Housing – Rent repayment order – House in multiple occupation – Respondent landlord committing multiple housing offences – First-tier Tribunal deciding it had power to award only one rent repayment order per tenant – Appellant tenants appealing – Whether tenant able to obtain more than one rent repayment order if landlord committed more than one offence to which Chapter 4 of Part 2 of Housing and Planning Act 2016 applied – Appeal dismissed
From 3 May 2018, the respondent was registered as proprietor of the long lease of 28 Malden Crescent, a three-bedroomed former council flat in Camden, London. At that time the appellant tenants occupied the flat and they each signed new six-month tenancy agreements with the respondent. They were excluded from the property in July 2019.
In November 2019, the appellants applied to the First-tier Tribunal (FTT) for a rent repayment order under section 41 of the Housing and Planning Act 2016 on the basis that the flat was a house in multiple occupation (HMO) that was unlicensed contrary to section 72(1) of the Housing Act 2004, and the respondent had harassed and unlawfully evicted them in breach of sections 1(2), (3) and 1(3A) of the Protection from Eviction Act 1977.
The FTT was satisfied that the appellant had committed the offences and that it had power under section 42(1) of the 2016 Act to make rent repayment orders in favour of each of the tenants. The FTT rejected the appellants’ submission that there should be a separate rent repayment order for each of the three offences, each ordering repayment of the maximum of 12 months’ rent. It held that it had power to award only one rent repayment order per tenant, however many offences a landlord had committed because the order was “for the repayment of rent” and could not exceed the amount of rent paid. The fact that multiple offences had been committed could be taken into account as relevant conduct on the part of the landlord when determining the amount to be repaid under section 44(4)(a) of the 2016 Act, but the total amount ordered could not exceed 12 months’ rent. The appellants appealed.
Held: The appeal was dismissed.
(1) Clear guidance was provided by section 44 of the 2016 Act as to the amount which might be ordered to be repaid under a rent repayment order. Section 44(3) set the limit. The amount a landlord might be required to repay in respect of a period was not to exceed the rent paid for that period less any relevant award of universal credit paid in respect of rent under the tenancy during that time. It was significant that the limit was expressed by reference to a period of time, and the rent paid in respect of that period, rather than by reference to a particular offence. If a number of offences were committed in the same period, the application of section 44(2) would result in a single period of time, rather than multiple periods of time each of the same duration and commencement. The amount which might be made the subject of a rent repayment order had to relate to the rent paid by the tenant in respect of that period.
The description of the orders as rent “repayment” orders indicated that parliament’s intention was that the sum actually paid should be reimbursed and not multiples of the same sum. Very clear language would be required to confer on the FTT a power to order “repayment” of a sum greater than had originally been paid. The purpose of rent repayment orders was primarily to deter landlords from committing housing offences rather than to compensate tenants who had experienced the consequences of those offences.
An unlicensed HMO might be a perfectly satisfactory place to live, and might give rise to no disadvantage to the tenant requiring compensation, yet such a tenant was just as able to apply for a rent repayment order as a tenant who had been unlawfully evicted. A tenant who had suffered loss or damage as a result of an unlawful eviction or a breach of a landlord’s repairing obligation need not rely on a rent repayment order for compensation and had additional rights to claim damages; a rent repayment order was not an award of damages. The proper interpretation of section 44(3) was that the amount repayable in respect of a single period might not exceed the rent paid during that period, no matter how many offences an order related to.
(2) Where a number of offences had been committed, the application of section 44(2) might yield different periods applicable to different offences which might be distinct or overlap and, in aggregate, exceed 12 months. On the facts, the FTT found that the licensing offence was committed from 15 March 2018 until 28 July 2019, a period of 16 months and 13 days. The harassment occurred during July 2019 and the unlawful eviction took place on 28 July 2019. For the harassment and eviction offences the relevant period was the 12 months ending with the date of the offence, but for the licensing offence it could be any period, not exceeding 12 months, during which the offence was being committed. Section 44 provided no real guidance on the treatment of overlapping periods or multiple offences except that the amount repayable in respect of the relevant period must not exceed the rent paid during that period.
(3) It was a general principle of law that a person should not be penalised except under clear law; that gave rise to a presumption of statutory interpretation against doubtful penalisation to be applied to the imposition of a civil liability as well as to a criminal liability. The presumption was not absolute and the weight to be given to it was likely to be influenced by the severity of the penalty in question. The penalty under section 44 was draconian, potentially depriving the landlord of the whole of the rent received for the relevant period. In an appropriate case the tenant in whose favour an order was made might also pursue a civil claim for damages. Had parliament intended that more than 12 months’ rent could be repaid, it would have said so much more clearly in section 44(3). Therefore, 12 months’ rent was the maximum which a landlord could be ordered to repay on an application under section 41, irrespective of the number, timing or duration of the offences committed.
Francesca Nicholls (of Flat Justice) appeared for the appellants; Nicholas Towers (instructed by Direct Access) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Ficcara and others v James
