Tenant's Application for Rent Repayment Order Dismissed by First-tier Tribunal

OUTCOME: Dismissed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : BIR/00FN/HSA/2024/0001

Property : Flat A, 114 Granby St, Leicester

Applicants : [redacted] : None Respondent : [redacted] : [COUNSEL] Solicitors Type of application :

Application for a rent repayment order under the Housing and Planning Act 2016

Tribunal member : Judge C [NAME] A McMurdo MCIEH

Date and place of hearing : 8 July 2024 at Leicester County Court Date of decision: 24 July 2024

DECISION

© CROWN COPYRIGHT 2024

2 Background 1. On 4 January 2024, [NAME] [NAME] [NAME] and Miss [NAME] (“the Applicants”) applied to this Tribunal for a rent repayment order under the Housing and Planning Act 2016 (“the Act”).

2. The basis of the application was that they were evicted from their flat at Flat A, 114 Granby St Leicester (“the Flat”), by their landlord, which they say is an offence under section 1 of the Protection from Eviction Act 1977 (“the 1977 Act”). Commission of that offence is one of the grounds for the making of a rent repayment order.

3. After an unsuccessful attempt to hear the case in May 2024 by video hearing, the Tribunal directed that it be heard face to face. A hearing was arranged in Leicester which took place on 8 July 2024. The hearing was attended by the Applicants and by their landlord, [NAME] [RESPONDENT] (“the Respondent”). [NAME] [RESPONDENT] was represented by [NAME] [RESPONDENT] of [NAME].

4. The Tribunal considered documents and witness statements filed by the parties. Some of the Respondent’s documents had not found their way to the Applicants by the time of the hearing. Copies were provided to the Applicants who confirmed that they had no objection to the hearing proceeding. A further statement from the Respondent was introduced at the beginning of the hearing. The Tribunal refused to admit it for consideration initially, but during the hearing the key components of the position statement were explained in oral evidence by the Respondent. The Tribunal therefore indicated at the end of the hearing that it would have regard to it. The Applicants did not raise any objection.

5. This document sets out the decision the Tribunal has made on the application with our reasons for that decision. Law Protection from Eviction Act

6. The relevant provisions of the 1977 Act, so far as this application is concerned are as follows-

“1 Unlawful eviction and harassment of occupier. (1) In this section “residential occupier”, in relation to any premises, means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises. (2) If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed,

3 and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises. (3) If any person with intent to cause the residential occupier of any premises— (a) to give up the occupation of the premises or any part thereof; or (b) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof; does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence. (3A) Subject to subsection (3B) below, the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if— (a) he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or (b) he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence, and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises. (3B) A person shall not be guilty of an offence under subsection (3A) above if he proves that he had reasonable grounds for doing the acts or withdrawing or withholding the services in question. (3C) In subsection (3A) above “landlord”, in relation to a residential occupier of any premises, means the person who, but for— (a) the residential occupier’s right to remain in occupation of the premises, or (b) a restriction on the person’s right to recover possession of the premises, would be entitled to occupation of the premises and any superior landlord under whom that person derives title. (4) A person guilty of an offence under this section shall be liable— (a) on summary conviction, to a fine not exceeding the prescribed sum or to imprisonment for a term not exceeding 6 months or to both; (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 2 years or to both. (5) Nothing in this section shall be taken to prejudice any liability or remedy to which a person guilty of an offence thereunder may be subject in civil proceedings. (6) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager or

4 secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.”

Rent repayment

7. The relevant provisions of the Act, so far as this application is concerned, are as follows –

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 [NAME], 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.

Act Section General description of offence 2 Protection from Eviction Act 1977 Section 1(2), (3) or (3A) Eviction or harassment of occupiers

41 Application for rent repayment order

(1) [NAME] 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) [NAME] 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 rent repayment order

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(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 [NAME]);

44 Amount of order: tenants

(1) Where the First-tier Tribunal decides to make a rent repayment order under section 43 in favour of [NAME], 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 …5… 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.

