Looking at the most common reasons in more detail:

'offence not made out'

Clearly the most common reason. RRO offences need to be proved by the Applicant to the criminal standard of evidence, i.e. "beyond reasonable doubt". This does not mean "beyond any doubt at all" as we showed in the Opara v Olasemo case. But it can still be a tough hurdle. Here are some of the common reasons for failure under this category:

• Council error: a huge proportion of the failures are due to council errors/incompetence. Of the 68 RRO failures for 'offence not made out', 13 were directly as a result of council errors. For example, taking one of these cases, this is an extract from the judgement:
  
  It is also, unfortnately, the experience at Flat Justice that errors at Local Authorities (LAs) are very frequent and can, if not guarded against, cause an application to fail

• Illegal eviction/harassment: a very high proportion of failed cases are for this offence. It is an unfortunate fact that many tenants in the Private Rented Sector (PRS) feel they are victims of harassment by their landlord. However proving this to the criminal level can be very, very challenging. Equally unfortunately, tenants are often evicted on an illegal basis but 'go along' with the eviction and move out rather than waiting for a possession order: if the Tribunal considers that Applicants may have known their eviction basis was illegal then there may be no award as they did not resist.

• Applicants not appearing at the Tribunal hearing to confirm their Sworn Witness Statement (SWS)

• Not sufficient witnesses/Applicants to prove occupancy which is denied by Respondent

• Insufficient evidence of payments

'reasonable excuse'                                                                                                                                                                                                                                                                                          

This is when the Tribunal considers the LL had a reasonable excuse for the offence. Often these can also be linked to council errors, for example in one case the council had told the LL that they would let them know if their property would become licensable but then didn't do so (second in this category).
Altogether there were a further 6 failures under this category due to mistakes by councils.
But this failure category may also relate to, for example, a HMO being created in a property without the LL's knowledge, e.g. by tenants illegally subletting.

'application out of time'

A further 2 failures here were due to council errors. Timing of an application is crucial: the 12 month window for RRO applications is critical. This limitation also covers important changes to the application, e.g. additin of a Respondent.

'period'

In this category there has been an application made such that the applicant is left with no offence period against which to claim. Looking at the notes for this category we see 'application made' as the only reason here: this means that the landlord had applied for licence before the claim period started. These are nearly always also a result of council errors in informing Applicants about licence application dates. For example, in the second case listed:

We counted that 4 of these failures were due to councils supplying false information.

'incorrect respondent'

The Rakusen case which disallowed applications against higher landlords is probably the biggest factor here although there are still some As that make applications against agents rather than landlords.

Why & when are deductions made to RRO awards?

This has changed a lot over from the start of the The Housing and Planning Act 2016 (HaPA) RRO scheme introduction in 2018. To start with, Tribunals were using the Parker v Waller case law under The Housing Act 2004 (HA) that was looking at landlord 'profit' and so allowed a whole variety of costs now not allowed (especially mortgage payments). Nonetheless, the surge in RRO cases in more recent times outweighs the earlier cases so the findings are still useful.

2021 deductions analysed
We sorted the awards made in 2021 according to the main reasons for allowing a deduction, or not allowing any deduction. We're still working on the  2022 data....coming soon! Ignoring the categories such as 'period', 'UC' (Universal Credit) & 'utilities', which are not discretionary (so can be calculated), the main categories are:

• LL  conduct: this is negative landlord conduct and takes in a whole host of behaviour, often including harassment and abuse & is a factor in not reducing the award from 100%

• LL +conduct: positive landlord conduct works the other way and helps to reduce the award

• +condition: similarly, a property that was in good condition during the period applied for was a mitigation and led to smaller awards

• arrears: tenants had not paid all the rent due in the period

• fire safety

• LL professional/ LL unprofessional: so a professional landlord is normally one with  more than 1 property. Clearly there are different degrees here ranging from a LL with 2 properties to listed companies owning £millions of property and the awards normally reflect this

Clearly LL conduct is an important category in setting the award level. The highest award made where on balance there was positive LL conduct was 75%.

Most of the higher awards involved negative LL conduct and a number of other factors, particularly previous offences (LL offence), LL professional and safety issues at the property.

Here are the results in full: