C101, Parliament Square, 8 Crump Street, Liverpool L1 0DQ MAN/00BY/HMG/2024/0606
DECISION
[1]The Respondent shall repay to the Applicant the sum of £5,800.97, by no later than 28 days of the date the decision is sent to the parties.REASONS
[1]The Applicant Miss Loughran, attended the hearing (with her mother, for support).[2]Ms Charlotte O’Driscoll, Operations Manager, Legacie Management and Lettings Limited, attended for the Respondent Preliminary Matters[3]The hearing was conducted by video. The parties consented to a video hearing and the Tribunal was satisfied that it was appropriate that the application be heard by way of video hearing.[4]The Applicant’s evidence (contained in a 62 page electronic bundle) was filed and served late, on 29th January 2026. The directions order made on 20th October provided that the Applicant’s evidence should have been served no later than 28 days from the date of the order, that is, by 17th November 2025. The Applicant submitted that the reason for the delay was a health issue, in respect of which evidence had been submitted. Charlotte O’Driscoll confirmed that the Respondent did not object to admission of the late evidence. The Tribunal were satisfied that it was in the interests of justice to admit the evidence given the reason provided, the lack of objection, and because the Tribunal was satisfied the evidence was likely to assist it in justly determining the application.[5]The Tribunal also considered an email submitted by Charlotte O’Driscoll on 3rd February 2026, following the hearing, the Tribunal having requested, and given permission for, that evidence (relating to the date of submission of the Respondent’s application for a licence).[6]In accordance with the ‘Practice Direction from the Senior President of Tribunals: Reasons for decisions’, this decision refers only to the main issues and evidence in dispute, and how those issues essential to the Tribunal’s conclusions have been resolved. The Law[7]The relevant law is summarised in Schedule 1, below. Background to the application[8]By an application dated 28th December 2024 the Applicant seeks a rent repayment order pursuant to section 41(1) of the Housing and Planning Act 2016 (HaPA 2016), the relevant offence for the purposes of that section being an allegation that the Respondent had committed an offence under section 95(1) of the Housing Act 2004 (HA 2004) by having control of or managing a property, that is, the Property, required to be licensed under a selective licensing scheme, without such a license.[9]Liverpool City Council (LCC) introduced a selective licensing requirement for privately rented properties within a designated area of the City on 1st April 2022. It is agreed that the Property was a privately rented property within the designated area.[10]The Applicant’s tenancy of the Property commenced on 5th January 2024. An application for a license was submitted in December 2024, the license being granted in January 2025. The Applicant’s tenancy subsisted at the time of the application for, and grant of, the license. Issues[11]The following issues were identified for determination by the Tribunal:a. Whether the Tribunal is satisfied beyond reasonable doubt that the Respondent has committed (in this case) an offence pursuant to s.95(1) of the HA 2004 - control or management of unlicensed house;b. Did the offence relate to housing that, at the time of the offence, was let to the Applicant tenant?c. Was an offence committed by the Respondent in the period of 12 months ending with the date the application was made?d. What is the applicable 12-month period?e. What is the maximum amount that can be ordered under section 44(3) of the HaPA 2016?f. What account must be taken (under section 44(4) of the HaPA 2016) of: i. The conduct of the Respondent? ii. The financial circumstances of the Respondent? iii. Whether the Respondent has at any time been convicted of a relevant offence? iv. The conduct of the tenant? v. Any other factors? Evidence[12]The Tribunal was provided with:a. a 62 page bundle of evidence from the Applicant, which contained, amongst other documents, a detailed statement with the Applicant’s account of the alleged offence and grounds for the application, and evidence in support, including a witness statement form Jennifer Driscoll, Public Sector Housing Selective Licensing Manager, LCC, dated 9th November 2025, the Applicant’s calculations of the amount of rent paid within the applicable period and evidence of rent payments made during that period, and the relevant tenancy agreement;b. a 45 page bundle of evidence from the Respondent, containing the Respondent’s Statement of Position, a rent schedule, a copy of the tenancy agreement, and a copy of the selective licence issued by LCC;c. the email from Ms O’Driscoll, on behalf of the Respondent, referred to above.[13]The Tribunal has carefully considered all the written evidence referred to in paragraph 9, above.