6 51 Housing benefit: inclusion pending abolition

(1) In this Chapter a reference to universal credit or a relevant award of universal credit includes housing benefit under Part 7 of the Social Security Contributions and Benefits Act 1992.

Termination of tenancies

8. A residential tenancy cannot be brought to an end by the landlord physically dispossessing the tenant of occupation even if there are rent arrears. The only remedy for a landlord owed rent in this situation is to serve notice to end the tenancy and then commence court proceedings for a possession order.

9. However, if the tenant has voluntarily vacated the flat, the tenancy will have come to an end.

10. Voluntary vacation, or abandonment, requires evidence of vacation. [NAME] is not required to be resident in a property and may have two leases. It is a question of fact, and the onus of proof is upon the landlord. It may shift to the tenant if the landlord can show the tenant has not been in occupation for a substantial period. In one case, a period of 10 months was considered to be a substantial period (see Aldridge Leasehold Law para 6.192).

11. Part 3 of the Act contains provisions relating to making it simpler to recover abandoned premises in England, but these provisions are not in force. Facts

12. From the documents and oral evidence we heard, we find the facts as set out in the following paragraphs.

13. The Applicants took a joint tenancy of the Flat on 1 July 2019 at a monthly rent of £370.00, payable on the first day of each month. The Respondent is their landlord. The rent does not include the cost of any utilities. The Applicants were responsible for paying those outgoings on top of the rent.

14. The tenancy was for six months but at the expiry of the initial six month period, the Applicants remained in possession and the tenancy therefore became a statutory periodic tenancy.

15. The Flat is above a [NAME] run by the Respondent. Flats B and C are on floors above flat A. There was therefore regular contact between the parties as the Applicants went into the [NAME] frequently.

16. The Applicants did not always pay their rent on time. The arrangement between them was that [NAME] [NAME] was responsible for paying the rent and Miss [NAME] paid all the other household bills.

7 17. Whilst there may have been oral conversations between the First Applicant and the Respondent about rent, the Respondents preferred communication method appears to have been via [NAME]. The evidence in this case included [NAME] messages (we do not know if all of them were put in evidence) exchanged between the First Applicant and the Respondent during 2020 – 2023.

18. The Respondent accepted that the rent for November 2022 was paid. On 30 November 2022, the First Applicant sent this message concerning the rent that was due to be paid on 1 December 2022: “Is it possible for me to forward this months rent till end of next month please I started new job just like over a week ago so I didn’t get paid we’ll let me know if your okay with this and I can pay extra £100 to make it £840 end of next month????” 19. The exchange continued the same day as follows: Respondents reply: Thanks for offer I just need my rent on time First Applicant: [redacted] two days late 20. On 4 December 2022, the Respondent messaged – “Rent remainder” (intended to remind the First Applicant of the rent due on 1 December).

21. The First Applicant replied on 5 December 2022 – “Yes boss haven’t forgotten just gathering the rest to send it all together”.

22. The Respondent sent another reminder on 12 December 2022. The First Applicant replied – “Yes boss I’m at work I thought we talked I will pay later with the extra £100 I did try to get it to you last weekend”. The Respondent replied “Ok”.

23. On 30 December 2022, the Respondent sent another message reminding the First Applicant that he needed to pay the rent. The First Applicant did not respond.

24. On 2 January 2023, the Respondent posted a notice on the door of the Flat which was headed “Notice to tenant of abandonment of premises”. It was addressed to both Applicants and was dated 2 January 2023. The material part of the notice said: “I hereby give you notice that you have abandoned the residential premises at [ADDRESS], [POSTCODE]. If you do not inform me within 24 hours after the giving of the notice that you have NOT abandoned the premises, I will enter the premises for the purpose of inspecting and securing them. I may also give you a notice to end the tenancy agreement or seek a court order to end the tenancy agreement.”

