Victory for Nurse’s RRO Appeal at Upper Tribunal

Mary, the Applicant (left) & Lyle a housemate and witness at the FtT hearing

3 Appeal Decisions, 3 wins for Flat Justice

The Upper Tribunal (UT) has just released its Decision for what was actually Flat Justice’s first appeal of a Decision by the First-tier Tribunal Property Chamber (Residential Property) (FtT) this year.

For background on the original Rent Repayment Order (RRO) case please see our earlier blog here:

This is a case which should never have had to go to Appeal. The Applicant (A) had submitted excellent evidence which the FtT chose to rubbish. The Respondent  landlord (R), in contrast, presented no evidence of his licence application date.

The main reason for allowing the appeal was the evidence obtained by Flat Justice from the Royal Borough of Greenwich (RBG). The UT Decision notes that “This evidence was obtained with some difficulty.” (§34) A cool British understatement!

The sad fact regarding this new evidence, however, is that it mainly confirmed the already compelling evidence that the A had previously submitted in her bundle but which the FtT, in its Decision, had implied might be forged: an allegation originally made by the R. The UT wrote, at §36 of its Decision, that “the FTT did not explain why it found that suggestion [of the R] credible.” Why, indeed?

The easy acceptance by the FtT of serious and unsubstantiated allegations by a Respondent, risks the perception of bias at a Tribunal where the vast majority of its lay members are from the landlord-serving professions: chartered surveyors, architects, etc.

Where are the lay members of the Tribunal from tenant-facing professions: solicitors from Law Centres, Local Authority Environmental Health and Tenancy Relations Officers etc. who have experience and understanding for the huge problems tenants face in our broken Private Rented Sector? We feel this is an imbalance at the FtT that needs to be addressed urgently.

Furthermore, and this is a huge weakness in the RRO process, the R’s allegations of forgery were never communicated to the Applicant before the hearing. We have found that the R seems to have submitted a different bundle of evidence to the FtT to that which was sent by him to the Applicant (A)… and there was no way to know this before the hearing. 

We will be writing to the FtT to make suggestions for improvement to this situation: the most obvious would be that all (identical) bundles go to the FtT, one of which is then sent by the FtT to the other party.

So the new evidence wasn’t really necessary: simply a willingness, at the FtT, to give proper consideration to the Applicant’s original evidence.

The R never complied with the FtT’s Directions regarding submission of all correspondence regarding his licence application. He only submitted a redacted copy of the eventual licence. For RRO licensing offences, the offence ends when an effective licence application has been made, not when a licence has been issued. There was no evidence in the R bundle regarding the date of his application: only his statement, repeated ad nauseam, that he had applied in October 2017. The FtT should have insisted that this evidence was supplied by the R in good time for the hearing. Without this vital evidence the original hearing was severely compromised and this is why Flat Justice applied for the Decision to be set aside on 1/2/2019. The FtT refused, and so missed the first opportunity to correct its mistake. Another opportunity for the FtT to put matters right was ducked at our later appeal application: the Decision could have been reviewed at the FtT itself. Instead the Applicant had to face presenting her case all over again to the UT along with the payment of £550 in fees and the delay of many months. Flat Justice advances these fees for the Applicant and has acted throughout on a pro bono basis: without this support it is unlikely the case would have been appealed.

Again, at the UT, the R was unable to produce any evidence of his assertion that he had applied for a HMO licence before May 2018.

The UT found that the grounds for the appeal were not clearly specified by the FtT and concluded that the appeal was on the grounds of the licensing offence and illegal eviction only. The alleged harassment offence was not considered part of the grounds and was therefore not addressed. The A, who alleges intolerable harassment, left before the notice period given by the R and so the illegal eviction allegation failed. However, as the FtT decision has been set aside by the UT and the FtT has been directed to hold a new hearing, we will request that the harassment issue is properly considered anew.

The UT remarks at §35:
“In the light of the new evidence it may well be that the FTT could be satisfied beyond reasonable doubt that the property was unlicensed from 1 October 2017 until a valid application was made.”

Our fight continues and we are hopeful that Justice will eventually be served in this case.