First-tier Tribunal Grants Rent Repayment Order Against Unlicensed HMO Landlord

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL [NAME_1] CHAMBER ([NAME_1]) Case reference :

LON/00AN/HMF/2024/0079 LON/00AN/HMF/2024/0082 LON/00AN/HMF/2024/0108

[NAME_1] : 53 [ADDRESS], [POSTCODE]

Applicant :

[redacted] [NAME_2] (2) [NAME_5] (3) [NAME_8] : Unrepresented Respondent : [redacted] : Not represented Type of application : Application for a rent repayment order by the licencee: sections 40, 41, 43 and 44 of the Housing and Planning Act 2016 Tribunal members : Judge [NAME_13] [NAME_17] Venue : 10 [ADDRESS] [POSTCODE] Date of hearing : 14th October 2024 Date of decision : 27th November 2024

DECISION

2 In this determination, statutory references relate to the Housing Act 2004 unless otherwise stated.

Decisions of the Tribunal

(1) The Tribunal find that the Respondent did commit an offence under section 72(1) without reasonable excuse.

(2) The Tribunal makes a rent repayment order against the Respondent for the global sum of £8,561.87 which is to be paid to the Applicants within 28 days of the date this Decision is sent to the parties. The global sum consists of the following sums:

• £3,347.08 to [NAME_20] for the period 28th October 2023 to 11th February 2024; • £2,822.27 to [NAME_21] for the period 28th October 2023 to 11th February 2024; and • £2,393.52 to [NAME_22] for the period 28th October 2023 to 11th February 2024.

(3) The Tribunal determines that within 28 days of the date this decision is sent to the parties, in respect of the reimbursement of the application fees paid by each of the Applicants pursuant to rule 13(2) of the Tribunal Procedure (First-tier Tribunal) ([NAME_1] Chamber) Rules 2013, the Respondent shall pay the following sums: • £100 to [NAME_20]; • £100 to [NAME_21]; and • £100 to [NAME_22]

(4) The Tribunal also determines that within 28 days of the date this decision is sent to the parties, in respect of the reimbursement of the hearing fee paid by the Applicants pursuant to rule 13(2), the Respondent shall pay [NAME_20] £220.00 in respect of the hearing fee paid to the Tribunal. This payment is to be made to [NAME_20] in her capacity as the lead tenant, and it will be her responsibility to forward it to, or distribute it amongst, the other Applicants, as may be appropriate.

(5) The reasons for the Tribunal’s decisions are given below. The Application 1. This decision relates to three Applications made by former tenants under section 41 of the Housing and Planning Act 2016 for a rent repayment order. Details of the Applications are as follows.

1.1 An Application from [NAME_2] dated 12th February 2024 who claims a rent repayment order in the amount of £5,411.36 for the period 7th October 2023 to 12th February 2024.

3 1.2 An Application from [NAME_5] dated 12th February 2024 who claims a rent repayment order in the amount of £3,986.67 for the period 28th October 2023 to 12th February 2024.

1.3 An Application from [NAME_23] dated 5th March 2024 claiming a rent repayment order in the amount of £4,142.67 for the period 28th October 2023 to 12th February 2024.

2. By an order dated 7th May 2024 the Tribunal gave directions, including making provision for the parties to each prepare separate bundles for the hearing containing supporting documents. Subsequently, the Tribunal listed the final hearing on 14th October 2024. The Hearing 3. The parties did not request an inspection of the [NAME_1] by the Tribunal, and the Tribunal did not consider one was necessary or proportionate.

4. The Tribunal was provided with the following documents from the Applicants: [redacted] A combined 204-page bundle; 4.2 A response letter dated 3rd October 2024; and 4.3 A 4-page skeleton argument prepared on behalf of all three Applicants.

5. The Tribunal received the following documents from the Respondent: [redacted] A spreadsheet titled “[ADDRESS], maintenance and additions” (the “Spreadsheet”); 5.2 Internal photographs of the [NAME_1] (x7); 5.3 A folder containing 32 separate documents (certificates, bills, invoices etc) regarding the [NAME_1]; and 5.4 An undated letter from the Respondent.

6. The Spreadsheet set out expenses relating to the [NAME_1] for the period 1st April 2023 to 30th April 2024. The expenses listed in the Spreadsheet are as follows: 6.1 Electricity; 6.2 Gas; 6.3 Council tax; 6.4 Wifi 6.5 Water; 6.6 Cleaning; 6.7 Service charges; 6.8 Management; and 6.9 Additions.

