Quantum Physics: RRO-style

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A recent UT judgment (Hancher– see below) has yet again laid out the stages for calculating the “Quantum” or amount that should be awarded in successful RRO cases. We’ve now had a whole series of UT judgements banging on about this.

Why is it so difficult for the First-tier Tribunals to get RRO awards right?

Below we look at the recent history of RRO case law on the subject of QUANTUM and indulge ourselves in a ‘thought experiment’ to show how the UT’s apparently simple “4 stage process” …is anything but.

Following Williams v. Parmar [2021] UKUT 244 (LC) (Williams), the earlier “starting point” of 100% of rent paid (per Vadamalayan) has been clarified. Williams is however clear that 100% of the rent paid during a period, not exceeding 12 months, can be awarded. Williams has established that a broader view needs to be taken by the tribunal, accounting for a range of conduct and material, guided by the statutory factors, in determining the sum of any award. Per Awad v. Hooley [2021] UKUT 55 (LC), a wide range of conduct can be considered.

The Upper Tribunal has used several RRO appeals to clarify the stages the FtT should use to arrive at a correct level of RRO award. Acheampong v Roman 2022 [2022] UKUT 239 (LC) (Acheampong) laid out 4 stages in this process and this was confirmed again in the more recent Hancher v David & ORS [2022] UKUT 277 (LC) (Hancher). These stages are:

1.Calculate whole of rent paid in the relevant period
2.Deduct utility bills etc. paid by the landlord, if any. Ignore mortgage payments
3.Assess seriousness of the offence: both compared to other RRO offences & compared to other similar offences along with the relevant conduct of the parties to arrive at a percentage of the rent to be awarded before any further adjustments. This effectively 3 assessments:
a)Assessment of the offence compared to other RRO offences
b)Assessment of this offence compared to other examples of the same offence where convictions have been made
c)Assessment of related landlord conduct with regard to the property and the occupants
4.Consider adjustments for any other s44(4) factors, e.g. relevant convictions, financial circumstances etc.

We therefore present our arguments on quantum according to these 4 stages, as follows:

Stage 1: amount of rent

Calculate whole of rent paid in the relevant period- OK so far…

Stage 2: deductions

Deduct utility bills etc. paid by the landlord, if any. Ignore mortgage payments. Reasonably straightforward.

Stage 3: seriousness of the offence

This is where we start to wish we’d taken up Physics instead.

Looking at offences at line 5 or 6 of HaPA s40(3): the failure to license a licensable property

a)Comparison to other RRO offences

A recent case at the London First-tier Tribunal Property Chamber (Residential Property) (FtT) discussed in detail the instructions of the Upper Tribunal (Lands Chamber) (UT) in Acheampong to compare RRO offences for seriousness using maximum sentencing on conviction at the magistrate’s courts. In this case, Smith v Tyagi (2022) LON/00BB/HMF/2022/0017 (2022) the Tribunal concluded, at §109:

“Insofar as the maximum sentences on conviction are of indicative assistance, therefore, they are only useful in establishing that the offences in lines 1, 2 and 7 of section 40(2) are worse than those in lines 3 – 6, and that the offences 1 and 2 are considered worse than 7. ”

The Tribunal went on to refine their ordering of offence seriousness using Tribunal experience in these matters and concluded, at §112:

“The hierarchy of severity of the offences in section 40(2), then, on the above analysis, is (highest to lowest): line 1 and 2 offences; line 7 offences, line 4 offence; line 3 offence; and lines 5 and 6 offences at the bottom of the scale. We see no reason to distinguish between the two failure to license offences.”

In Hancher Judge Cooke also wrote that
“The offence under section 72(1) [& presumably 95(1) also] of the Housing Act 2004 [so a licensing offence] is not one of the more serious of the offences for which a rent repayment order can be made.”
However, this comment was made in the context of the Hancher case where Judge Cooke also noted that the property was in reasonable condition, probably without any need for modification for approval of a licence. We note that in Chan (see below) Judge Cooke made an award in a licensing offence that was for 100% of the amount found at stage 2.

