Tenant's Rent Repayment Order Struck Out Due to Timing Issues

OUTCOME: Struck Out

© CROWN COPYRIGHT 2022

FIRST-TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY) Case Reference : LON/00BG/HMF/2021/0165 HMCTS code (paper, video, audio) : V - Video Property : Flat 20, Galveston House, [ADDRESS], London. [POSTCODE] Applicants :

[redacted] (2) Ms [COUNSEL] [NAME] (3) Mrs. [COUNSEL] [NAME] : Mr. [COUNSEL] Respondents : [redacted] (2) City Hive (UK) [COMPANY]. Representative : Mr. [COUNSEL] [NAME] of Leaside Law Solicitors Type of [NAME] : [NAME] for a rent repayment order by tenant Tribunal : Tribunal Judge [NAME] Tribunal Member [NAME]. Date and Venue of Hearing : 10 February 2022 – video hearing Date of Decision : 10 February 2022

DECISION

(1) The Tribunal refuses the [NAME] to remove the [NAME] Applicant (Mrs. [APPELLANT]) from this [NAME]. (2) The Tribunal strikes out the [NAME] pursuant to rule 9(3)(e) of the Tribunal Procedure (First-tier Tribunal) ([NAME]) Rules 2013.

2 (3) The Tribunal directs that any [NAME] for costs by the Respondents shall be made in writing within 28 days of the date of this decision. Any response by the party against whom an order for costs is sought is to be made in writing to the Tribunal within 28 days thereafter with any reply by the Respondent to be made 7 days thereafter. The Tribunal will consider any such [NAME] on the papers alone. If any [NAME] is to be made against [NAME] [NAME] than the Applicants a copy of this decision is to be included with that [NAME] when it is served on them. This has been a remote video hearing which has been consented to by the parties. The form of remote hearing was V: Video Remote. A face-to-face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. The documents that the Tribunal was referred to are set out below, the contents of which were noted. The Tribunal’s determination is set out below. Reasons

The [NAME] 1. The Applicants seek a rent repayment order pursuant to sections 43 and 44 of the Housing and Planning Act 2016 (“the Act”).

The Law 2. The relevant legal provisions are set out in the Appendix to this decision.

3. The Tribunal may make a rent repayment order when a landlord has committed one or more of a number of offences listed in section 40(3) of the Act. An offence is committed under section 72(1) of the Housing Act 2004 (“the 2004 Act”) if [NAME] has [NAME] or management of an HMO which is required to be licensed but is not. By section 61(1) of the 2004 Act every HMO to which Part 2 of that Act applies must be licensed save in prescribed circumstances which do not apply in this case.

4. Section 55 of the 2004 Act explains which HMOs are subject to the terms of Part 2 of that Act. An HMO falls within the scope of Part 2 if it is of a prescribed description or if it is in an area for the time being designated by a local housing authority under section 56 of the 2004 Act as subject to additional licensing and it falls within any description of HMO specified in that designation. This case is concerned with an alleged failure to obtain an additional licence. The relevant designation in this case requires a minimum number of 3 people to be in occupation for the property to require a licence.

5. The Act makes provision about when applications may be made and in respect of what periods orders may be made. Those provisions are crucial in this case.

3 6. Section 44(2) of the Act provides that for offences of the kind alleged in this case an order may be made in respect of a period not exceeding 12 months during which the landlord was committing the offence.

7. Section 41(2) of the Act states as follows; “[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 [NAME] is made.

The Hearing 8. The Applicants and the Respondents both attended the hearing. The Applicants were previously represented by Mr. [NAME] [NAME] of the London Borough of Tower Hamlets, who drafted and submitted the [NAME] on their behalf. He ceased to act for the Applicants in November 2021 following the striking out of the [NAME] because of a failure to pay the required fees and its subsequent re-instatement at the request of the Applicants. They were represented at the hearing by Mr. [NAME], who is not legally qualified. The Respondents were represented by Mr. [COUNSEL] [NAME], a solicitor advocate from Leaside Law.

9. The Tribunal had before it a bundle of documents compiled by Mr. [NAME] on behalf of the Applicants comprising a total of 66 pages. It also had an [NAME] from the Respondents for the [NAME] to be struck out, an [NAME] from them for costs and a skeleton argument to support those applications. References to page numbers are to the numbers appearing at the bottom of the pages of the Appellants’ bundle unless otherwise stated.

