20b St Georges Road, Forest Gate, Newham, London, E7 8HY LON/00BB/HMC/2024/0600
DECISION
[1]The tenant, Mr Hossain, by an application dated 1st October 2024 applies under section 41 of the Housing and Planning Act 2016 for a rent repayment order (RRO) against the respondent landlords. Mr Hossain asserts that the landlords committed an offence under section 30(1) of the Housing Act 2004 by failing to comply with an improvement notice issued by Newham London Borough Council on 13th June 2023. The applicant seeks a RRO for the period 3rd November 2023 to 2nd November 2024, in the sum of £13,039.98.[2]The landlords granted an assured shorthold tenancy dated 3rd June 2019 of the flat to Mr Hossain, his wife Mrs Morzina Talukder and his brother, Mr Md Aktar Hossain. We note immediately that there is a potential difficulty in Mr Hossain’s claim in that the other two tenants are not a party to the application. The claim is thus potentially not properly constituted: see Chitty on Contracts (35th Ed, 2023) at paras 20-009 and 20-010. We do not, however, in the event need to resolve this issue.[3]On 16th June 2023, the local authority, the London Borough of Newham, served an improvement notice. The notice was addressed solely to Mr Blanchard, not to his wife, although they were both long leaseholders of the flat and were both the landlords of Mr Hossain. The notice identified the defects and the remedies required to be done by 7th October 2023 as follows: “SCHEDULE 1 Damp and Mould Growth, Band E, Category 2 There is extensive penetrating dampness to the living room rear and left-hand side walls from floor to ceiling level together with evidence of similar dampness to the adjacent ceiling. Above the room is a flat roof and it is likely that the waterproof membrane of the roof is defective or punctured leading to penetrating dampness into the room. Fire, Band D, Category 2 The two front bedrooms means of escape is via the kitchen which increases the risk of fire to the occupiers. There is a secondary door in the kitchen which is situated close to the bedroom door, but this locked with a key and blocked by an upright fridge/freezer. The door leads out onto the communal landing to the means of escape onto the street. SCHEDULE 2 Specification of works to be carried out Damp and Mould Growth, Band E, Category 2 Engage the services of a competent contractor to Investigate the flat roof covering and examine the whole area for defects or disrepair that may have caused penetrating dampness into the room. As necessary, repair or replace the roof covering in accordance with current Building Regulations standards and on completion leave the roof in a weathertight condition. Hack-off all damp and defective wall plaster in the living room and replaster the affected area to match the existing. Seal the new wall plaster using a proprietary sealant and repaint with two coats of quality emulsion paint. Fire, Band D, Category 2 Remove the fridge/freezer away from the secondary kitchen door to free-up use of the door Replace the key lockable mortice lock of the said door and replace with a thumb turn lock on the kitchen side of the room. This lock should have a key lockable cylinder lock on the landing side.”[4]It was common ground that the works in respect of fire hazards were done timeously, so no issue arises in respect of these.[5]The position in relation to the damp and leak proved more complicated. As to the damp, the landlords’ case is that this was caused by the tenants’ failure adequately to ventilate the kitchen by using the extractor fan and opening the windows. This was, Mr Blanchard submitted, part of a general indifference to maintaining the condition of the flat which resulted in a significant deterioration in what had been a very well-presented flat, when it was initially let out to the tenants. Mr Hossain’s case is that the damp was caused by the leak.[6]As to the leak, the landlords’ case is that this was originally a small intermittent leak from the roof terrace of Flat C, the flat immediately above the flat in dispute. Mr Blanchard said that he investigated this when it first happened but could not find where the problem was in the roof terrace. (He and his wife held a long lease on Flat C, which was let out to tenants, but he was able to gain access to it quite easily.)[7]When the improvement notice was served, he instructed contractors. They dealt with the damp timeously, although the damp subsequently returned.[8]The contractors, however, also discovered that underneath the ceiling of Flat 2 was a proprietary lining board with a Cape logo, This company were well-known as the manufacturers of Asbestolux, which as the name implies contains asbestos. This caused the work to stop, since the contractors were not able to deal with asbestos issues.[9]In the light of these difficulties on 12th October 2023 the local authority issued a variation of the original improvement notice so as to extend the time for completion of the works to 12th December 2023.[10]The landlords did not carry out the works to the roof. Mr Blanchard took the view that, in view of the asbestos, it was going to be necessary for the tenants to move out. The work could not safely be done when Mr Hossain and his family (which by this time included three young children) were still living there.[11]The local authority did not initially agree. On 20th May 2024 they wrote to Mr Hossain to say that they intended to take enforcement action against Mr Blanchard.[12]In the meantime the damp in the property had deteriorated. Again it is in dispute whether this was due to the tenants’ use of the property or as a result of the leak worsening. However, on 16th July 2024 the local authority withdrew the existing improvement notice, because it considered the damp problem had become a Category 1 hazard. This was followed on 20th August 2024 by the local authority giving the landlords the opportunity to make representations against the making of a new improvement notice.