It is worth noting, with regard to the licensing offence, that licensing was introduced because of the high risk to occupants of HMOs in particular. This helps to explain how licensing offences often achieve very high awards.

In Rogers v Islington London Borough Council 32 HLR 138, 140 Nourse LJ quoted a passage from the Encyclopaedia of Housing Law and Practice, and then added some comment of his own:

“Since the first controls were introduced it has been recognised that HMOs represent a particular housing problem, and the further powers included in this part of the Act are a recognition that the problem still continues. It is currently estimated that there are about 638,000 HMOs in England and Wales. According to the English House Condition Survey in 1993, four out of ten HMOs were unfit for human habitation. A study for the Campaign for Bedsit Rights (now a unit within Shelter) estimated that the chances of being killed or injured by fire in an HMO are 28 times higher than for residents of other dwellings. The high or very high risks from fire to occupants of HMOs is confirmed by the study entitled “Fire Risk in HMOs”, a summary report to the Department of the Environment, Transport and the Regions prepared by Entec UK Ltd in November 1997. HMOs can also present a number of other risks to the health and safety of those who live in them, such as structural instability, disrepair, damp, inadequate heating, lighting or ventilation and unsatisfactory kitchen, washing and lavatory facilities. It is of the greatest importance to the good of the occupants that houses which ought to be treated as HMOs do not escape the statutory control.”

The point here is that licensing is not just another ‘piece of paper’ as some landlords have argued. It is a vital way of ensuring the occupants’ lives are not put at risk, both in HMOs and other privately let property. In this sense we argue that not licensing a property is, potentially, one of the more serious offences and could therefore attract a higher award. This position is recognised in Williams at §54:
“In any such cases [licensing offences], however, the tribunal retains a discretion to order repayment in the maximum amount, if justified.” It is also reinforced by Judge Cooke’s own 100% award for the licensing offence in Chan.

b)Comparison to judgments for similar RRO offences

This part of the process is often the most challenging as there are so many combinations of variables in each case.

Compared with other licensing offences we offer these examples. We look only at UT decisions where a FtT award has been set aside and substituted its own award or where important relevant guidance is given on the level of award:

Vadamalayan

At §56, Judge Cooke states, for this licensing offence case:

“Were I making this decision on a blank sheet of paper, without any prior proceedings in the FTT, I doubt that I would deduct anything from the maximum”

so that it is, again, clear that UT believes that 100% of the amount found, at stage 2 above, can be awarded in licensing cases.

Williams

Judge Fancourt, the Tribunal president, adjusted the FtT award which had been 100% of the stage 2 calculation, reducing the award by 20% for most As and by 10% for one A who was “particularly affected by the condition of the Property.” The factors considered relevant in this decision were (mostly §52):

1.+ve: Landlord was a “first offender”
2.-ve: Landlord was a professional landlord that knew about licensing and had previously licensed other properties. Their alleged ‘oversight’ was alternatively explained by an inability or unwillingness to invest in the property
3.-ve: The licence application was only made after the council inspected the property
4.-ve: The property was not in a licensable state and one bedroom was undersized so would not have been included on a licence

Although the quantum consideration here did not follow the more formulaic 4 stage process outlined in Acheampong it helps to show the factors deemed relevant by the UT and their effect on the final award.

            Chan

Chan v Bilkhu & Anor (2020) [2020] UKUT 0289 (LC) Judge Cooke, in a hearing subsequent to Vadamalayan, reinforced the point that licensing offences can attract 100% awards as was the case here. That only 75% of the rent claimed was awarded was due to the fact that the property was not licensable before the Prescribed Descriptions Act for 3 months: 100% of the eligible rent at stage 2 was awarded. A key factor here was that the landlord owned 10 further rental properties so were clearly a professional landlord.