[14]The Tribunal has also carefully considered the oral evidence given at the hearing by the Applicant and Ms O’Driscoll. Relevant Evidence and the Tribunal’s Conclusions on the Issues Is the Tribunal satisfied beyond reasonable doubt that the Respondent has committed (in this case) an offence pursuant to s.95(1) of the HA 2004 - control or management of unlicensed house[15]It is, because the Tribunal finds that the Respondent was in control of an unlicensed house, the Property:a. the Respondent was the managing agent of the Property and in receipt of rents; the Respondent was therefore a “person having control” of the Property by reason of the section 263(1) HA 2004 definition of a “person having control”; the Respondent does not dispute that it was a “person having control” of the Property and this was expressly accepted by Charlotte O’Driscoll at the hearing;b. the Tribunal accept the evidence of Jennifer Driscoll that the property fell within the LCC selective licensing scheme and that no licence was in place at the time the tenancy was entered into, and no application for a license was submitted until December 2024. This evidence is credible evidence from an appropriately qualified officer of LCC, that evidence is not challenged by the Respondent and was accepted by Charlotte O’Driscoll at the hearing; and the evidence is consistent with the Applicant’s evidence. Did the offence relate to housing that, at the time of the offence, was let to the Applicant tenant?[16]It did – the Applicant’s evidence that her tenancy commenced on 5th January 2024, and subsisted at the date of the application for, and grant of, the relevant license is admitted by the Respondent. Was an offence committed by the Respondent in the period of 12 months ending with the date the application was made?[17]It was – the application is dated 28th December 2024, and appears to have been received by the Tribunal on this date. No challenge is made in respect of this ground by the Respondent. What is the applicable 12-month period?[18]The applicable period, by reference to section 44(2) HaPA 2016, is the period of 12 months ending with the date of the offence. The offence in this case is a continuing offence. It continued up to, and ended on, the date on which the application for a license for the Property was “duly made”, by reason of section 95(3)(b) HA 2004. There is a degree of conflict as to the date the application was “duly made”. The evidence of Jennifer Driscoll, in her statement dated 9th November 2025, is that the application was duly made on 31st December 2024, that being the date the application was submitted online with required information and fee paid; the evidence of Charlotte O’Driscoll on behalf of the Respondent, in the Respondent’s Statement of Position, was that the application was “submitted to the local authority on 20th December 2025”; in her oral evidence Ms O’Driscoll amended this, and later confirmed her evidence by an email submitted with permission, to state that “the application was made on 13th December 2024 - and payment for the licence was made 20th December 2024”. The email submitted included what appeared to be a screenshot of the LCC’s online licensing portal, which indicated that an application for the Property was submitted on 13th December 2025. However, no evidence was submitted as to the date of payment of the relevant fee and the evidence of Ms O’Driscoll remained somewhat inconsistent. In the circumstances, the Tribunal finds that the most reliable evidence as to when the application was “duly made” is that of Jennifer Driscoll, and that therefore the application was made on 31st December 2025, and that the applicable period is therefore 5th January 20245 until 30th December 2025. What is the maximum amount that can be ordered under section 44(3) of the Act?[19]The maximum amount was agreed by the parties at the hearing in the sum of £8,287.10, that is, the rent for the period 5th January 2024 until 30th December 2024. The section 44(4) HA 2004 factors[20]The Tribunal is satisfied that the offence of having control of an unlicensed property is a serious offence. Selective licensing is an important means by which local authorities can address specific problems arising in particular areas, and failure to comply with the scheme has the potential to significantly undermine the effectiveness of the scheme. The evidence of Jennifer Driscoll is that the selective licensing scheme in Liverpool has been in effect since 1st April 2022 and therefore the requirement for a license must have been known, or should reasonably have been known, by all private landlords or managing agents in the relevant selective licensing area. Rent Repayment Orders (RROs) are intended to have, as one of their functions, a deterrent effect.[21]The Tribunal considers that having regard to the seriousness of the offence the starting point for consideration of the level of the RRO, subject to other factors is 75% of the maximum amount, that is £6,215.33.[22]The conduct of the Respondent is raised in two contexts.[23]Firstly, the Applicant has made allegations of disrepair and entry into her property without notice. The allegations are contained in the Applicant’s “expanded statement of reasons”. Charlotte O’Driscoll, in oral evidence acknowledged that the block containing the Applicant’s flat had been affected by leaks following completion of the construction, and it took time to resolve the leaks; contractors were required to give 24 hours’ notice if they were required to enter a property to investigate or undertake work, unless entry was required on an emergency basis.[24]Secondly, Charlotte O’Driscoll gave evidence that the failure to obtain a license was unintentional and an oversight; the Respondent was the developer and managing agent for a number of new blocks of flats in the area (including the block in which the Applicant’s property was situated); licenses had been submitted and obtained for other blocks but there had been an oversight in relation to the block containing the Property, and the Respondent took steps to apply for a license as soon as it became aware of the oversight.