8 25. There are some official looking notes at the end of the notice. They state that the notice is advising that the landlord has reasonable grounds for suspecting the tenants have abandoned the premises. Reasonable grounds are defined as being absent from the premises for at least 7 days, rent being outstanding for at least 10 days, and that uncollected mail or other material is present at the premises. The notes state that failure to contact the landlord within 24 hours means the landlord will enter the premises to inspect and secure them and may result in the giving of a notice to end the tenancy or the seeking of a court order to end the tenancy.

26. On 6 January 2023, the Respondent messaged again as follows: “As you didn’t reply any of my phone calls or text messages and 2 months rent still due I’m terminating your contract and changing the locks”.

27. On the same date, the Respondent arranged for a person who carries out practical management requirements for him to enter the Flat. A video of what was found on entering was viewed by the Tribunal. The Flat was not tidy; items and clothing were strewn around the Flat, which consisted of a kitchen and a single main living room with bed. However, there were clearly many personal belongings, including clothing, a television, what appeared to be a computer, books and what the [NAME] Applicant described as university notes, and a chest of drawers. The [NAME] Applicant’s evidence was that the chest of drawers contained her passport and other important documents.

28. Our view is that the type and extent of the possessions we saw in the video did not create the impression that the flat had been abandoned. There were clearly some items of some value and some of personal relevance to someone.

29. On 22 January 2023, the Respondent changed the locks on the Flat.

30. On 26 January 2023, the Respondent posted a further notice to the Flat by pushing it under the door.

31. On 4 February 2023, the Respondent cleared the Flat of all the possessions and belongings in it. Most of them were taken to the Council tip (under authority of a specially obtained licence). The television was moved to the flat of the occupant of the flat above Flat A. The Respondent said he saw no passport amongst the belongings cleared from the Flat.

32. On 6 February 2023, the First Applicant sent a [NAME] message to the Respondent saying: “Hello, [RESPONDENT] this is [RESPONDENT] I got into a incident where I was in hospital then on remand for last couple months I just got my personal stuff back from the authorities if your available tomorrow I will like to set up a call to sort out the bills payments n moving our stuff out of the apartment as soon as possible Also I might have this phone taken again if that does become the case again contact me on this number [number given] Please

9 message this number directly for now and my direct messages are only working nothing else E.g. [NAME]” 33. The First Applicant then spoke to the Respondent on the phone. We think on the balance of probabilities, this conversation was on 6 February 2023. The Respondent told him that the Flat was now empty, and the contents disposed of.

34. The [NAME] Applicant then telephoned the Respondent as she was distressed about the disposal of her belongings, though not, according to the Respondent, by the termination of the tenancy.

35. On 8 February 2023, the Respondent re-let the Flat to new tenants.

36. The Applicants visited Leicester on 8 February 2023. Their case is that they visited to complain to the Respondent about the termination of the tenancy and they reported him to the Council and the Police for unlawful eviction. They also made unsuccessful attempts to find their belongings.

37. Neither the Council nor the Police have taken any further action. The Respondent’s evidence was that he did not take legal advice on the termination of the Applicants’ tenancy until after 8 February 2023 and he had been unaware of the law until that point. He had carried out research on the internet to find a form of notice of abandonment. He said he genuinely believed the Flat had been abandoned because of the video of the state it was in. The purpose of placing the notice on the door was to provoke a response from the Applicants. He felt he had to change the locks on 22 January 2023 because he was concerned about security of his [NAME]. He believed thieves could enter the flat and access the [NAME] through the floorboards of the flat.

38. The Respondent’s case is that his one of his other tenants had alleged they had not heard any noise from the Flat since the end of September 2022.

39. There is conflicting evidence on whether the Applicants were in occupation of the Property at all material times, and particularly prior to around 18 or 19 December 2022. From that date, they accept that they were staying in London. Their evidence is that the stay was temporary, over Christmas. The Respondents case is that they had moved to London earlier than mid-December 2022 and their stay was permanent. Whichever is right, we find that they never returned to live in the Flat after leaving for London.

