunal observes that the Respondent furthermore failed to engage with the local authority in respect of action taken under Part 1 of the Act concerning housing conditions. As a result, the local authority prosecuted her, obtained a conviction, and carried out works in default.[15]In Fallon the Upper Tribunal considered public policy (in the case of applications by tenants for a RRO) to be a relevant consideration. This not being a case in which there has been a conviction for an offence under s.95(1), Section 97(5) of the Act requires the tribunal to consider what is a reasonable amount in the circumstances. In the absence of evidence from the tenant, and having regard to the public policy that a landlord should not receive any of the proceeds of housing benefit when she has failed to obtain a licence, the tribunal finds it is reasonable in the circumstances that the amount in respect of which the RRO should be made is the full amount of Housing Benefit paid. Name: F. Dickie Date: 3 August 2015 Decisions of the tribunal The tribunal makes a Rent Repayment Order against the Respondent in the sum of £10,491.11. The application[1]The applicant seeks a rent repayment order pursuant to sections 96 and 97 of the Housing Act 2004.[2]The Respondent is the long leaseholder of the property at 57 Fowler Road, London E7 0AU (“the Property”), and has been since 12 November 2007. On 22 November 2007 the Respondent granted Mrs Butt an assured shorthold tenancy of the Property at a weekly rent of £250. A copy of the tenancy agreement was produced in evidence, the terms of which make the tenant responsible to pay utilities, water charges and Council Tax.[3]On 1 January 2013 the Applicant designated the area of Newham, within which the property is situated, as being an area of selective licensing. The Notice of Intended Proceedings[4]On 19 May 2014 the Applicant served the Respondent with a notice of intended proceedings under section 96(7), the contents of which the tribunal finds complied with the statutory requirements therein set out. The notice was served by Linda Brown on the Respondent by hand at the Property and at 75 Grosvenor Road, Forest Gate, London E7 8HZ. This was the address provided for the Respondent to Housing Benefit and to which the her payment notifications were sent. It is also the address given for the Respondent on the Notice Requiring Possession served on the tenant dated 24 June 2014. The tribunal is satisfied that the notice of intended proceedings has been properly served on the Respondent.[5]No representations were received by the Respondent within the period ending 20 June 2014 specified in the notice (which was more than the minimum statutory requirement of 28 days). The Applicant treated the Notice Seeking Possession served on the tenant and received 30 June 2014 as representations in relation to the Notice, even though out of time, and having considered them issued a letter dated 17 July 2014 notifying the Respondent that its decision to seek a Rent Repayment Order was unchanged. Offence under s.95(1)[6]The local authority confirmed (contrary to an assertion in the witness statement of Linda Brown dated 18 July 2014) that there had been no prosecution brought against the Respondent for an offence under s.95(1) of the Act. The hearing bundle contained evidence that the only prosecutions brought by the local authority had been in respect of offences under Part 1 of the Act. The tribunal must therefore be satisfied that the Respondent, with the period of 12 months prior to the date of the notice of intended proceedings, committed an offence under s.95(1), in that “he is a person having control of or managing a house which is required to be licensed under this Part (see section 85(1)) but is not so licensed”.[7]The tribunal is satisfied that the Respondent is “the appropriate person” pursuant to the definition in section 96(1) in relation to the housing benefit payments in that she was entitled to receive those payments on her own account as the landlord.[8]Furthermore, the tribunal is satisfied that the Property is required to be licensed under this part. Evidence was produced that from 1 January 2013 the Applicant designated the area of Newham, within which the Property is situated, as being an area for selective licensing. The designation applies to any house which is let or occupied under a tenancy or licence within the area prescribed, subject to a number of statutory exceptions which are not applicable in the present case.[9]No evidence has been produced by the Respondent as to the existence of a licence, and the Applicant produced sufficient evidence in the form of a witness statement from Linda Brown, Private Sector Housing Officer, that there was no licence and no application had been received at any time. There was no evidence to establish any the statutory defence in subsections 95(3) and (4). Accordingly, the tribunal is satisfied that the Respondent has committed an offence under s.95(1) within the period of 12 months prior to the date of the notice of intended proceedings. Has Housing Benefit been paid during a period in which an offence has been committed?[10]The next question for the consideration of the tribunal, therefore, is whether housing benefit been paid during that same period. Mr P Gallagher, Senior Council Tax and Benefit Officer of the London Borough of Newham, produced evidence in the form of a schedule from the Respondent's records of the payment of Housing Benefit that Housing Benefit was paid between 23 May 2013 and 18 May 2014 for the tenant Ms Shabina Butt. The housing benefit paid for this period totalled £11,871.11 and this was the sum in respect of which the application for a RRO was made.