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

OUTCOME: Dismissed

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FIRST-TIER TRIBUNAL [NAME] CHAMBER ([NAME]) Case Reference : LON/00BA/HMB/2024/0602 [NAME] : [ADDRESS], [POSTCODE] Applicant: [redacted] Respondent : [redacted] : [NAME] [COUNSEL] (counsel) Type of Application :

Application for Rent Repayment Order under the Housing and Planning Act 2016 Tribunal Members :

Tribunal Judge H [NAME] S Wheeler MCIEH CEnvH Venue : 10 [ADDRESS] [POSTCODE] Date of Hearing :

26th September 2025

Date of Decision : 27th October 2025

DECISION

2

Decision of the tribunal

The Applicant’s application for a rent repayment order is dismissed.

Introduction 1. The Applicant has applied for a rent repayment order against the Respondent under sections 40-44 of the Housing and Planning Act 2016 (“the 2016 Act”). The application was received on 30th September 2024.

2. The basis for the application is that the Respondent committed an offence of harassment and unlawful eviction pursuant to s. 1 of the Protection from Eviction Act 1977 (“the 1977 Act”). In addition, the Applicant’s statement of case suggests a further allegation that the Respondent was controlling and/or managing an unlicensed HMO which was required to be licenced under Part 2 of the Housing Act 2004 (“the 2004 Act”) at a time when it was let to the Applicant but was not so licensed and that they were therefore committing an offence under section 72(1) of the 2004 Act.

3. The Applicant’s claim is for repayment of rent paid during the period from 3 October 2022 to 2 October 2023, amounting to £7,800.

4. The [NAME] is located on the second floor of a disused industrial unit. It was converted into sixteen bedrooms together with communal kitchen and bathroom facilities. The [NAME] comprised one of these bedrooms and was let to the Applicant from 15 October 2021.

5. The residential floor was let to the Respondent from October 2015, in return for a monthly rent, the Respondent letting out the rooms to residential occupiers. It had the benefit of an HMO licence from 12 January 2018 until 11 January 2023. The Respondent had believed that the floor had planning permission for residential use but this was incorrect. Following enforcement action, the superior landlord applied unsuccessfully for residential consent. This led to the Respondent serving notice to determine its lease, which terminated on 15 August 2022. Its lease required to give vacant possession of the floor let to it, and so action was taken to remove all occupiers; these had all left when the Respondent’s lease terminated, with the exception of the Applicant. The Respondent took proceedings to evict the Applicant, finally obtaining an order that possession would be taken on 3 October 2023. The Applicant left the day before, on 2 October 2023. The Respondent was obliged to continue to pay rent to the superior landlord until the Applicant left.

6. Following the vacation of the other tenants, the superior landlord carried out extensive works to the building, including removing the other rooms

3 and some communal facilities. The works had actually begun prior to 15 August 2022.

7. The tribunal was provided with a bundle by the Applicant running to 236 pages, a further bundle by the Respondent consisting of 329 pages, together with a skeleton argument and authorities bundle from the Respondent. An audio recording and a skeleton argument were also received from the Applicant on the date of the hearing. The contents of all these documents were noted by the tribunal.

8. The hearing was held in person. The Applicant appeared in person and gave evidence as well as making submissions. [NAME] [COUNSEL] appeared for the Respondent. Ms [COUNSEL] [NAME] and [NAME] [RESPONDENT] [NAME] gave evidence for the Respondent; they are both directors of the Respondent.

9. Section 41 of the 2016 Act provides that [NAME] may only apply for a rent repayment order if (a) the premises were let to the tenant when a relevant offence was committed and (b) that offence was committed in the 12 months preceding when the application was made. The Applicant left the [NAME] on 2 October 2023 so that is the latest date on which an offence can be relied on. The application in this case was received on 30 September 2024 so the offence must have occurred in the previous 12 months ending on that date, i.e. in the period from 1 October 2023 onwards.

Accordingly, this means that the Applicant has to demonstrate beyond all reasonable doubt that an offence was committed on 1 and/or 2 October 2023.