4 7. All three Applicants attended the hearing and gave evidence and submissions themselves in support of the Applications. They were accompanied by, amongst others, [NAME_25], their litigation friend.

8. The Respondent did not attend the hearing. Before the hearing began, the case officer tried to contact the Respondent twice by telephone but received no answer. The Tribunal postponed the start of the hearing to 10.30am to allow her time to arrive. But the Respondent did not attend, nor did the Tribunal receive any explanation for her non-attendance. The Tribunal noted the Respondent has referred to health issues and other (unspecified) personal matters in her correspondence with the Tribunal. However, no medical or other supporting evidence has been provided. Furthermore, we were satisfied that she was aware of the hearing date, and noted she has not requested a postponement on health or any other grounds. After due consideration, the Tribunal decided to proceed with the hearing in the Respondent’s absence, taking into account the documentation she had provided (see paragraphs 5 to 5.4 above). The Background

9. On 6th December 2021 the London Borough of [NAME_29] designated for additional licensing all houses in multiple occupation (HMO) within its borough that satisfy one of the five categories at section 254 of the Housing Act 2004.

10. In this case, the relevant category defines an HMO under section 254(3), which states it is an HMO where:

10.1 The [NAME_1] is a self-contained flat;

10.2 The flat is occupied by persons who do not form a single household;

10.3 The flat is occupied by those persons as their only or main residence;

10.4 Their occupation of the flat constitutes the only use of that accommodation;

10.5 Rents are payable in respect of at least one of those persons’ occupation of the flat; and

10.6 Two or more of the households who occupy the flat share one or more basic amenities (e.g. toilet, washing and cooking facilities).

11. A copy of the relevant Notice of Designation of Areas for Additional Licensing is in the Applicants’ bundle. The designation applies from 5th June 2022 until 4th June 2027. 12. The Applications relate to the [NAME_1] known as [ADDRESS], Shepherd’s [ADDRESS], London, [POSTCODE] (“the [NAME_1]”). The [NAME_1] is part of a

5 high-rise block situated within the borough of [NAME_29]. And the accommodation within the [NAME_1] comprises a combined kitchen/living area, two shower rooms, and four bedrooms.

13. The Respondent is a registered long leaseholder of the [NAME_1], and she is named as the landlord on the Applicants’ assured shorthold tenancy agreements. 14. [NAME_20] occupied the [NAME_1] under an assured shorthold tenancy from 7th October 2023 to 28th March 2024. Her rent was £1,315.00 per month inclusive of bills.

15. [NAME_21] was an assured shorthold tenant at the [NAME_1] from 28th October 2023 until 28th March 2024, and her rent was £1,115.00 per month inclusive of bills.

16. [NAME_30] occupied the [NAME_1] as an assured shorthold tenant from 28th October 2023 to 27th February 2024, and her rent was £1,195.00 per month inclusive of bills.

17. Initially, the fourth bedroom was occupied intermittently on an “Air BnB” basis, although from around 10th March 2024 the Respondent occupied this room.

18. At the start of their tenancies, the Respondent dealt with day-to-day issues relating to the [NAME_1] herself. However, on or before 18th January 2024, she instructed an agent, [NAME_31], to deal with these on her behalf. Shortly afterwards, on around 24th January 2024, [NAME_31] had a meeting with the Applicants, when they informed her that the [NAME_1] required a licence. Although it seems by this time the Respondent was already aware a licence was required because she states she learnt about the licensing requirements when she instructed [NAME_31] (see paragraph 29 below).

19. After that meeting, the Respondent offered [NAME_22] alternative accommodation. The Respondent states she offered [NAME_22] alternative accommodation to try to reduce the number of occupants below the HMO threshold. In her witness statement, [NAME_22], who is a student, explains the alternative accommodation was further away from her university. She therefore declined the offer, and remained at the [NAME_1] until 27th February 2024. [NAME_20] and [NAME_21] moved out the following month, on 28th March 2024.

The Issues

20. In light of the above, the issues for the Tribunal to determine are as follows: 20.1 Whether the Respondent committed an offence under section 72(1) as a result of the following: (i) being in control of or managing the [NAME_1];

6 (ii) the [NAME_1] being an HMO; (iii) Whether a licence was required for the [NAME_1]; and (iv) If so, whether there was a licence for the [NAME_1].