10. The issues before the Tribunal were as follows.

The Parties 11. In the statement of case drafted on behalf of the Applicants Mr. [NAME] made an [NAME] under rule 10(1) of the Tribunal Procedure (First-tier Tribunal) ([NAME]) Rules 2013 (“the Rules”) for the [NAME] Applicant to be removed as a party from the [NAME] – see para 1 at page 23. This [NAME] had not yet been determined by the Tribunal. The reason for this [NAME] was that Mr. [APPELLANT] appreciated that any [NAME] by the [NAME] Applicant was bound to fail as it was out of time – about which more will be said later.

12. Given that the [NAME] to remove the [NAME] Applicant had not yet been decided and given that Mr. [APPELLANT] no longer acted for the Applicants the Tribunal sought Mrs. [NAME] representations. She stated that she had not consented to this [NAME] being made and she wished to remain a party.

4 13. The Tribunal accepted the [NAME] Applicant’s representations and refused to direct that she should be removed as a party.

The [NAME] 14. Rule 9(3)(e) of the Rules allows the Tribunal to strike out the whole or part of any proceedings where it; “considers there is no reasonable prospect of the applicant’s proceedings or case, or part of it, succeeding”

15. The Respondents applied for the [NAME] to be struck out under this Rule as, they argued, the [NAME] was doomed to fail. Their argument was as follows.

16. The only basis for the [NAME] was an allegation that the Respondents were in [NAME] of or [NAME] an unlicensed HMO and therefore they were committing an offence under section 72(1) of the 2004 Act. The need for a licence arose from a designation by the London Borough of Tower Hamlets which required all properties with 3 or more people living in 2 or more households to be licensed. It followed that this offence could only be committed at a time when at least 3 people were in occupation.

17. Whilst the evidence submitted on behalf of the Applicants showed that such an offence may have been committed in 2019 and early 2020, it also clearly stated that the [NAME] Applicant left the property on 30 June 2020 – see page 58. It followed that from that date onwards there were only two people in occupation and so no offence could have been being committed under section 72(1) from that day onwards.

18. There was no doubt that the [NAME] was made no earlier than 14 July 2021, which was the date on the [NAME] form itself (see page 8 of the [NAME]). It followed, they argued, that the [NAME] did not comply with the requirements of section 41(2)(b) of the Act as it was made more than 12 months after any offence was being committed. It followed, therefore, that the [NAME] was bound to fail.

19. The Applicants accepted that the [NAME] Applicant had indeed left the property on 30 June 2020 and that the [NAME] was not submitted to the Tribunal until at least 14 July 2021. They accepted that on 14 July 2020 there were only two people in occupation. Although they suggested that some [NAME] people had moved into the property in September 2020, they accepted that there was no mention of this in the [NAME] and nor was there any evidence before the Tribunal to show this.

20. The Tribunal granted the [NAME] to strike the [NAME] out. It was satisfied that the alleged offence was no longer being committed after 30 June 2020 and that the [NAME] was made more than 12 months after that date and so the requirements of section 41(2) of the Act were not met and the [NAME] was doomed to fail.

5 21. It was obvious to the Tribunal that Mr. [NAME] was aware of this problem as it was for this reason that he asked for the [NAME] Applicant to be removed as a party. It should have been obvious to him at the stage that he wrote his submissions, if not earlier, that the case of the [NAME] was equally tenuous. The only options open to the remaining Applicants were to either discontinue the [NAME] or to amend it and provide evidence of occupation by others at a later date which may have kept the [NAME] alive. However, he did neither.

22. No [NAME] grounds were pleaded in the [NAME] and there was no [NAME] to amend the [NAME]. The Tribunal considered that, in any event, it would not be appropriate to do so in such a way as to include a new allegation in respect of a period of time more than 12 months before such an [NAME] was made – ie for a period any earlier than 10 February 2021 – as to do so would, in effect, side-step the requirements of section 41(2)(b) of the Act. The last of the Applicants left the property on 13 October 2020, which was more than 12 months prior to the date of the hearing.

23. The [NAME] was, therefore, granted and the substantive [NAME] was struck out.

Costs 24. Although there was a costs [NAME] before the Tribunal, it decided that it would be more appropriate for it to receive a detailed written [NAME] which gave full consideration to, among [NAME] things, the appropriate respondent to such an [NAME] given the history of the proceedings and the Tribunal’s conclusions above. It directed that such an [NAME] should be made within 28 days of the date of this decision, with any respondent to such an [NAME] being granted 28 days in which to respond, with a further reply being permitted within 7 days thereafter.

25. The Tribunal also directed that if an [NAME] for costs were to be made against [NAME] [NAME] than any of the Applicants, a copy of this decision should be included when such an [NAME] is served.

