Appeal win…sort of

We received an enquiry back in April this year from an RRO Applicant that had conducted their own case at the First-tier Tribunal (Midlands) but they were not happy with the decision. They had applied for £4482.50 in rent paid whilst the property was an unlicensed HMO: the Tribunal awarded only £1494.17 on the grounds that… well it was hard to find exactly. They considered mortgage payments but had no evidence of these in front of them; they considered that the landlord had not been prosecuted by the council (Landlords hardly ever are); they also, apparently, took into account that the landlord had 10 HMOs they rented out: not quite sure how that figured in the 66% reduction, though!

Sometimes you think an RRO case looks pretty straightforward. That’s what we thought here and with the Applicant keen for us to manage the appeal for them we put together the arguments for their grounds. Remember this was before Vadamalayan so the arguments were not so straightforward: we provide these here for your interest. The FtT rejected our request to review the decision: only once has the FtT (London in that case) accepted a request from us to review a decision, so no surprise there. An application for permission to appeal was duly lodged with the Upper Tribunal (Lands Chamber) (UT). Once granted we made the appeal. (NB: Flat Justice charges a contingency fee of 20%: for appeal-only cases, such as this one, the fee is charged only on an improvement in the award achieved.)

The UT hearing was conducted by video rather than being conducted ‘on the papers’. The Respondent landlord raised the point that the property only had two storeys not three and was therefore not licensable as a HMO until the Prescribed Descriptions Order 2018 removed that qualification on 1st October 2018. Our Applicant was applying for rent which covered periods before and after this change in the legislation. Although the legislation change was mentioned in the original decision, at §19, there had been no further discussion of storeys in the judgment. Indeed, the Tribunal found (at §42) “that the amount of rent paid by the Applicant during the relevant period was £4,482.50.” i.e. including rent paid before 1/10/2018, when the legislation changed. We therefore assumed that the FtT had decided at some stage that the property had qualified as a mandatory HMO before 1/10/2018.

It’s when you make assumptions that things can start to go wrong, of course. Judge Cooke spotted the anomaly very quickly and we had to agree that the property, having only 2 storeys, would not have been licensable before 1/10/2018. The amount of rent paid in the relevant period was then only £3,361.87. The full amount of this was duly awarded by the UT to our client in light of the intervening Vadamalayan ruling. UT Decision here.

So we more than doubled the original award: a success by most standards.

But we feel nonetheless chastened by the experience! RROs keep on teaching us that: (1) they are ALL different; (2) they all need meticulous attention to detail; & (3) ignore (1) & (2) at your peril.