40. The evidence on this dispute was: a. The [NAME] Applicant gave evidence to us that she had accepted a new permanent work contract in London to run from 18 or 19 December 2022, and the First Applicant said his work pattern involved work in London for 4 days a week and then returning to Leicester for the rest of the week;

10 b. The First Applicant said he had held a conversation with the Respondent on the street outside the Flat on or around 17 December 2022 in which he had informed the Respondent that he and the [NAME] Applicant would be going to London for the Christmas period. He said he came to an arrangement with the Respondent to the effect that the Respondent would give him until the end of February to settle rent arrears (which would by that time be 3 month’s rent) for an additional £100 compensation. c. The Respondent does not recall that conversation and does not believe it took place; d. One of the Respondent’s other tenants (who did not attend the hearing to give oral evidence on the point) told him that she had not heard any sounds from the Flat since around the end of September 2022; e. There are [NAME] messages on 18 and 20 October from the Respondent to the First Applicant about a parcel being held for collection and a problem with a door being left open that are strongly suggestive of the Applicants (or one of them) physically being present in Leicester for the reply to have any real meaning; f. There is evidence of Uber bookings in Leicester on 14 and 21 November and 1, 2, and 3 December 2022, and a takeaway order from [NAME] takeaway on 24 November 2022; g. The specific evidence about the conversation on 17 December 2022 was not provided until the Applicants’ witness statements were made, in June 2024 (though conversations regarding the Christmas visit to London were referred to in the [NAME] Applicant’s witness statement dated February 2024 (wrongly referred to as 17 February 2023), which was her first opportunity to state her case.

41. We find that it is most likely that the Applicants were resident at the Flat until at least early or mid-December 2022 – not least because they had paid rent until the end of November, and the [NAME] Applicant only had a convincing reason for not wishing to stay in Leicester at the point where she secured a permanent job in London.

42. We consider the Respondent’s denial of the conversation on 17 December 2022 to the effect that the Applicants were visiting London for a temporary period over Christmas is more convincing than the First Applicants assertion that the conversation took place. We note that the First Applicant gave evidence to us that his claim to have been on remand for a period (in his message of 6 February 2023) was untrue and had only been stated to provide an explanation for delay in contacting the Respondent. This was an admission that they did not always tell the truth when communicating with the Respondent. We also found his other evidence to be generally unconvincing.

11 43. Our view is that the Applicants probably did not intend to return to live permanently in Leicester after Christmas 2022. Certainly, they had not returned by 6 February 2023. The First Applicant’s [NAME] message of that date gives no hint of an intention to return to live in the Flat.

44. There is also conflicting evidence concerning the reason for the Applicants contacting the Respondent again on 6 February 2022. Their case is that it was in response to the Respondent’s message of 2 January 2023 (which they had not been able to access earlier as the First Applicant said he had deleted [NAME] from his phone) saying that their tenancy had been ended. The Respondent disputes that the Applicants had read that message. Evidence of the date that a message had been read is, according to the Respondent, available from [NAME], and that evidence supports the case that the 2 January 2023 message had not been read until 17 February 2023.

45. Whatever the reason for the contact, it is clear that on around 6 February, there WAS [NAME] and telephone contact. We find that it is likely the Applicants were not aware, until that contact, of the Respondents actions to end their tenancy on or after 2 January 2023. This is because we accept the Respondent’s evidence that the First Applicant did not in fact read the message dated 6 January 2023 until 17 February 2023 and did not visit Leicester to see the notice or notices that had been posted on the door of the flat or pushed under the door. And, as we have pointed out above, the First Applicant’s [NAME] message of 6 February 2023 is not the type of message [NAME] would send if he disputed the Respondent’s retaking of possession.