20.2 If the elements of the offence at paragraphs 18.1(i) to 18.1(iv) above are met, during the period in which the offence was committed, did the Respondent have a defence to the commission of the offence under section 72(4) and/or 72(5) of the 2004 Act?

20.3 If an offence has been committed, the whole of the rent paid during the period of the offence.

20.4 Whether the Respondent had been responsible for the cost of any utilities at the [NAME_1].

20.5 The severity of the offence.

20.6 Any relevant conduct of the Respondent, her financial circumstances, whether she has any previous convictions of a relevant offence, and the conduct of the Applicants to which the Tribunal should have regard in exercising its discretion as to the amount of the rent repayment order.

The Tribunal’s Decision and Reasons

21. The Tribunal reached its decision after considering the Respondent’s documentation, the Applicants’ oral and written evidence, including documents referred to in that evidence, and taking into account its assessment of the evidence and documentation provided by the parties.

22. As appropriate, and where relevant to the Tribunal’s decision the evidence is referred to in the reasons for the Tribunal’s decision.

23. This determination does not refer to every matter raised by the parties, or every document the Tribunal reviewed or took into account in reaching its decision. However, this doesn't imply that any points raised or documents not specifically mentioned were disregarded. If a point or document was referred to in the evidence or submissions that was relevant to a specific issue, it was considered by the Tribunal.

24. The relevant legal provisions are set out in the Appendix to this decision. The offence under section 72(1) Housing Act 2004

25. The Tribunal is satisfied that the Applicants have proved beyond reasonable doubt that all the elements of the offence under section 72(1) are proved, as set out at paragraphs 26 to 33 below.

26. We find the Respondent was a person managing the [NAME_1] as defined by section 263(3), which states a person manages premises where they are an owner or lessee of the premises, and they receive the rack-rent either

7 directly, or indirectly through an agent. The Applicants have all provided documentary evidence that they paid the rent. The Respondent has not challenged this. The Applicants’ rent payments were made to [NAME_32]. The Tribunal is aware from its experience in [NAME_1] related matters, that [NAME_32] provides the same services provided by a “traditional” or “high street” letting agent, except [NAME_32] provides these online. This was consistent with the Applicants’ oral evidence: they stated they found the [NAME_1] through [NAME_32]. It is also consistent with the documentation: the written tenancy agreements are produced by [NAME_32].

27. We are also satisfied beyond reasonable doubt that the [NAME_1] meets the criteria of [NAME_29]’s Additional Licensing Scheme (see paragraphs 10 to 10.6 above), for the following reasons:

27.1 The [NAME_1] is a self-contained flat; 27.2 It was occupied by the Applicants who are not part of the same household; 27.3 In her witness statement, [NAME_20] explains the [NAME_1] was unoccupied when her tenancy began on 7th October 2023. The Applicant’s evidence, and the Respondent’s Spreadsheet, confirms all three Applicants lived at the [NAME_1] between 28th October 2023 to 12th February 2024. 27.4 The Applicants’ unchallenged evidence was that they occupied the [NAME_1] as their only or main residence; 27.5 Their occupation of the [NAME_1] was the only use of the flat; 27.6 The Applicants paid rent; and 27.7 As there was one kitchen, and two shower rooms, during the period when all three Applicants occupied the [NAME_1], more than two households shared basic amenities.

28. In an e-mail sent on 29th January 2024 by [NAME_33], a Private Housing Services Licensing Officer employed by [NAME_29], he states the council had no record of a licence or licence application in respect of the [NAME_1].

29. In her (undated) letter to the Tribunal, the Respondent states she applied for a licence on 12th February 2024, and explains:

I had not been aware that I was breaching HMO legislation when I first started taking on short term tenants in September. It was only when I took someone on to help me in January this year that it was explained that I was in breach of the rules. At that point I made every effort to correct this.

30. The concluding paragraph of the Respondent’s letter states:

As you can see I have made a loss from this situation but I regret the inconvenience to each of the tenants and the time and efforts of the

8 tribunal. I hope you will understand that I rented this [NAME_1] in good faith and intended no harm.