[11]Mr Gallagher clarified in evidence at the hearing that he had latterly conducted a check against the Housing Benefit record and identified, as set out in his supplementary witness statement dated 10 June 2015, that owing to information from the tenant on 13 November 2014 that she had been abroad since 6 April 2014, Housing Benefit was terminated with effect from 6 April 2014 and an overpayment of housing benefit was created, recovery of which would be sought from the tenant. Accordingly, explained Mr Gallagher, the housing benefit paid from 23 May 2013 to 5 April 2014 totalled £10,491.11, and that a RRO was sought in respect of this figure. A spreadsheet was attached to his supplementary witness statement showing all individual weekly payments of Housing Benefit which comprised the total final figure, and the tribunal accepts this evidence and that the total Housing Benefit of £10,491.11 was paid in respect of a period of no more than 12 months from the date of the notice.[12]Accordingly, the tribunal is satisfied as to all of the matters in Section 96(6) of the Act, and has jurisdiction to make a RRO, and determines that it is appropriate to make such an order. However, there is no presumption as to full recovery of the amount of Housing Benefit paid. The tribunal must consider all the circumstances of the case. Is the sum of £10,491.11 reasonable in all the circumstances[13]The tribunal has referred to decisions of the Upper Tribunal in Parker v Waller [2012] UKUT 301 (LC) and Fallon v Wilson [2014] UKUT 0300 (LC). Pursuant to the tribunal's directions, the Respondent had until 11 May 2015 to file any evidence in response to the application. The Respondent has, however, failed to file any evidence at all. The tribunal would have taken into consideration proven expenditure to identify the landlord's profit from renting, such as insurance, mortgage, agency fees etc. However, the tribunal does not consider it appropriate in the absence of any evidence that such expenses are being paid, or as to their amount that it should engage in conjecture on the matter. Furthermore, the tribunal has no information as to the Respondent's financial circumstances, her reasons for not applying for a licence, or any other mitigation.[14]The tribunal observes that the Respondent furthermore failed to engage with the local authority in respect of action taken under Part 1 of the Act concerning housing conditions. As a result, the local authority prosecuted her, obtained a conviction, and carried out works in default.[15]In Fallon the Upper Tribunal considered public policy (in the case of applications by tenants for a RRO) to be a relevant consideration. This not being a case in which there has been a conviction for an offence under s.95(1), Section 97(5) of the Act requires the tribunal to consider what is a reasonable amount in the circumstances. In the absence of evidence from the tenant, and having regard to the public policy that a landlord should not receive any of the proceeds of housing benefit when she has failed to obtain a licence, the tribunal finds it is reasonable in the circumstances that the amount in respect of which the RRO should be made is the full amount of Housing Benefit paid. Name: F. Dickie Date: 3 August 2015 Decisions of the tribunal The tribunal makes a Rent Repayment Order against the Respondent in the sum of £10,491.11. The application[1]The applicant seeks a rent repayment order pursuant to sections 96 and 97 of the Housing Act 2004.[2]The Respondent is the long leaseholder of the property at 57 Fowler Road, London E7 0AU (“the Property”), and has been since 12 November 2007. On 22 November 2007 the Respondent granted Mrs Butt an assured shorthold tenancy of the Property at a weekly rent of £250. A copy of the tenancy agreement was produced in evidence, the terms of which make the tenant responsible to pay utilities, water charges and Council Tax.[3]On 1 January 2013 the Applicant designated the area of Newham, within which the property is situated, as being an area of selective licensing. The Notice of Intended Proceedings[4]On 19 May 2014 the Applicant served the Respondent with a notice of intended proceedings under section 96(7), the contents of which the tribunal finds complied with the statutory requirements therein set out. The notice was served by Linda Brown on the Respondent by hand at the Property and at 75 Grosvenor Road, Forest Gate, London E7 8HZ. This was the address provided for the Respondent to Housing Benefit and to which the her payment notifications were sent. It is also the address given for the Respondent on the Notice Requiring Possession served on the tenant dated 24 June 2014. The tribunal is satisfied that the notice of intended proceedings has been properly served on the Respondent.[5]No representations were received by the Respondent within the period ending 20 June 2014 specified in the notice (which was more than the minimum statutory requirement of 28 days). The Applicant treated the Notice Seeking Possession served on the tenant and received 30 June 2014 as representations in relation to the Notice, even though out of time, and having considered them issued a letter dated 17 July 2014 notifying the Respondent that its decision to seek a Rent Repayment Order was unchanged. Offence under s.95(1)[6]The local authority confirmed (contrary to an assertion in the witness statement of Linda Brown dated 18 July 2014) that there had been no prosecution brought against the Respondent for an offence under s.95(1) of the Act. The hearing bundle contained evidence that the only prosecutions brought by the local authority had been in respect of offences under Part 1 of the Act. The tribunal must therefore be satisfied that the Respondent, with the period of 12 months prior to the date of the notice of intended proceedings, committed an offence under s.95(1), in that “he is a person having control of or managing a house which is required to be licensed under this Part (see section 85(1)) but is not so licensed”.