Tenant's Request for Rent Repayment Order Denied by First-tier Tribunal

OUTCOME: Dismissed

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FIRST-TIER TRIBUNAL [NAME] CHAMBER ([NAME]) Case Reference : LON/00BG/HMH/2024/0001 [NAME] : [ADDRESS] [POSTCODE] Applicant : [redacted] as [COUNSEL]) Representative : Not represented Respondents :

[redacted] [COMPANY] (2)

Representative : Not present at hearing and not represented Type of Application :

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

Judge P [NAME] of Hearing :

28 April 2025

Date of Decision : 9 May 2025

DECISION

Description of hearing

This was a face-to-face hearing.

2 Decisions of the tribunal

The tribunal makes no rent repayment order.

Introduction 1. The Applicant has applied for a rent repayment order against [APPELLANT] [NAME] (“the First Respondent”) and against [RESPONDENT] (“the [NAME] Respondent”) under sections 40-44 of the Housing and Planning Act 2016 (“the 2016 Act”).

2. The bases for the application are that: • the First Respondent used or threatened violence for the purpose of securing entry into the [NAME] contrary to section 6(1) of the Criminal Law Act 1977; and • the First Respondent harassed the residential occupiers of the [NAME] contrary to section 1(2), (3) and/or (3A) of the Protection from Eviction Act 1977.

3. The Applicant seeks a rent repayment order in the sum of £13,592.00 in respect of rent paid. Applicant’s written case 4. The Applicant states that on 7 July 2023 the First Respondent, accompanied by an unknown male, attempted to force entry into the [NAME] through a ground-floor window and that they were seen attempting to prise open the window despite being aware the [NAME] was occupied. Upon being confronted, they resorted to shouting and intimidation. The First Respondent verbally claimed ownership, while the male confirmed that the person claiming ownership was the First Respondent. When the police were contacted, the two of them immediately fled the scene. He adds that under section 6(1) of the Criminal Law Act 1977 it is a criminal offence for any person to use or threaten violence to secure entry into premises if there is someone inside who is opposed to their entry.

5. The Applicant adds that during the week of 3 – 9 July 2023 there were multiple incidents of loud and aggressive banging on the ground-floor window and main door throughout the week. Finally on 9 July 2023, the First Respondent escalated matters by threatening to enter the [NAME] using her own set of keys, falsely claiming police approval despite the Applicant’s refusal to allow her entry. He adds that under section 1(3) of the Protection from Eviction Act 1977 harassment includes acts likely to interfere with the peace and comfort of an

3 occupier carried out with the intention of causing them to leave and that section 1(2) makes it an offence to unlawfully deprive a tenant of occupation through force, threats, or intimidation. He states that the repeated harassment and threats made the [NAME] unliveable, ultimately forcing him to surrender the tenancy out of fear for his safety.

6. In addition, the Applicant states that following the attempted break-in on 7 July 2023 the [NAME] Respondent suddenly withdrew its management services without notice or explanation, leaving the Applicant to deal directly with the First Respondent who had harassed him.

7. In relation to the First Respondent’s conduct and character generally and the condition of the [NAME], the Applicant has made a couple of points. He states that on 6 January he met [NAME], who informed him that he had been ‘scammed’ by the First Respondent when she falsely promised to rent him a single bedroom and did not return his deposit, which he submits demonstrates a pattern of dishonesty. There is a witness statement on this incident in the hearing bundle. He also states that there were repeated bailiff visits throughout the tenancy, with [NAME] asking to speak to the First Respondent due to her outstanding debts.

8. In relation to the condition of the [NAME], he states that upon collecting the keys he found the [NAME] to be in severe disrepair and unclean. Issues included a breached ground-floor window creating a security risk, previous tenants’ belongings being left behind despite multiple requests for their removal, delays in essential repairs and difficulty in communicating with the First Respondent. Since moving into the [NAME], he developed recurring infections and flu-like symptoms, and on investigation he discovered that the mattress provided was filthy and stained with what appeared to be blood, covered by a mattress topper to conceal its condition.

