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

OUTCOME: Dismissed

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FIRST-TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY) Case reference : LON/00AJ/HMF/2021/0277 HMCTS code (paper, video, audio)

P: PAPERREMOTE Property : [ADDRESS] [POSTCODE] Applicant : [redacted] : In person Respondent : [redacted] Representative :

Type of [NAME] : [NAME] for a rent repayment order by tenant – ss. 40,41,43 & 44 of the Housing and Planning Act 2016 Tribunal member(s) : Judge Tagliavini Venue : 10 [ADDRESS] [POSTCODE] Date of decision : 8 April 2022

DECISION

Covid-19 pandemic: description of hearing This has been a remote hearing on the papers on a preliminary issue of jurisdiction. The form of remote hearing was P:PAPERREMOTE. A face-to- face hearing was not held because all issues could be determined on paper by way of written submissions from both parties, all of which were taken into consideration by the tribunal in reaching its determination.

2 The tribunal’s summary decision (1) The [NAME] for a rent repayment order is struck out under rule

9(2)(a) and (e) of The Tribunal Procedure (First-tier Tribunal) ([NAME]) Rules 2013.

The [NAME] 1. The applicant made an [NAME] dated 23 November 2021 for a rent

repayment order alleging an offence having been committed under

section 72 Housing Act 2004 (having management or control of an

HMO). The applicant also asserted a rent repayment order was

sought due to ‘violence for securing entry, eviction threats and

harassment of occupiers.’ This was particularised as concerning

childcare issues involving [COMPANY] and unlawful entry to the flat

and theft of items from the flat. The applicant also asserted there was

an ongoing failure to treat problems with mould particularised as a

failure to comply with an unspecified Improvement Notice. 2. The applicant sought a rent repayment order covering the period

November 2020 to November 2021. Background 3. The subject premises comprise a first floor two-bedroom flat occupied

exclusively by the applicant under an offer of a tenancy by the

landlord local authority dated 27 April 2020. The premises were

subsequently let to the applicant as interim housing under section 188

Housing Act 1996. 4. The premises were let at a rent of £283.50 that was paid in full by way of [NAME] with effect from 1 April 2020 to 8 June 2020

(continuing). 5. A case management conference was held on 17 February 2022 at which

both parties attended and Directions were drawn up. These included a

direction that the tribunal was minded to strike out the [NAME] under rule 9(3)(a) of The Tribunal Procedure (First-tier Tribunal) ([NAME]) Rules 2013. The applicant’s case and submissions 6. In written submissions dated 2 March 2022 the applicant asserted that

as the tribunal had already accepted the [NAME] it should proceed to a full hearing. The applicant denied that the subject flat was not an

3 HMO and asserted that a different procedure applied if a Local Authority

applied for a rent repayment order. The applicant also asserted

that the tribunal is required to hear her [NAME] and cannot dismiss

it and then inform the parties of the decision. The respondent’s submissions 7. In written submissions dated 10 March 2022 the respondent submitted

that the applicant had misunderstood the criteria that has to be met for

a rent repayment order. In this instance, the applicant was and remains

the tenant of the respondent local authority and occupies

accommodation that was provided under section 193 of the Housing Act 1996 and occupies this with exclusive use. Therefore, the subject flat

was not a house in multiple occupation (HMO). The respondent also

submitted that as the whole of the rent was paid by way of [NAME] no rent repayment order could be made for the benefit of the

applicant. 8. The respondent concluded by submitting that the [NAME] could not

progress as the applicant had not identified a landlord who regulates a

HMO. The tribunal’s decision and reasons 9. The tribunal dismisses/strikes out the [NAME] for want of

jurisdiction under rule 9(3)(a) and ( e) of The Tribunal Procedure (First- tier Tribunal) ([NAME]) Rules 2013. 10. The tribunal finds that the subject flat is not occupied as a HMO as it

was exclusively let to the applicant by the respondent. Further the

tribunal finds that the respondent local authority is excluded from being a person from having the management or control of an HMO under

Schedule 14 of the Housing Act 2004. Therefore, no offence could have

been committed under section 72 of the Housing Act 2004. 11. The tribunal finds that no Improvement Notice (unspecified) has been

served by the respondent local authority on itself and that in any event a failure to carry out repairs does not constitute an identified offence

under section 40 of the Housing and Planning Act 2016. 12. In any event, no rent repayment order could made for the benefit of the

applicant, as the whole of the [NAME] paid during the identified

12 months period has to be deducted before any amount can be

awarded to the tenant applicant, under section 44 of the 2016 Act. In

this instance the amount of rent repayment order would be nil.

4 13. In conclusion, the [NAME] is struck out as the applicant under rule

9(2)(a) and (e) of The Tribunal Procedure (First-tier Tribunal) ([NAME]) Rules 20013.

Name: Judge Tagliavini

Date: 8 April 2022

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) ([NAME]) 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 [NAME] for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28-day time limit, such [NAME] 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 [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] for permission to appeal must identify the decision of the tribunal to which it relates (i.e., give the date, the property, and the case number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).