[25]In relation to the first of these issues, the Tribunal is not satisfied that it has sufficient evidence to make findings either that the issues with the leaks at the block amounted to disrepair, for which the Respondent should be considered responsible, or that the entries to the Property by workmen or contractors were unreasonable in the circumstances. No adjustment is therefore made for the first issue.[26]In relation to the second issue, Charlotte O’Driscoll’s evidence that the failure to apply or an obtain a license was an oversight was not challenged, and the Tribunal accept that evidence. The Tribunal is satisfied that this is a factor that can be taken into account, in mitigation, in assessing the appropriate level of the RRO.[27]No issues or evidence were raised in relation to the financial circumstances of the Respondent, and it is not factor taken into account in mitigation.[28]There is no evidence of any relevant conviction of the Respondent.[29]No issues were raised in relation to the conduct of the tenant.[30]Any other factors – the Respondent has been frank in its evidence and has admitted the offence, which the Tribunal consider to be a mitigating factor; however, the Tribunal is satisfied on the evidence that the Respondent is a large, commercial developer/property management company, with significant resources. It should therefore be expected to have systems in place to ensure that relevant licenses are obtained for all relevant properties – this is an aggravating factor. Conclusion[31]As referred to above, having regard to the seriousness of the offence the Tribunal considered a RRO of 75% of the maximum amount would be appropriate; from this, 5% (£414.36) in respect of each of the two mitigating factors (the admission and failure to obtain the license by reason of oversight) should be deducted. To this, 5% of the maximum rent is added, having regard to the aggravating factor (professional developer/management company). The RRO is therefore 70% of the maximum amount, that is, £5,800.97, payable by no later than 28 days of the date the decision is sent to the parties. J Stringer Tribunal Judge Schedule 1 The provisions of the Housing and Planning Act 2016, (“the 2016 Act”), so far as relevant, are as follows – Section 40 Introduction and key definitions(1) This Chapter confers power on the First-tier Tribunal to make a rent repayment order where a landlord has committed an offence to which this Chapter applies.(2) A rent repayment order is an order requiring the landlord under a tenancy of housing in England to— (a) repay an amount of rent paid by a tenant, or …(3) A reference to ‘an offence to which this Chapter applies’ is to an offence, of a description specified in the table, that is committed by a landlord in relation to housing in England let by that landlord. (The relevant offence in this matter is: Act Section Offence Housing Act 2004 section 95(1) control or management of unlicensed house.) Section 41 provides – (1) A tenant or a local housing authority may apply to the First-tier Tribunal for a rent repayment order against a person who has committed an offence to which this Chapter applies. (2) A tenant may apply for a rent repayment order only if — (a) the offence relates to housing that, at the time of the offence, was let to the tenant, and (b) the offence was committed in the period of 12 months ending with the day on which the application is made. … Section 43 provides - (1) The First-tier Tribunal may make a rent repayment order if satisfied, beyond reasonable doubt, that a landlord has committed an offence to which this Chapter applies (whether or not the landlord has been convicted). (2) A rent repayment order under this section may be made only on an application under section 41. (3) The amount of a rent repayment order under this section is to be determined in accordance with— (a) section 44 (where the application is made by a tenant); … Housing Act 2004 Section 44 provides- (1) Where the First-tier Tribunal decides to make a rent repayment order under section 43 in favour of a tenant, the amount is to be determined in accordance with this section. (2) The amount must relate to rent paid during the period mentioned in the table. If the order is made on the ground that the landlord has committed the amount must relate to rent paid by the tenant in respect of an offence mentioned in row 3, 4, 5, 6 or 7 of the table in section 40(3) a period, not exceeding 12 months, during which the landlord was committing the offence (3) The amount that the landlord may be required to repay in respect of a period must not exceed— (a) the rent paid in respect of that period, less (b) any relevant award of universal credit paid (to any person) in respect of rent under the tenancy during that period.(4) In determining the amount, the tribunal must, in particular, take into account— (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. Section 95 provides: (1) a person commits an offence if 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… (3) In proceedings against a person for an offence under subsection (1) it is a defence that, at the material time— (a) a notification had been duly given in respect of the house under section 62(1) or 86(1), or (b) an application for a licence had been duly made in respect of the house under section 87, and that notification or application was still effective (see subsection (7)). (4) In proceedings against a person for an offence under subsection (1) or (2) it is a defence that he had a reasonable excuse— (a) for having control of or managing the house in the circumstances mentioned in subsection (1), or (b) for failing to comply with the condition, as the case may be.