10. The tribunal considered that it should establish as a preliminary issue whether it was satisfied beyond all reasonable doubt that a relevant offence was committed on either of those dates. If the tribunal concluded that it was not satisfied that an offence had occurred on either dates, the Applicant’s application must fail. It was agreed by the parties that evidence would only be heard and submissions made on this issue, following which the tribunal would consider that issue alone. Other evidence would only be heard if the tribunal was satisfied that an offence had been committed on either of the two dates. Relevant statutory provisions 11. The relevant statutory provisions are set out in the Schedule to this decision. [NAME]

4 12. The Applicant argues that the [NAME] was an unlicenced HMO on the basis that it was rented to three or more people who form more than one household during the relevant period (here being 1st and 2nd October 2023).The HMO licence had expired on 11 January 2023 and she argued that continued occupancy therefore amounted to an offence. In evidence she agreed that the other occupiers had moved out in around September 2022, leaving just her in occupation. She contended that after that some workmen had slept in the building, using one of the 16 rooms. She could not provide precise dates or numbers of occupiers but thought they were there for two to three months in Autumn 2022; she also suggested this might have been as late as March 2023.

13. The Respondent denies that anyone other than the Applicant was in occupation beyond September 2022. Ms [APPELLANT] in evidence said that the other 15 rooms were removed between September and November 2022 and it was not possible for anyone to have occupied these once cleared.

14. The tribunal considered this evidence. As referred to above, it was necessary for the Applicant to demonstrate that there were others in occupation of the space let to the Respondent on 1st and/or 2nd October 2023. It accepts that the other rooms were removed by the end of 2022 and so these cannot have been occupied in October 2023. The only evidence from 2023 is in March and there is not sufficient to show occupation of the Respondent’s space then. Occupation in other parts of the building is not relevant in any event as this was not managed or controlled by the Respondent. There is no evidence to support any occupation of the space let to the Respondent except the Applicant from April 2023, including in October 2023. It therefore finds that only the Applicant was in occupation of the relevant space on 1st and 2nd October 2023.

15. As the tribunal has concluded that there was only one occupier of the space managed or controlled by the Respondent on 1st and 2nd October 2023, no HMO licence was required by the Respondent. As a result, it cannot have committed the offence of controlling and/or managing an unlicensed HMO which was required to be licenced pursuant to section 72(1) of the 2004 Act on those dates. This means that the Applicant is not entitled to apply for a rent repayment order on this basis. Harassment and unlawful eviction 16. The Applicant has referred in her application and evidence to numerous acts by the Respondent which she says amounted to offences of harassment and unlawful eviction. She says that these were designed to drive her out of the [NAME]. Most of these acts were carried out by the superior landlord in carrying out its works but the Applicant says that the Respondent failed to protect her from the impact of these and otherwise failed to take steps to allow her continued occupation. The

5 incidents referred to all occurred prior to 1st October 2023 and she accepted that no incidents occurred from 30 September 2023. However, acts of omission can be harassment as much as positive acts, so for example not engaging with the superior landlord to ensure the Applicant's protection might amount to harassment. These could be continuing acts that continue beyond an actual event, so it is possible that an offence was continuing at the relevant date.

17. The continuing events the Applicant refers to are as follows: (i) Pigeon infestation, raised on 16 October 2022 and followed up through November 2022, raised again on 7 March 2023, the Applicant says the issue was never addressed; (ii) Water temperature beyond the legal threshold to prevent legionella, raised on 31 October 2022 and followed up through November 2022, raised again on 5 January 2023, the Applicant says no lasting resolution was provided; (iii) No heating in her room or the communal areas from 5 January 2023; (iv) No use of her shower from 5 January 2023; (v) No hot water from 4 January 2023; (vi) No kitchen/loss of cooking from 4 March 2023; (vii) Removal of windows in kitchen on 4 March 2023; (viii) Electricity disconnected from 15 May 2023; (ix) No access to washing machine from 13 July 2023.

18. The other instances referred to by the Applicant were all one off events which all occurred well before September 2023 and cannot have been continuing on 1 or 2 October 2023. The tribunal has therefore not analysed these in detail.

19. The continuing acts were all carried out by the superior landlord. However, the Applicant says the Respondent’s actions in failing to address them were designed to drive her out of the [NAME] and so were acts of harassment in breach of sections 1(2), 1(3) and 1(3A) of the 1977 Act.

6 20. The Respondent denies that they committed any acts of harassment or was seeking through them to drive the Applicant out of the [NAME]. They point to the actions they took through the courts to obtain possession. They contend that the Applicant was seeking to extract a £50,000 payment from them in return for her departure and the complaints she made was simply to enhance her case and increase pressure on them.