31. In the above extract, the reference to the Respondent making a loss is understood to relate to the information contained in her Spreadsheet. There is no other specific information regarding the Respondent’s financial circumstances. In her letter she states that she struggled financially during COVID and subsequently. It also seems she rents out another [NAME_1], being the alternative accommodation she offered to [NAME_22] in around January 2024. But the Respondent has not provided any other information regarding her financial circumstances.

32. We do not find the contents of the Respondent’s letter raises any matters that would provide a reasonable excuse, although some points she raises are relevant to mitigation, such as her ignorance of the licensing requirements. Therefore, we do not consider the Respondent has shown on the balance of probabilities, that she has a defence.

33. In the circumstances, having found that the Respondent committed an offence under section 72(1), we also find it is appropriate to exercise our discretion by making a rent repayment order, there being no exceptional circumstances that would justify refusing to make the order. Amount of the Rent Repayment Order

Relevant factors

34. In its decision in [NAME_35] v Roman and others [2022] UKUT 239 (LC), the Upper Tribunal recommended a four-stage approach to determine the amount of the rent repayment order, that approach is summarised as follows:

34.1 Ascertain the whole of the rent for the relevant period;

34.2 Subtract any element of that sum that represents payment by the landlord for utilities that only benefited the tenant/licencee;

34.3 Consider how serious this offence was, both compared to other types of offence in respect of which a rent repayment order may be made and compared to other examples of the same type of offence; and

34.4 Consider whether any deduction from, or addition to, that figure should be made pursuant to section 44(4) of the 2016 Act in the light of the parties’ conduct, the landlord’s financial circumstances and whether the landlord has previously been convicted of an offence to which Chapter 4 of the 2016 Act applies.

9 35. The Tribunal has adopted the approach recommended in [NAME_35] v Roman and others.

The Period of the Offence 36. We find the period of the offence was from 28th October 2023 when all three Applicants were in occupation, to 11th February 2024. This period is different to the period the Applicants have claimed for in two respects.

37. Firstly, [NAME_20] is claiming from 7th October 2023. However, [NAME_20]’s witness statement confirms when her tenancy began on 7th October 2023, the [NAME_1] was empty. The text messages in the bundle suggest there may have been other occupiers between 7th October 2023 to 27th October 2023, but they seem to have occupied the [NAME_1] as an Air BnB, and not as their only or main residence.

Accordingly, their occupation would not bring the [NAME_1] within the HMO definition. Therefore, we find the period of the offence began on 28th October 2023, when [NAME_21] and [NAME_30] tenancies began. So, we conclude [NAME_20] is not entitled to a rent repayment order for the period 7th October 2023 to 27th October 2023.

38. Secondly, the Applicants state the period of the offence was up to and including 12th February 2024. We disagree. It is common ground that the Respondent applied for a licence on 12th February 2024, therefore she did not commit an offence on that day. The last day the offence was committed was on 11th February 2024.

The Amounts Claimed 39. The amounts the Applicants are claiming is as follows:

39.1 [NAME_20] claims £5,411.36; 39.2 [NAME_21] claims £3,986.67; and 39.3 [NAME_22] claims £4,142.67.

40. In their statement of case, the Applicants accept deductions will be made to the above amounts for utility bills.

41. In light of our findings at paragraphs 36 to 38 above, we consider the whole of the rent paid by the Applicants during the period of the offence is: 41.1 [NAME_20] claims £4,604.36;

10 41.2 [NAME_21] claims £3,948.34; and 41.3 [NAME_22] claims £4,102.84.

42. We have reduced the amount [NAME_20] claimed from £5,411.36 to £4,604.36, which we calculate to be the amount of rent she paid during the period of the offence. That reduction has been calculated as follows:

28th October 2023 – 31st October 2023 = £169.681 1st November 2023 – 6th November 2023 = £262.982 7th November 2023 – 6th December 2023 = £1,315.00 7th December 2023 – 6th January 2024 = £1,315.00 7th January 2024 - 6th February 2024

= £1,315.00 7th February 2024 – 11th February 2024 = £226.703

43. At paragraphs 41.2 and 41.3, we have calculated the whole of the rent paid during the period of the offence by reducing the amounts claimed by [NAME_21] and [NAME_22] by one day, using their calculation of the daily rates, which are £38.33 and £39.83 respectively.

44. There are different ways to calculate the daily rate, for instance, by dividing the annual rent payable by 365 days. However, we have adopted the same method that the Applicants used, which is to divide the monthly rent by the number of days in that particular month. Utility and Other Bills 45. Having calculated the whole of the rent paid by the Applicants during the period of the offence, we need to deduct any element of the rent that relates to utility bills.