9. There were also important missing documents. Despite multiple requests, he never received an inventory report, and the Electrical Installation Condition Report (“EICR”) and the Energy Performance Certificate were provided two months late. He also believes the EICR to have been fraudulent as the electrician who visited the [NAME] said that the [NAME] could not have passed the necessary checks. Respondents’ written case 10. Neither of the Respondents has made any written submissions.

4 The hearing 11. Neither of the Respondents was present or represented at the hearing.

12. At the start of the hearing, the tribunal clarified certain points with the Applicant. He was asked whether he was still claiming against both the First Respondent and the [NAME] Respondent, given that the [NAME] Respondent did not appear to be a “landlord” for the purposes of Chapter 4 of the 2016 Act, and in response he conceded that he was no longer claiming against the [NAME] Respondent.

13. In response to questions about the period of claim, the Applicant said that the £13,592 represented rent for the period 12 December 2022 to 14 July 2023 (although including a holding deposit of £438.46).

14. The tribunal also noted that the tenancy agreement was in the name of his mother ([NAME] [NAME] [NAME]), not in his own name, and therefore that he might not be a “tenant” for the purposes of Chapter 4 of the 2016 Act. He said that the actual occupiers of the [NAME] were himself and his then girlfriend (who later became his wife). His mother was not in occupation. His understanding was that he was entitled to occupy as the [NAME] could be occupied by the tenant and the tenant’s “[NAME]” (clause 2.8.1 of the tenancy agreement). He conceded that no permission had been obtained for his then girlfriend to share occupation. He submitted that despite his mother being the named tenant he was nevertheless himself a “tenant”, and he referred the tribunal to advice that he had received from the charity ‘[NAME]’, summarised by him on page 35 of the hearing bundle, namely that the tenancy agreement might be a sham agreement because “a sham agreement is a contract that claims to give the parties different rights from the ones they have in law. Sham agreements are often used by private landlords to attempt to avoid legislation such as the Housing Act, which creates protections and obligations for tenants and landlords. The reality of the occupier's situation determines whether they are a tenant or a licensee, not the description on the agreement”.

15. In relation to the question of whether the First Respondent was a “landlord” for the purposes of Chapter 4 of the 2016 Act, the tribunal noted that the Applicant had not provided proof of her title to the [NAME] but it also noted that she was named as landlord in the tenancy agreement.

16. In relation to the Applicant’s interactions with the First Respondent during early July 2023, the Applicant knew that she was the First Respondent because she showed him her passport. He also said that, according to her version of events when the police were present, the [NAME] Respondent had only passed on to her a small proportion of the rent. In the presence of the police, she told him that she wanted him to sign a fresh tenancy and to pay her the rent direct. The Applicant

5 added that later on the First Respondent sent him an eviction notice and therefore despite what she said in front of the police she did not in fact want him to stay.

17. Also at the hearing the Applicant played recordings of two telephone calls that he had made to the police in connection with the incidents in July 2023, and he also referred the tribunal to the photographs in the hearing bundle relating to the condition of the [NAME].

18. As regards his own conduct, the Applicant said that he had generally behaved well but admitted that he had withheld two months’ rent between July and September 2024 in protest at the problems that he had been experiencing at the [NAME]. Regarding the First Respondent’s financial circumstances, the frequent presence of [NAME] suggested to him that her financial circumstances were very poor. Relevant statutory provisions 19. 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 a tenant ... (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

6 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

Section 41 (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. 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 a tenant) ...

7 Section 44 (1) Where the First-tier Tribunal decides to make a rent repayment order under section 43 in favour of a [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 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. 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.

8 (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 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 … shall be guilty of an offence if – (a) he does acts likely to interfere with the peace or comfort of the residential occupier … , or (b) he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence, and … 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.

Criminal Law Act 1977

Section 6(1)

Subject to the following provisions of this section [not relevant here] any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any premises for himself or for any other person is guilty of an offence, provided that - (a) there is someone present on those premises at the time who is opposed to the entry which the violence is intended to secure; and (b) the person using or threatening the violence knows that this is the case.

