28 Stanza Court, Liverpool L5 5BH MAN/00BY/HMF/2023/0019

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case No MAN/00BY/HMF/2023/0019

Between

Elenie Penketh, Olivia Tomlin, Ben Redgrave, Andrew Barhan and Lewis ClementsApplicant

Trophy Homes LtdRespondent

Before

P. Barber (Tribunal Judge)

J. Fraser (Tribunal Member)

Justice for Tenants for the Applicant

Date 17 July 2024

Property: 28 Stanza Court, Liverpool L5 5BH

Type of application: Housing Act 2004, Section 73(5)

DECISION

[1]The Tribunal makes a Rent Repayment Order in the following terms:

[2]Elenie Penketh, £3290 x 85% = £2796.50 Olivia Tomlin, £3290 x 85% = £2796.50 Ben Redgrave, £3290 x 85% = £2796.50 Andrew Barham, £3290 x 85% = £2796.50 Lewis Clements, £3290 x 85% = £2796.50

REASONS

[1]This Decision and Reasons relates to five applications by the former tenants of the Respondent, Trophy Homes Ltd, their former landlord, for a Rent Repayment Order (RRO). The property address is 28 Stanza Court, Liverpool, L5 5BH. (“the property”).

[2]The Tribunal held an oral video hearing of this application at 10.30am on the 27 June 2024. The Respondent did not attend and in fact, except for an email on the 05 June 2024 stating that they did not manage the property and that they had entered administration, it has taken no part in these proceedings. We heard evidence from the Applicants, and we also had the benefit of extensive and very useful written submissions from Justice for Tenants. After the conclusion of the hearing, we made the following findings of fact. Facts

[3]The Applicants occupied the property as tenants, pursuant to a tenancy agreement commencing 10th July 2021. The tenancy agreement names Trophy Homes as the landlord and it is to Trophy Homes that the tenants paid their rent. Accordingly Trophy Homes is the person having control in relation to the premises pursuant to section 263 of the Housing Act 2004.

[4]At the commencement of the tenancy, the property was occupied by the following tenants, who all shared kitchen and bathroom facilities: Elenie Penketh, Olivia Tomlin, Ben Redgrave, Andrew Barham and Lewis Clements. It follows that as the property was occupied by 5 persons who do not form a single household, as their only or main residence and sharing basic amenities, paying a rent that the property met the definition of a HMO in section 254 of the Housing Act 2004.

[5]From the 24 September 2021 through to 16 May 2022 the property was not licenced as a HMO.

[6]At the hearing we were told that the rental payments included an amount for utilities which we take to be gas, electricity, and water rates; together with an amount for wifi and internet. None of the tenants were in receipt of universal credit housing costs or housing benefit. The tenancy agreement also makes reference to a sum payable in relation to utilities.

[7]We were told in submissions and in the various witness statements about the conduct of the landlord which we accept entirely. This includes the following: failing to maintain a properly functioning boiler and heating system and allowing the property to develop a cold and damp smell. The boiler had to be re-set daily in order to keep it working; one of the bedrooms was subject to mould growth, giving it an unpleasant smell; the tenants told us that they were unaware of a gas safety certificate being in place at the property and also they were unaware of any electrical safety check; the repeated failure of the boiler also meant that at times the tenants were unable to take a shower.

[8]We were told that an employee or officer of the landlord would regularly make unannounced visits to the property and on one occasion someone entered a bedroom whilst they were asleep and stared at them. This must have been very distressing for that particular tenant and also a serious concern for other tenants.

[9]In short, we were satisfied that the behaviour of the respondent during the tenancy is sufficiently serious to be taken into account in determining the level of the rent repayment order. The Applicable Law

[10]Section 41 of the Housing and Planning Act 2016 provides that a tenant may apply to the First-tier Tribunal (FtT) for a RRO against a landlord who has committed an offence to which the 2016 Act applies. The 2016 Act applies to an offence committed under section 72(1) of the Housing Act 2004 (section 40(3) of the 2016 Act).

[11]Section 43 provides that the FtT may make a RRO if satisfied, beyond reasonable doubt, that the landlord has committed an offence to which the 2016 Act applies.

[12]Section 44 of the 2016 Act provides for how the RRO is to be calculated. In relation to an offence under section 72(1) the period to which a RRO relates is a period, not exceeding 12 months, during which the landlord was committing the offence.

[13]By section 44(4) in determining the amount, we had to take account of the following factors:(a) the conduct of the landlord and the tenant;

(b) the financial circumstances of the landlord, and

(c) whether the landlord has at any time been convicted of an offence to which this Chapter applies. Application of facts to the law and our Reasons

[14]On the basis of the evidence, we were satisfied beyond reasonable doubt that Trophy Homes Ltd has committed an offence to which the 2016 Act applies. Throughout the relevant period, the property came within the definition of a HMO as it was occupied by at least 5 persons in circumstances where they shared facilities and were separate households. Throughout this period the property was required to be licenced under Part 2 of the Housing Act 2004 and it was not. In those circumstances, an offence had been committed under section 72 of the Housing Act 2004.

[15]We were also satisfied that it was appropriate to make a RRO against Trophy Homes and in favour of each of the Applicants.

[16]On the basis of the above facts and law we decided that there was no poor conduct on the part of the tenants such that it might have an impact on the amount of the RRO. Trophy Homes Ltd took no part in the proceedings and accordingly we were unable to take any account of the conduct of the landlord or any financial circumstances of the landlord so as to benefit them. We are unaware of any conviction for any offence occasioned by Trophy Homes Ltd.

[17]Based on all of the evidence and the factors identified above, we decided that an appropriate level for the RRO would be set at 85% of the monthly rent to take account of the monthly utility charges per occupant which were included in the rent. Trophy Homes has been the subject of numerous applications for RROs before the Tribunal and their conduct during the subsistence of this tenancy has been significantly lacking. We think this is the type of application where a substantial element of the rent should be repaid with only credit given for the utilities provided to the tenants during their occupation and which is included in the rent. We have assessed this at 15%.

[18]The Tribunal also makes an order under rule 13(5) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 that the Respondent should pay the whole of the fees paid by each of the Applicants for issuing these proceedings and in respect of the hearing.

[19]By section 47 of the 2016 Act, a Rent Repayment Order is recoverable as a debt. If Trophy Homes Ltd does not make a payment to each of the Applicants in the above amounts, which it now owes them, or fails to come to an arrangement for payment of the above amounts which is reasonable and agreeable to each of the Applicants, then the Applicants can recover such amounts in the county court.

[20]Any party can appeal this decision to the Upper Tribunal. Guidance notes are attached on the process for doing so. Signed Dated 17 July 2024 Phillip Barber, Judge of the First-tier Tribunal