Name: Tribunal Judge [NAME]: 10 February 2022

6 ANNEX - RIGHTS OF APPEAL

• The Tribunal is required to set out rights of appeal against its decisions by virtue of the rule 36 (2)(c) of the Tribunal Procedure (First-tier Tribunal)([NAME]) Rules 2013 and these are set out below.

• If a party wishes to appeal against 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.

Appendix of relevant legislation

Housing Act 2004

Section 72 Offences in relation to licensing of HMOs (1) [NAME] commits an offence if he is a [NAME] of or [NAME] an HMO which is required to be licensed under this Part (see section 61(1)) but is not so licensed. (2) [NAME] commits an offence if– (a) he is a [NAME] of or [NAME] an HMO which is licensed under this Part, (b) he knowingly permits [NAME] to occupy the house, and (c) the [NAME] person's occupation results in the house being occupied by more households or persons than is authorised by the licence. (3) [NAME] commits an offence if– (a) he is a licence holder or [NAME] 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.

7 (4) In proceedings against [NAME] 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 [NAME] for a licence had been duly made in respect of the house under section 63, and that notification or [NAME] was still effective (see subsection (8)). (5) In proceedings against [NAME] for an offence under subsection (1), (2) or (3) it is a defence that he had a reasonable excuse– (a) for [NAME] [NAME] of or [NAME] 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) [NAME] who commits an offence under subsection (1) or (2) is liable on summary conviction to a fine. (7) [NAME] 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 [NAME] 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. (1) For the purposes of subsection (4) a notification or [NAME] 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 [NAME], or (b) if they have decided not to do so, one of the conditions set out in subsection (9) is met. (2) 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. (3) 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). 263 Meaning of “[NAME]” and “[NAME]” etc. (1) In this Act “[NAME]”, in relation to 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 [NAME]), or who would so receive it if the premises were let at a rack-rent.

8 (2) In subsection (1) “rack-rent” means a rent which is not less than two-thirds of the full net annual value of the premises. (3) In this Act “[NAME]” 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 [NAME] 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; and (ii) in the case of a house to which Part 3 applies (see section 79(2)), persons who are in occupation as tenants or licensees of parts of the premises, or of the whole of the premises; or (b) would so receive those rents or [NAME] payments but for [NAME] entered into an arrangement (whether in pursuance of a court order or otherwise) with [NAME] who is not an owner or lessee of the premises by virtue of which [NAME] receives the rents or [NAME] payments; and includes, where those rents or [NAME] payments are received through [NAME] as agent or trustee, [NAME]. (4) In its [NAME] to Part 1, subsection (3) has effect with the omission of paragraph (a)(ii). (5) References in this Act to any person involved in the management of a house in multiple occupation or a house to which Part 3 applies (see section 79(2)) include references to the [NAME] it.

Housing and Planning Act 2016 Chapter 4 RENT REPAYMENT ORDERS Section 40 Introduction and key definitions (1) This Chapter confers power on the First-tier Tribunal to make a rent repayment order where a landlord has committed an offence to which this Chapter applies. (2) A rent repayment order is an order requiring the landlord under a tenancy of housing in England to— (a) repay an amount of rent paid by [NAME], 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 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

9 4

section 32(1) failure to comply with prohibition order etc 5

section 72(1)

[NAME] or management of unlicensed HMO 6

section 95(1)

[NAME] 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). Section 41 [NAME] for rent repayment order (1) [NAME] or a local housing authority may apply to the First-tier Tribunal for a rent repayment order against [NAME] 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 [NAME] is made. (3) A local housing authority may apply for a rent repayment order only if— (a) the offence relates to housing in the authority's area, and (b) the authority has complied with section 42. (4) In deciding whether to apply for a rent repayment order a local housing authority must have regard to any guidance given by the Secretary of State. Section 43 [NAME] of 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 has been convicted). (2) A rent repayment order under this section may be made only on an [NAME] 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 [NAME] is made by [NAME]); (b) section 45 (where the [NAME] is made by a local housing authority); (c) section 46 (in certain cases where the landlord has been convicted etc). Section 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.

10 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. Section 52 Interpretation of Chapter (1) In this Chapter— “offence to which this Chapter applies” has the meaning given by section 40; “relevant award of universal credit” means an award of universal credit the calculation of which included an amount under section 11 of the Welfare Reform Act 2012; “rent” includes any payment in respect of which an amount under section 11 of the Welfare Reform Act 2012 may be included in the calculation of an award of universal credit; “rent repayment order” has the meaning given by section 40. (2) For the purposes of this Chapter an amount that [NAME] does not pay as rent but which is offset against rent is to be treated as [NAME] been paid as rent.