21. The Respondent specifically denies not taking action to address the issues raised. On the continuing acts referred to in paragraph 17, they contend as follows: (i) Pigeon infestation – they say this was addressed by the superior landlord by preventing further access; they also point to there being no evidence of pigeons in the building after March 2023; (ii) Water temperature beyond the legal threshold to prevent legionella – the Respondent has provided evidence that this was tested in November 2022 and maintains that hot water was available at all times; (iii) No heating in her room or the communal areas from 5 January 2023 – the Respondent contends that a plumber attended whenever the Applicant raised a complaint about the heating and says it was always found to be working; (iv) No use of her shower from 5 January 2023 – the Respondent says a plumber attended following her report on 5 January 2023 and has provided evidence that the shower was working; (v) No hot water from 4 January 2023 – see (ii) above; (vi) No kitchen/loss of cooking from 4 March 2023 – the Respondent says that whilst one communal kitchen was taken out of commission (and its windows removed, as referred to in (vii) below), she was provided with a fully functioning alternative; (vii) Removal of windows in kitchen on 4 March 2023 – this is the same as (vi) above, an alternative kitchen was provided; (viii) Electricity disconnected from 15 May 2023 – the Respondent accepts that the Applicant’s supply was

7 changed to a temporary supply but contends that there was no interruption to her supply; (ix) No access to washing machine from 13 July 2023 – the Respondent says that a washing machine was available in the alternative kitchen made available for her use.

22. The Applicant has also referred to an incident on 31 July 2023, when she said that [NAME] [RESPONDENT] of the Respondent forced entry into the [NAME] when she was absent. It is accepted by the Applicant that this was a one off rather than a continuing act. The Respondent denies forcing entry. [NAME] [RESPONDENT] in evidence said that the door was open and he visited to see whether she was still in occupation; he explained that the visit was prompted by the Applicant stopping paying her rent. He accepted that he had not attempted to contact the Applicant before visiting.

23. The tribunal considered this evidence. It began by considering whether any of the contended continuing acts were ongoing as at 1 October 2023. Dealing with these in turn: (i) Pigeon infestation there is no evidence to support the contention this was ongoing post March 2023. The tribunal determines this was not continuing on 1 or 2 October 2023; (ii) Water temperature beyond the legal threshold to prevent legionella – the tribunal accepts the Respondent’s evidence that the hot water was tested in November 2022 and January 2023 and found to be sufficient. There is no evidence to support the Applicant’s position that the Respondent did not take steps to address her complaints or that there was no hot water. The tribunal determines that no relevant act or omission was continuing on 1 or 2 October; (iii) No heating in her room or the communal areas from 5 January 2023 – the parties take diametrically opposing positions, the Respondent arguing that they always procured a plumber to inspect the heating and it was always found to be working. However, the tribunal considers there is insufficient evidence to support this. Taking the evidence as a whole and taking into account there is no evidence that the heating was not working in October 2023, it concludes on the balance of probabilities that there was no relevant continuing act or omission on 1 or 2 October 2023;

8 (iv) No use of her shower from 5 January 2023 – the tribunal accepts the Respondent’s evidence that this was working following the report on 5 January 2023. There is no evidence to support it not subsequently working. As a result, the tribunal determines that there was no relevant continuing act or omission on 1 or 2 October 2023; (v) No hot water from 4 January 2023 – this is the same as (ii) and the tribunal makes a similar determination of no ongoing act or omission on 1 or 2 October 2023; (vi) No kitchen/loss of cooking from 4 March 2023 – the tribunal considered (vi) and (vii) together. It accepts that an alternative kitchen was provided. As a result, the tribunal determines on the balance of probabilities that there was no relevant continuing act or omission on 1 or 2 October 2023; (vii) Removal of windows in kitchen on 4 March 2023 – as per (vi) above; (viii) Electricity disconnected from 15 May 2023 – the tribunal accepts that there was a change in the supply conduits. It cannot assess from the evidence provided whether the new supply was adequate or safe. However, given that there is no evidence to suggest it was unsafe or inadequate, it determines on the balance of probabilities that there was a sufficient supply to the [NAME] on 1 and 2 October 2023 and so no continuing act or omission at that date; (ix) No access to washing machine from 13 July 2023 – the tribunal finds that another washing machine was made available in the second kitchen and so determines on the balance of probabilities that there was no relevant continuing act or omission on 1 or 2 October 2023.

24. The Applicant argues that the Respondent did not take sufficient steps to address her concerns when raised. The Respondent has countered this by saying that her complaints were misfounded or addressed and there were no ongoing issues on 1 and 2 October 2023. Having considered the issues, the tribunal has found on balance that there were indeed no issues that could form the basis of a claim under sections 1(2), 1(3) or 1(3A) of the 1977 Act on those dates. As a result, the tribunal cannot find beyond all reasonable doubt that one or more of these offences was committed. The Applicant’s application for a rent repayment order must therefore be dismissed.