Tribunal’s analysis Basis for a rent repayment order 20. Section 40(1) of the 2016 Act confers power on the tribunal to make a rent repayment order where a landlord has committed one or more of the offences listed in the table in section 40(3). The Applicant claims that the First Respondent has committed one or more offences under section 1(2), (3) and/or (3A) of the Protection from Eviction Act 1977 and section 6(1) of the Criminal Law Act 1977, and we are satisfied that any breach of any of these statutory provisions would be an offence listed in that table.

9 Whether the First Respondent was a “landlord” 21. For the purposes of Chapter 4 of the 2016 Act, we need to be satisfied that the First Respondent was a “landlord”. The Applicant has not provided documentary evidence of the First Respondent’s title to the [NAME], but he has provided a copy of a tenancy agreement which states that the First Respondent is the landlord (i.e. the tenant’s direct landlord) and which appears to have been signed by her, and the First Respondent has not denied that she is the landlord. On the basis of the evidence before us, we are satisfied that the First Respondent was a “landlord” for the purposes of Chapter 4 of the 2016 Act. Whether the Applicant was a “tenant” 22. For the purposes of Chapter 4 of the 2016 Act, we also need to be satisfied that the Applicant was a “tenant”. As noted above, the named tenant in the tenancy agreement was [NAME] [APPELLANT] [NAME], who we understand from the Applicant to be his mother and the First Respondent has not disputed this. The Applicant was entitled to occupy the [NAME] as a member of the tenant’s “[NAME]” pursuant to clause 2.8.1 of the tenancy agreement, albeit that the wording of the tenancy agreement assumed (in our view) that the tenant would herself be in occupation, either with or without [NAME] members. However, we accept on the basis of the information and arguments before us that the Applicant was entitled to occupy the [NAME] even in the absence of his mother. Nevertheless, the Applicant needs for the purposes of Chapter 4 of the 2016 Act to establish more than a mere right to occupy; he needs to establish that he was a “tenant”.

23. The word “tenant” is not defined anywhere in the 2016 Act, possibly because the meaning was regarded as obvious or possibly because any definition might have appeared circular or possibly for some other reason. However, when one compares the rent repayment order provisions in the 2016 Act with those that it replaced in the Housing Act 2004 (“the 2004 Act”), it is noteworthy that the 2004 Act refers not to the right of a “tenant” to make a claim but instead (in section 73) to the right of an “occupier of a part of the HMO” to make a claim. It would seem to follow that Parliament made a deliberate decision when passing the 2016 Act to move away from the principle that rent repayment orders could be made in favour of mere occupiers of [NAME] and instead to restrict the availability of rent repayment orders to those occupiers who were “tenants”.

24. Where there is no tenancy agreement, the question of whether an occupier is a tenant can be complicated and/or can be very fact sensitive. However, in this case there is a written and signed tenancy agreement, and the person named as the tenant is [NAME] [APPELLANT] [NAME] who is the Applicant’s mother. The Applicant himself is entitled to occupy

10 but he is not named as tenant and on the face of it there would be no reason to conclude that he was a “tenant”. The tenancy agreement has a definition of “Tenant” which is “anyone entitled to possession of the Premises under this Agreement”, but in our view the Applicant is not entitled to “possession” – he is merely entitled to occupation. “Possession” belongs to the one who has control of possession, and that has to be the named tenant, with any family members occupying with her permission.

25. The Applicant has quoted some advice from the charity ‘[NAME]’ and has suggested that the tenancy agreement might be a sham agreement and that as a consequence it is really he who is the tenant. We do not accept this. The reason why some agreements are treated in law as sham agreements is that they are designed to distort the reality in order to achieve some advantage. For example, the parties might want to pretend that the contractual relationship is different from the reality in order to secure a tax advantage. However, in the present case there is no proper basis for concluding that the naming of the Applicant’s mother as the tenant was for any other reason than that she was actually intended to be the tenant. No possible motive for the First Respondent or [NAME] Respondent to pretend that his mother was the tenant whilst all along intending him to be the tenant has been evidenced or even argued. There is also no evidence of the tenancy having been assigned to him or having been varied so as to make him the tenant, and the Applicant has failed to demonstrate in any other way that he was the tenant.

