Judge ShepherdDate 26 July 2026Property: Flat 1, 570 Cranbrook Road, Ilford, Essex, IG2 6REType of application: Rent Repayment Order
DECISION
[1]This is a written judgement which reflects an oral judgment I gave at the hearing on 7th July 2026.[2]The Applicant brought an application for a Rent Repayment Order against the Respondent on 11th September 2025. The Respondent defended the proceedings. Amongst other arguments which don’t require consideration here the Respondent said the application was brought out of time and should be dismissed.[3]Section 41(2)(b) of the Housing and Planning Act 2016 states that : ‘A tenant may apply for a rent repayment order only if –(a) …(b) the offence was committed in the period of 12 months ending with the date on which the application is made.’[4]In the present case the Applicant was a tenant of the premises at Flat 1, 570 Cranbrook Road, Ilford, Essex, IG2 6RE (“the Premises”). This was under a sequence of fixed term tenancies, the last of which was dated 4 June 2024. All the tenancies were for a fixed term of 12 months.[5]In April 2024, the London Borough of Redbridge established a new selective licensing policy that required all private landlords of residential property to have selective licensing. It is common ground that the Respondent failed to apply for a license immediately.[6]Some five months later on 5 September 2024, the local authority wrote to the Respondent directly warning them that they were in breach of the selective licensing conditions. The Respondent applied immediately for a selective licence.[7]The Respondent maintains that due to IT issues with the Local Authority’s system it was not possible to complete the application and lodge payment until 12 September 2024 and the Local Authority granted the licence on 24 September 2024. A series of emails between the Respondent and the local authority supported the account that the primary reason why the application could not be made was the result of a defect in the local authority system. At the hearing the Applicant’s counsel highlighted the fact that the Respondent had previously failed to license the premises when required to do so and had delayed in applying for a license under the current Selective Licensing regime. Neither allegation could be refuted by the Respondent. Indeed, had the question of limitation involved any element of judicial discretion the Tribunal would unhesitatingly have found that the Applicant ought to be able to pursue the case notwithstanding the fact that her application was potentially out of time. It is regrettable that there is no discretion in this regard. An application is either in time or it is not. The merits of the substantive case or the previous conduct of the relevant parties are of no importance. The limitation period has been extended to two years under the Renters Rights Act 2025 but no change has been made introducing a level of judicial discretion. This is a shame because landlords can rely on the Upper Tribunal case of Kemp and others v DIP Systems (UK) Ltd [2025] UKUT 233 (LC) (see below) even when their previous conduct does not merit it.[8]The Tribunal adopts the summary of facts in Kemp relied on by the Respondent as these were not challenged by the Applicant:[1]The landlord did not have a licence when it let the property and first tried to obtain one on 16 November 2022, when its agent completed the online application on Hackney’s licensing portal but was unable to pay the required fee because of a fault with the payment system. When the agent contacted Hackney on 16 November, he was informed by email that the payment system was down and that he would be contacted when it was back up and running. The agent was not contacted by Hackney, but when he made further enquiries on 5 December, he was informed on 8 December that the system was functioning again and that payments could be received. The agent then arranged payment of the fee, which was completed on 15 December. Hackney subsequently acknowledged that, but for the fault with their system, the licence application would have been made on 16 November 2022.[2]On 29 November 2023, the tenants applied to the FTT for an RRO, seeking to recover all of the rent which they had paid for the period from 16 December 2021 to 15 December 2022. In answer to the application the landlord said that it had a reasonable excuse for being in control of the HMO without a licence between 16 November and 15 December 2022 because it had done all that it reasonably could to apply for a licence during that period.[3]The FTT found that the landlord had made out the defence under section 72(5) of the 2004 Act because it had a reasonable excuse for managing the HMO without a licence from 16 November and that the last date on which the offence had been committed was 15 November 2022. As no offence had been committed during the period of 12 months ending on 29 November 2023, the date of the application for the RRO, the FTT decided that the application had been brought out of time and dismissed it on that basis.[4]On appeal, Martin Rodger KC upheld the decision of the FTT.[9]On careful consideration we accept that the present case is on all fours with Kemp. Once alerted to the need for a license the Respondent had immediately tried to apply for one but had been thwarted by a fault on the local authority system. Accordingly on 5th September 2024 or soon after the Respondent had a reasonable excuse and therefore the application made over a year later was out of time.[10]In summary the application was brought out of time and is therefore dismissed. Judge Shepherd 26th July 2026 ANNEX - 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. Any appeal in respect of the Housing Act 1988 should be on a point of law. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).