9 25. However, in case it is incorrect in those conclusions, it has also considered whether the Respondent took sufficient steps to address the Applicant’s issues.

26. This was specifically addressed by Ms [RESPONDENT] of the Respondent in her evidence. She lists in her witness statements the employment of plumbers to address the Applicants’ issues, especially in the first half of 2023. These issues seemed to have ceased after July 2023 and there is no evidence from then of any failure by the Respondent to address complaints. In answers to questions put to her in cross-examination, Ms [NAME] accepted that she had not visited the [NAME] often in response to complaints, saying she had visited in August 2022 when the other occupiers were vacating, in November 2022, in March 2023 and in July 2023 (when the alternative kitchen was provided). She instead said she had relied on confirmations received from the superior landlord or contractors. She felt that all the issues were addressed. She denied that the Respondent was using the works to force the Applicant out, relying instead on the legal process they were pursuing through the courts. 27. [NAME] [RESPONDENT] of the Respondent also answered questions on this issue. He said that, other than the visit in July 2023, had not visited the [NAME] as he had not needed to. The tribunal concluded that his sole reason for visiting on that occasion was to check whether the Respondent could stop paying rent to the superior landlord on the basis that the Applicant had vacated.

28. The tribunal considered the evidence and the submissions made by the parties. It was evident from both [NAME] [NAME] and Ms [NAME] answers and from the correspondence that they wanted the Applicant to leave. This might be sufficient to infer that any act or omission by the Respondent was motivated at least in part by that desire.

29. The tribunal also considers that there are concerns about the Respondent’s approach in dealing with the Applicant’s complaints and that more first-hand evidence from more site visits would have been preferable, for example to check that the alternative facilities were available and sufficient and that the replacement electricity supply was safe.

30. However, it is clear that steps were taken to address the issues and there is no evidence to suggest that there were continuing omissions to address the complaints in September or October 2023. There are also doubts as to their motivation. The tribunal therefore determined that it had reasonable doubts as to whether the Respondent had not taken sufficient steps to address the Applicant’s issues and whether there were outstanding steps in September or October 2023. As a result, the tribunal cannot be satisfied beyond all reasonable doubt that the Respondent was committing an offence under sections 1(2), 1(3) or 1(3A) of the 1977 Act on 1 or 2 October 2023.

10 31. It therefore cannot make a determination that the Respondent was committing an offence under sections 1(2), 1(3) or 1(3A) of the 1977 Act on 1 or 2 October 2023. As a result, the Applicant cannot apply for a rent repayment order on that basis. Tribunal determination 32. The tribunal determines that it is not satisfied beyond all reasonable doubt that the Respondent has committed an offence entitling the Applicant to apply for a rent repayment order.

33. The Applicant’s application for a rent repayment order is therefore dismissed. Name: Judge H Lumby Date: 27 October 2025

11

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) ([NAME] 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] 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).

12 SCHEDULE Relevant statutory provisions Housing and Planning Act 2016 Section 40 (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] ... (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 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

13 6

section 95(1) control or management of unlicensed house 7 Housing and Planning Act 2016 section 21 breach of banning order

Section 41 (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. Section 43 (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 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]) ... Section 44 (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.

14 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 – (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. Housing Act 2004 Section 72 (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 … but is not so licensed. (4) In proceedings against a person for an offence under subsection (1) … it is a defence that he had a reasonable excuse … for having control of or managing the house in the circumstances mentioned in subsection (1) … . Section 263 (1) In this Act “person having control”, in relation to the premises, means (unless the context otherwise requires) the person who receives the rack rent of the premises (whether on his own account or as agent or trustee of another person), or who would so receive it if the premises were let at a rack rent.

15 (3) In this Act “person managing” means, in relation to premises, the person who, being an owner or lessee of the premises –

(a) receives (whether directly or through an agent or trustee) rents or other payments from –

(i) in the case of a house in multiple occupation, persons who are in occupation as tenants or licensees of parts of the premises …

(b) would so receive those rents or other payments but for having entered into an arrangement (whether in pursuance of a court order or otherwise) with another person who is not an owner or lessee of the premises by virtue of which that other person receives the rents or other payments Protection from Eviction Act 1977 Section 1 (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, 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,

16 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.