46. The Respondent has provided various documents regarding the expenditure listed at paragraphs 6.1 to 6.9 above. The “additional” expenses (see paragraph 6.9) relate to the Respondent’s expenditure on furniture, maintenance, and repairs etc. The Respondent has also provided documents regarding service charges and management expenditure (see paragraphs 6.7 and 6.8). In our judgment, it would be inappropriate to make deductions for these sums for a number of reasons. Firstly, they are not utilities. Secondly, some of these expenses fall under the Respondent’s repairing obligation under section 11 of the Landlord and Tenant Act 1985, so liability cannot be transferred to the Applicants. Finally, these are not services which the Applicants would necessarily exclusively benefit from. For instance, repairs and new/replacement domestic appliances will also benefit future occupiers.

1 £1,315 / 31 days = £42.42 x 4 days = £169.68 2 £1,315 / 30 days = £43.83 x 6 days = £262.98 3 £1,315 / 29 days = £45.34 x 5 days = £226.70

11 47. The Respondent’s documents provide the following figures:

47.1 Council tax is £1,015.77, which is the annual amount; 47.2 Water is £339.83 for six months; 47.3 Energy bills for October 2023 to February 2024 appear to be based on estimated costs amounting to £615.00. In February 2024 the energy company estimated annual usage to be around £1,300, which in part is likely to have been based on previous usage; 47.4 Broadband bill for January 2024 was £31.99.

48. Based on the documents the Respondent has provided, we consider council tax would be around £84.00 per month, water £56 per month, and wifi £32.00 per month. Based on our expertise and experience, we consider the energy company’s annual estimate of £1,300 is appropriate, which equates to around £108.00 per month. This means the cost of utilities would be around £280 per month for the [NAME_1]. We note that the Applicants collectively occupy 3 of the 4 bedrooms, therefore, on a broad-brush calculation, their proportion would be 75% of these costs.

Accordingly, £280 x 3.5 months (period of the offence) = £980, and the Applicants’ 75% proportion of this (£980 x 75%) is £735.00, or £245 each for the period of the offence.

49. The Respondent has also included the cost of the cleaner for the communal areas of the [NAME_1]. In our judgment, the cost of the cleaner should be deducted from the amount of the rent repayment order. Although this is not a utility, it is not rent, and we consider it is a service that the Applicants benefited from in the same way that they benefited from the utilities. On around 20th December 2023 one of the Applicants suggested to the Respondent that they would clean the [NAME_1] themselves so that they didn’t have to pay for the cleaner. Presumably as a result of that request, there are no further cleaning costs after 22nd January 2024.

50. According to the Spreadsheet, the cost of cleaning from 30th October 2023 to 22nd January 2024 was £702.00. Adopting a broad-brush approach to calculate that the Applicants would benefit from 75% of the cleaning, the amount to be deducted from the rent repayment order for cleaning is £526.50, or £175.50 each.

The Seriousness of the Offence

51. In fixing the appropriate sum the Tribunal had regard to [NAME_35] v Roman and others and the decision in Hallett v Parker [2022] UKUT 165 (LC). We have also taken into account that proper enforcement of licensing requirements against all landlords, good and bad, is necessary to ensure the general effectiveness of the licensing system and to deter evasion.

12 52. Regarding the seriousness of the offence in this application, namely managing an unlicensed HMO, we find this is at the lower end when compared to other offences for which a rent repayment order may be made. The Applicants have submitted it is at the higher end. However, we have taken into account that the maximum sentence is a scale 5 fine for managing an unlicensed HMO (see section 72(7)). Whereas other offences for which a rent repayment order may be made have higher maximum penalties. For instance, convictions under section 6 of the Criminal Law Act 1977 and the Protection From Eviction Act 1977 may result in imprisonment for up to six months and two years respectively.

53. Based on the Respondent’s letter, we also consider this offence was also committed out of ignorance rather than due to wilful evasion of the licensing scheme. We take into account that the Respondent appears to rent out at least one other [NAME_1], but we have not received evidence indicating that she has an extensive portfolio of properties. The Parties’ Conduct 54. Based on the Respondent’s letter, she would have found about the licencing requirements when she instructed [NAME_31], on or before 18th January 2024. The Respondent took steps to try to reduce the number of occupants below the HMO thresholds by offering [NAME_22] alternative accommodation. Although, for understandable reasons, [NAME_22] did not accept that accommodation, it shows when the Respondent was aware of the licencing requirements, she tried to avoid breaching these. The Respondent subsequently applied for a licence on 12th February 2024, which in the circumstances, we do not consider this constitutes an undue delay.