[13]On 26th September 2024 the local authority issued a new improvement notice. However, this notice provided that the notice was “suspended until the current tenants vacate the dwelling, either of their own volition or via the correct legal eviction process through the courts.”[14]It will be recalled that on 10th October 2024 Mr Hossain issued the current application.[15]There were subsequently discussions between Mr Hossain and Mr Blanchard. The local authority at some point (the precise date is not in evidence) agreed to make temporary accommodation available to Mr Hossain and his family, so Mr Hossain had some incentive to reach an agreement with the Blanchards. At the same time, Mr Blanchard was not keen to have to start litigation.[16]In addition to the question of responsibility for the damp and the general decline in the condition of the flat, the landlords had given the tenants during Covid some relief in respect of the rent, because Mr Hossain had had to work short hours and was under some financial pressure. Mr Blanchard’s view was that Mr Hossain should pay £4,000 in respect of these rent arrears. Mr Hossain did not agree; he considered the rent had been waived permanently. There was also a dispute between the parties because Mr Hossain had tape-recorded various discussions between himself and Mr Blanchard without the latter’s knowledge.[17]On 1st December 2024 there was a meeting at the flat, where these issues were discussed. Mr Hossain wanted his deposit of £1,269 back and was refusing to surrender the keys without being paid. Mr Blanchard was willing to pay him £1,000 but in full and final settlement of all claims. Mr Hossain was willing to delete all the recordings he had made. That is what was agreed and an agreement reflecting the terms was signed. Mr Blanchard gave Mr Hossain the £1,000 then and there in cash.[18]Ms Donnelly-Jackson accepted that the settlement agreement had the effect of compromising Mr Hossain’s claim to a rent repayment order. She argued, however, that the agreement was vitiated by coercion on the part of Mr Blanchard.[19]We do not accept that. Mr Hossain was not a vulnerable man. He works as a telecom engineer. Before us he was articulate and of obvious intelligence. Further he had access to legal advice from Justice for Tenants who were representing him in the current proceedings. Mr Blanchard by contrast was an eighty-two-year-old man. The three flats in the block were his only income generating assets and they were charged with an interest only mortgage. As between the two, Mr Blanchard in our judgment was the more vulnerable.[20]The evidence of Mr Hossain in our judgment goes no further than showing that the negotiations were of a perfectly normal commercial nature with Mr Blanchard giving up his claims for £4,000 rent arrears and dilapidations in return for Mr Hossain giving up his claim for a rent repayment order and receiving £1,000 in cash. Mr Hossain said that he had video or audio evidence of the negotiations, but these were not played to us at the hearing, so we cannot assess them. Mr Blanchard’s evidence was that the negotiations were of a perfectly normal nature. We find as a fact that there was nothing improper in the negotiations and that there was no coercion of Mr Hossain or any other factor which might vitiate the agreement of 1st December 2024.[21]In our judgment, the claim for a rent repayment order fails on the ground that it has been compromised by the agreement of 1st December 2024.[22]Even if we were wrong in this, the rent repayment order would still stand to be dismissed. Section 30(1) of the Housing Act 2004 provides that “[w]here an improvement notice has become operative, the person on whom the notice was served commits an offence if he fails to comply with it.” However, that section goes on to provide in section 30(4): “In proceedings against a person for an offence under subsection (1) it is a defence that he had a reasonable excuse for failing to comply with the notice.”[23]The burden of proving this defence lies on the landlords on balance of probabilities. In our judgment, however, the landlords have established the defence. Once the problem of asbestos became apparent, the only safe means of proceeding with the roof repairs in our judgment was to have the flat vacated. We note that this was also ultimately the view of the local authority, as shown by the terms of the 26th September 2024 improvement notice. Accordingly, in our judgment it was reasonable for the landlords to delay mending the leak.[24]For completeness, we should add that, if we had decided to make a RRO there would have been a number of additional issues. Firstly the period for which the RRO could be made does not appear to be 3rd November 2023 to 2nd November 2024. Secondly, there is a complication in that the rent was received by Mr Blanchard and by Mrs Blanchard jointly, yet the initial improvement notice was only made against Mr Blanchard. What the effect of this on the recoverability of the whole of the rent against both of them would need to be determined. Thirdly, there would need to be consideration of the degree of fault on the landlords’ part and the percentage of the rent which stood to be repaid. In the event, we do not need to determine these issues.[25]As to costs, the tenant has paid the £110 application fee and the hearing fee of £227. Since he has lost, in our judgment there should be no order for costs. DETERMINATION(a) The application for a rent repayment order is dismissed.(b) There be no order for costs in respect of the fees payable to the Tribunal. Name: Judge Adrian Jack Date: 29th September 2025