By virtue of section 41 of the Housing and Planning Act 2016, tenants can apply to the First-tier Tribunal for a rent repayment order in circumstances where their landlord has committed certain housing-related offences listed in section 40.
When a licensing offence is committed, the amount of an RRO “must relate to rent paid by the tenant in respect of a period, not exceeding 12 months, during which the landlord was committing the offence.” Section 44(4) lists a number of factors the FTT must take into account; namely, the conduct of the landlord and tenant, the financial circumstances of the landlord and whether the landlord has at any time been convicted of a housing offence.
The Upper Tribunal (Lands Chamber) in Williams v Parmar [2021] UKUT 244 (LC); [2021] PLSCS 169; clarified the approach the FTT must adopt when making an RRO. In short, the amount of the RRO must “relate to” the amount of the rent paid during the period in question. It may be a proportion of the rent paid, or the rent paid less certain sums or a combination of both. Above all, the UT stressed in Williams that it wrong for the FTT to use as its starting point when making an RRO, the maximum amount of rent paid for the period, subject to adjustments made for the factors set out in section 44(4).
In the conjoined appeals of Acheampong v Sanchez Roman; Choudhry v Razak [2022] UKUT 239 (LC) the UT observed the FTT was still experiencing difficulties in its approaching to making RROs. In both appeals, the UT set aside the award of the RRO because the FTT had erred in using the maximum amount of rent paid for the period as the starting point for calculating the RRO.
To ensure greater consistency, the UT provided the following additional guidance; namely the FTT should:
- Ascertain the whole rent for the relevant period
- Subtract any element of that sum that related to the payment of utilities that solely benefited the tenants
- Consider the seriousness of the offence, both compared to other types of offences for which an RRO could be made and to other examples of the same type of offence.
- Consider whether any deduction from, or addition to, the sum reached should be made in light of the factors set out in section 44(4).
As noted by the UT, the final step formed part of the assessment that was required under section 44(4)(a). The conduct of the landlord was to be assessed in the context of the offence itself. The UT included the same as a separate step because it was the one that was most frequently overlooked when the amount of an RRO was determined.
Elizabeth Dwomoh is a barrister at Lamb Chambers