55. The Applicants complain about various aspects of the [NAME_1]. In her application form, [NAME_22] states that there was no gas safety certificate displayed in the [NAME_1], nor was one given to her. She also complains that she was not given an Energy Performance Certificate, that there was no carbon monoxide detector, no fire doors, no fire alarm nor any fire safety equipment such as fire extinguishers or fire blanket. [NAME_20]’s witness statement states there were key operated locks on the bedroom doors, which could hinder escape in the event of a fire: there is photographic evidence of this in the hearing bundle. The Applicants’ statement of case maintains that the Respondent would provide less than 24 hours’ notice of visits, that there were limited cooking facilities, and there was an overloading of electrical sockets.

56. The Respondent has provided photographic evidence that there was a smoke alarm and a carbon monoxide detector in the [NAME_1]. She explains the latter was not readily visible to the Applicants, which is consistent with the photograph provided. The smoke alarm, which was

13 fitted to the kitchen ceiling, may not have been noticed by the Applicants, but the Respondent’s photograph indicates there was one.

57. The Respondent has also provided a gas safety certificate dated 3rd November 2023. If there was an earlier one, this has not been provided. However, there seems no reason why the Respondent would have obtained a gas safety certificate on 3rd November 2023, unless it was to replace one that had expired. While the Applicants correctly point out, the certificate should have been provided to them and displayed, the fact that the Respondent appears to have had a gas safety certificate up to 3rd November 2023, and did have one thereafter, mitigates the failure to provide and display a copy.

58. As to the alleged lack of notice, the WhatsApp messages indicate these visits predominantly relate to the communal areas of the [NAME_1], and the fourth bedroom when the Respondent was conducting viewings. We note the Respondent retained possession of the communal area and the fourth bedroom, when it was vacant, so there was no requirement to give notice. Although it’s noted access was required to the bedrooms to complete the EPC assessment, and the Applicants were given very little notice about this. In these circumstances, we consider the limited notice should be balanced against the Respondent’s desire to regularise the letting. Apart from the Applicants’ assertions, there is no evidence that electrical sockets were overloaded.

59. We have been provided with internal photographs of the [NAME_1], which in our judgment, show accommodation which is satisfactory. The other complaints such as inadequate facilities, appear no more serious than the sorts of issues that may arise during a letting. We also understand the Respondent addressed these, in what we consider to be a reasonable timescale.

60. Nonetheless, we do consider one aspect of the Respondent’s conduct is serious compared to other examples of this type of offence. This relates to her moving into the [NAME_1] in around March 2024, which according to [NAME_20]’s evidence, was in retaliation to the Applicants raising the Respondent’s failure to obtain a licence. [NAME_20] states that the atmosphere in the [NAME_1] changed after the Respondent moved in. But she also doubted whether there was any genuine need for the Respondent to move into the [NAME_1] as she didn’t stay overnight very often. [NAME_20] states there was tension in the communal area when the Respondent was around, that she would sometimes raise her voice, and would do things and make comments which were disruptive such as moving food, kitchen items and remove a whiteboard in the kitchen used as a meal planner.

61. Also relevant to the Respondent’s conduct are the fire deficiencies referred to above, such as the absence of fire doors, and the key operated locks on the bedroom doors for most of the Applicants’ occupation. Based on these

14 factors, we consider a rent repayment order of 80% to [NAME_20] and [NAME_21] is appropriate who were in occupation when the Respondent moved in. A rent repayment order of 65% to [NAME_22] is appropriate, because she vacated before the Respondent moved in.

62. In exercising our discretion to determine an appropriate amount, we do not consider the other complaints made by the Applicants justify an adjustment to the amount awarded.

63. There is no conduct on the Applicants’ part, that warrants any adjustment to the amount of the rent repayment order.

Financial Circumstances and Mitigation 64. We have not been provided with sufficient details regarding the Respondent’s health and financial problems to take these into account as mitigation. Previous Convictions 65. There is no evidence to indicate the Respondent has previous convictions. The Award 66. In summary, from the whole of the rent paid during the period of the offence we have subtracted £245 from each Applicants’ award for utilities, and £175.50 for cleaning. We have awarded 65% to 80% of the remaining amount paid by them during the period of the offence.