46. Our view is that the Applicants probably contacted the Respondent in February 2023 because they realised they needed to bring their Leicester accommodation arrangements to an end and collect their belongings and resolve any outstanding financial liability to the Respondent. The First Applicant’s message on 6 February 2023 is not consistent with wising to sustain the tenancy. We find the First Applicant’s assertion that the Respondent agreed to wait for rent until the end of February 2023 wholly unconvincing. We find that the First Applicant would have been well aware he owed arrears of rent for December 2022 and January 2023, and he should also have paid for February on 1 February 2023, when he sent his message on 6 February 2023. Discussion 47. The Tribunal has first to determine whether the Respondent has committed an offence under section 1(2) of the 1977 Act. Only if we find he has, can we then consider whether to make a rent repayment order.

48. An offence under the 1977 Act must be established beyond any reasonable doubt. There is a reasonable excuse defence.

49. There is no doubt, on the facts, that on 2 January 2023, the Respondent had decided that he would retake physical possession of the flat on the

12 basis that it had been abandoned, and in the retaking of the premises the Respondent essentially evicted the Applicants from the Flat. That is the only possible reasonable interpretation of the notice that was placed on the door of the flat on that date. That was followed by changing the locks on 22 January 2023 and removing and disposing of all the Applicants’ possessions on 4 February 2023.

50. We are unpersuaded that the Applicants abandoned the Flat. The [NAME] trail indicated that in December the Applicants were attempting to gather funds together to pay the rent. The video evidence did not suggest abandonment. In our view, the Respondent was in the unenviable position of having the Flat tenanted by tenants who had failed to pay their rent but who were not communicating with him. His proper remedy, in order to terminate the tenancy, was to take county court possession proceedings.

51. We have given some thought to the possibility that the Applicants had surrendered their tenancy. We reject that possibility though. Firstly, it has not been put forward by the Respondent. Secondly, we can see no unequivocal acts by the Applicants which are inconsistent with the continuation of their tenancy.

52. However, this does not mean that an offence under section 1(2) of the Act is made out. We have determined that the tenancy continued in existence, but it is a requirement for the offence to be made out that the Applicants be “residential occupiers” (section 1(1)); i.e. that the Applicants at the date of the offence had to have been in occupation of the Flat.

53. It is not straightforward to fix a date on which the alleged offence may have been committed. The Applicants have selected 6 January 2023 being the date of the [NAME] message of that date notifying them of termination of their tenancy. Following the hearing, we are in some doubt about whether the Applicants received that message. Our view is that the Respondent unlawfully terminated the tenancy on the date the locks of the Flat were changed (i.e. 22 January 2023) as that is the date on which the Applicants were in effect deprived of the right of occupation.

54. By 22 January 2023, there had been no contact between the Applicants and the Respondent for six weeks. There had been no evidence of occupation of the Flat by the Applicants since mid-December 2022. Although unknown to the Respondent, the [NAME] Applicant had secured a permanent job in London. Both the Applicants had family homes in London. The First Applicant’s employment had been in London since around August 2022.

55. As we have identified above, we consider it to be significant that in his message on 6 February 2023, the First Applicant made no reference to returning to live in Leicester. The message suggests that his primary concern was the collection of his belongings.

13 56. We are drawn to conclude that on 22 January 2023, the Applicants were not in residential occupation of the Flat. They were still tenants but were simply not in occupation. In those circumstances, any offence under section 1 of the Act is not made out beyond reasonable doubt.

57. Having reached this conclusion, we must inevitably dismiss the application for a rent repayment order. As the Applicants have not proved that an offence was committed, no rent repayment order can be made. Decision 58. The application for a rent repayment order is dismissed. Appeal

59. Any appeal against this decision must be made to the Upper Tribunal (Lands Chamber). Prior to making such an appeal the [NAME] must apply, in writing, to this Tribunal for permission to appeal within 28 days of the date of issue of this decision (or, if applicable, within 28 days of any decision on a review or application to set aside) identifying the decision to which the appeal relates, stating the grounds on which that party intends to rely in the appeal, and stating the result sought by the party making the application.

Judge C Goodall First-tier Tribunal (Property Chamber)