[7]The tribunal is satisfied that the Respondent is “the appropriate person” pursuant to the definition in section 96(1) in relation to the housing benefit payments in that she was entitled to receive those payments on her own account as the landlord.[8]Furthermore, the tribunal is satisfied that the Property is required to be licensed under this part. Evidence was produced that from 1 January 2013 the Applicant designated the area of Newham, within which the Property is situated, as being an area for selective licensing. The designation applies to any house which is let or occupied under a tenancy or licence within the area prescribed, subject to a number of statutory exceptions which are not applicable in the present case.[9]No evidence has been produced by the Respondent as to the existence of a licence, and the Applicant produced sufficient evidence in the form of a witness statement from Linda Brown, Private Sector Housing Officer, that there was no licence and no application had been received at any time. There was no evidence to establish any the statutory defence in subsections 95(3) and (4). Accordingly, the tribunal is satisfied that the Respondent has committed an offence under s.95(1) within the period of 12 months prior to the date of the notice of intended proceedings. Has Housing Benefit been paid during a period in which an offence has been committed?[10]The next question for the consideration of the tribunal, therefore, is whether housing benefit been paid during that same period. Mr P Gallagher, Senior Council Tax and Benefit Officer of the London Borough of Newham, produced evidence in the form of a schedule from the Respondent's records of the payment of Housing Benefit that Housing Benefit was paid between 23 May 2013 and 18 May 2014 for the tenant Ms Shabina Butt. The housing benefit paid for this period totalled £11,871.11 and this was the sum in respect of which the application for a RRO was made.[11]Mr Gallagher clarified in evidence at the hearing that he had latterly conducted a check against the Housing Benefit record and identified, as set out in his supplementary witness statement dated 10 June 2015, that owing to information from the tenant on 13 November 2014 that she had been abroad since 6 April 2014, Housing Benefit was terminated with effect from 6 April 2014 and an overpayment of housing benefit was created, recovery of which would be sought from the tenant. Accordingly, explained Mr Gallagher, the housing benefit paid from 23 May 2013 to 5 April 2014 totalled £10,491.11, and that a RRO was sought in respect of this figure. A spreadsheet was attached to his supplementary witness statement showing all individual weekly payments of Housing Benefit which comprised the total final figure, and the tribunal accepts this evidence and that the total Housing Benefit of £10,491.11 was paid in respect of a period of no more than 12 months from the date of the notice.[12]Accordingly, the tribunal is satisfied as to all of the matters in Section 96(6) of the Act, and has jurisdiction to make a RRO, and determines that it is appropriate to make such an order. However, there is no presumption as to full recovery of the amount of Housing Benefit paid. The tribunal must consider all the circumstances of the case. Is the sum of £10,491.11 reasonable in all the circumstances[13]The tribunal has referred to decisions of the Upper Tribunal in Parker v Waller [2012] UKUT 301 (LC) and Fallon v Wilson [2014] UKUT 0300 (LC). Pursuant to the tribunal's directions, the Respondent had until 11 May 2015 to file any evidence in response to the application. The Respondent has, however, failed to file any evidence at all. The tribunal would have taken into consideration proven expenditure to identify the landlord's profit from renting, such as insurance, mortgage, agency fees etc. However, the tribunal does not consider it appropriate in the absence of any evidence that such expenses are being paid, or as to their amount that it should engage in conjecture on the matter. Furthermore, the tribunal has no information as to the Respondent's financial circumstances, her reasons for not applying for a licence, or any other mitigation.[14]The tribunal observes that the Respondent furthermore failed to engage with the local authority in respect of action taken under Part 1 of the Act concerning housing conditions. As a result, the local authority prosecuted her, obtained a conviction, and carried out works in default.[15]In Fallon the Upper Tribunal considered public policy (in the case of applications by tenants for a RRO) to be a relevant consideration. This not being a case in which there has been a conviction for an offence under s.95(1), Section 97(5) of the Act requires the tribunal to consider what is a reasonable amount in the circumstances. In the absence of evidence from the tenant, and having regard to the public policy that a landlord should not receive any of the proceeds of housing benefit when she has failed to obtain a licence, the tribunal finds it is reasonable in the circumstances that the amount in respect of which the RRO should be made is the full amount of Housing Benefit paid. Name: F. Dickie Date: 3 August 2015