26. Therefore, our conclusion is that the Applicant was not the tenant under the tenancy agreement relating to the [NAME] and that the tribunal does not have the power to make a rent repayment order in his favour. The alleged offences 27. Although we have already concluded that the tribunal does not have the power to make a rent repayment order in the Applicant’s favour, we will also comment briefly on the alleged offences themselves.

28. In relation to section 6(1) of the Criminal Law Act 1977, to be satisfied that an offence has been committed we need (amongst other things) to be persuaded beyond reasonable doubt that the First Respondent used or threatened violence for the purpose of securing entry into the [NAME]. However, there is no evidence before us that the First Respondent – or anyone on her behalf – either used or threatened violence. The Applicant’s own evidence is that the First Respondent attempted to force entry and shouted at him. He does also refer to intimidation, but he does not allege that violence was actually used and we are not persuaded beyond reasonable doubt, simply by virtue of the

11 Applicant’s reference to intimidation, that the First Respondent threatened violence either.

29. In relation to section 1(2), 1(3) or 1(3A) of the Protection from Eviction Act 1977 (“the [NAME]”), we accept on the basis of the Applicant’s uncontested evidence that the First Respondent shouted and tried to gain entry on to the [NAME]. However, section 1(2) of the [NAME] is not engaged because this only applies where “a person unlawfully deprives the residential occupier of any premises of his occupation of the premises” and the Applicant was not deprived of his occupation because he carried on living there for several months.

30. As for section 1(3) of the [NAME], did the First Respondent do acts likely to interfere with the peace or comfort of the residential occupier with intent to cause the residential occupier to give up the occupation? We accept that the Applicant was a residential occupier (even though not a tenant) and that the actions of the First Respondent were likely to (and did) interfere with his peace or comfort, but was her intention to cause him to give up occupation? The Applicant’s evidence as to what the First Respondent said when the police were on the scene suggests that she did not want him to leave but instead wanted him to start paying rent to her direct as the [NAME] Respondent had only (according to her) passed on to her a small proportion of the rent received. The Applicant’s evidence as to the First Respondent’s intention is that she later served him with an eviction notice and that this constituted proof that she intended him to give up occupation, but this does not prove that this was her intention at the time that she attempted to gain entry, and we have to be satisfied beyond reasonable doubt that this was her intention at the time that she did acts likely to interfere with the residential occupiers’ peace or comfort. We are not satisfied on this point beyond reasonable doubt.

31. As for section 1(3)(A) of the [NAME], did the First Respondent do acts likely to interfere with the peace or comfort of the residential occupier either knowing or having reasonable cause to believe that her conduct was likely to cause the residential occupier to give up the occupation? Again, we are not satisfied beyond reasonable doubt that this is the case. The Applicant has failed to prove that this was the First Respondent’s intention, and he did not in fact give up occupation until many months later, and therefore it has not been proved beyond reasonable doubt that the First Respondent knew or had reasonable cause to believe that her conduct would cause the Applicant to give up occupation.

32. In conclusion, we are not satisfied beyond reasonable doubt that the First Respondent has committed an offence under section 6(1) of the Criminal Law Act 1977 or under section 1 of the [NAME].

12 Further observation 33. The Applicant came across well at the hearing, and nothing in this determination is intended to cast any doubt on the distress suffered by him in connection with the First Respondent’s actions, the frequency of the visits by [NAME] or the poor condition of the [NAME]. Cost applications 34. There have been no cost applications.

Name:

Judge P Korn

Date:

9 May 2024

RIGHTS OF APPEAL

A. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) a written application for permission must be made to the First-tier Tribunal at the regional office dealing with the case.

B. 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.

C. If the application is not made within the 28 day time limit, such application must include a request for extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at such reason and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit.

D. 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.