67. Therefore, having regard to the total rent for the relevant period, the severity of the offence, the adjustments that we consider should be made in light of factors to which the Tribunal must have regard under section 44(4) of the 2016 Act, the Tribunal makes a rent repayment order in the total amount of £8,561.87, representing the following:

67.1 [NAME_20] is to be paid £3,347.08; 67.2 [NAME_21] is to be paid £2,822.27; and 67.3 [NAME_22] is to be paid £2,393.52.

68. The Tribunal would remind the parties that it does not have the power to order the payment of the rent repayment order. It can only determine the amount of the rent repayment order.

15 Name: Judge Tueje Date: 27th November 2024

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) ([NAME_1] 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 [NAME_1] and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).

16

Appendix of Relevant Legislation Housing Act 2004 72 Offences in relation to licensing of HMOs (1) A person commits an offence if he is a person having control of or managing an HMO which is required to be licensed under this Part (see section 61(1)) but is not so licensed. (2) A person commits an offence if– (a) he is a person having control of or managing an HMO which is licensed under this Part, (b) he knowingly permits another person to occupy the house, and (c) the other person’s occupation results in the house being occupied by more households or persons than is authorised by the licence. (3) A person commits an offence if– (a) he is a licence holder or a person on whom restrictions or obligations under a licence are imposed in accordance with section 67(5), and (b) he fails to comply with any condition of the licence. (4) 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 (b) an application for a licence had been duly made in respect of the house under section 63, and that notification or application was still effective (see subsection (8)).

17 (5) In proceedings against a person for an offence under subsection (1), (2) or (3) 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 permitting the person to occupy the house, or (c) for failing to comply with the condition, as the case may be. (6) A person who commits an offence under subsection (1) or (2) is liable on summary conviction to a fine. (7) A person who commits an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale. (7A) See also section 249A (financial penalties as alternative to prosecution for certain housing offences in England). (7B) If a local housing authority has imposed a financial penalty on a person under section 249A in respect of conduct amounting to an offence under this section the person may not be convicted of an offence under this section in respect of the conduct. (8) For the purposes of subsection (4) a notification or application is “effective” at a particular time if at that time it has not been withdrawn, and either– (a) the authority have not decided whether to serve a temporary exemption notice, or (as the case may be) grant a licence, in pursuance of the notification or application, or (b) if they have decided not to do so, one of the conditions set out in subsection (9) is met. (9) The conditions are– (a) that the period for appealing against the decision of the authority not to serve or grant such a notice or licence (or against any relevant decision of the appropriate tribunal) has not expired, or (b) that an appeal has been brought against the authority’s decision (or against any relevant decision of such a tribunal) and the appeal has not been determined or withdrawn. (10) In subsection (9) “relevant decision” means a decision which is given on an appeal to the tribunal and confirms the authority’s decision (with or without variation).

Housing and Planning Act 2016

18 40 Introduction and key definitions

(1)This Chapter confers power on the First-tier Tribunal to make a rent repayment order where a landlord and 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

(b) pay a local housing authority an amount in respect of a relevant award of universal credit paid (to any person) in respect of rent under the tenancy.

(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 to that landlord.

Act section general description of offence 1 Criminal Law Act 1977 section 6(1) violence for securing entry 2 Protection from Eviction Act 1977 section 1(2), (3) or (3A) eviction or harassment of occupiers 3 Housing Act 2004 section 30(1) failure to comply with improvement notice 4 section 32(1) failure to comply with prohibition order etc 5 section 72(1) control or management of unlicensed HMO 6 section 95(1) control or management of unlicensed house 7 This Act section 21 breach of banning order

(4) For the purposes of subsection (3), an offence under section 30(1) or 32(1) of the Housing Act 2004 is committed in relation to housing in England let by a landlord only if the improvement notice or prohibition order mentioned in that section was given in respect of a hazard on the premises let by the landlord (as opposed, for example, to common parts).

41 Application for rent repayment order

19 (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.

43 Making of a rent repayment order

(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 had 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);

44 Amount of order: tenants

(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 1 or 2 of the table in section 40(3) the period of 12 months ending with the date of the offence 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—

20 (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.