Hallett

Hallett v Parker & ORS [2022] UKUT 165 (LC) (Hallett) has helped to refine what conduct is most relevant and what combination of circumstances may offer mitigation. It perhaps sets the baseline for a licensing offence award where a number of factors combine to provide the maximum mitigation that is nonetheless short of a ‘reasonable excuse’. In this case the UT allowed for a lower RRO award because the landlord was:

1.Not a professional landlord, who let only 1 property
2.He employed an agency
3.He had not let the property previously as a HMO but only to single households
4.He was unaware of the requirement to license
5.The property was in reasonably good condition
6.He had immediately made a licence application when he became aware of the necessity
7.He was abroad most of the year so had not been aware of the change in legislation

The combination of all of these factors led to a discount on the award: from 100% to 25%. It is clear, however, from the almost simultaneous judgment in Simpson House 3 Ltd v Osserman & ORS [2022] UKUT 164 (LC) (Simpson) (discussed below) that a combination of these factors is necessary for a discount to the award.

Simpson House 3 Ltd

Judge Martin Rodgers re-made the FtT decision taking into account the following factors:

1.At § 49, the importance of HMO licensing in curbing non-compliance and promoting the objectives of Additional licensing schemes.
2.At S50: “the Landlord is a substantial property investment company with resources sufficient to ensure that [it] complies fully with its responsibilities.” Judge Rodgers noted that despite this there were a number of failings by the landlord, concluding that the “Landlord’s business practices involved a systematic or institutional neglect of regulatory requirements”
3.At §51, it was considered that the property was generally well maintained so that “the Tenants were not exposed to greater risks or deprived of practical protections which they would have obtained if the Landlord had applied for a licence.” This consideration matches the deliberations of Judge Cooke in other cases where she considered whether the property was in a licensable state during the occupancy.
4.Judge Rodgers gave “considerable weight” (§57) to the notices served on the tenants “in response to [their] complaints” so “vindictively terminating the tenants’ right of occupation”. Additionally, the landlord had misrepresented the law, in a menacing manner, in the notice to quit.

Hancher

In the above Hancher case the award was set by the UT itself. It was considered, as mentioned above, that not licensing was not the most serious offence. However, UT concluded that R had not heeded their architect’s advice that the property was licensable: they had deliberately avoided licensing. This led to a percentage award of 65% of the rent paid, as calculated at stage 2.

Choudhury

This UT decision concerned the second appeal considered with Aheampong. The UT remitted the Acheampong case to the FtT for further determination but made its own award in the Choudhury case so its deliberations there may be helpful.The landlord had failed to protect the As’ deposits, had no current Gas Safety Certificate (GSC) and there were some fire safety issues which “may have made the property ineligible for a licence…But this was not the most serious offence of its kind.” A 75% award was substituted by Judge Cooke.

c) Related landlord conduct

As mentioned in some of the above cases there is a range of further landlord conduct which may be considered as relevant for the assessment of the award. The conduct issues that may be considered may include the following (not exhaustive):

●Not fitting correct or working fire safety and alarm equipment
●Threats of or actual eviction for tenants’ attempts to exercise their rights
●Illegal eviction notices
●Harassment
●Abusive or aggressive behaviour or language
●Not arranging or not issuing a Gas Safety Certificate (GSC)
●Not issuing new tenants with a current “How to Rent” Guide
●Not having an Electrical Installation Condition Report (EICR)
●Not arranging or issuing an Energy Performance Certificate (EPC) where necessary
●Not arranging a Fire Risk Assessment (FRA) where necessary
●Not carrying out the ‘right-to-rent’ checks
●For HMOs: not applying for planning permission for the HMO where necessary, for example where a Local Authority (LA) has made implemented an Article 4 Direction under The Town and Country Planning (General Permitted Development) Order 1995
●The issuing of a ‘sham’ licence agreement when the occupancy is really an Assured Shorthold Tenancy (AST)
●Unfair terms in the tenancy agreement
●So-called ‘bait-and-switch’ advertising tactics
●Promoting a tenants’ rights, e.g. tenancy protection as a special perk
●Not providing the landlord’s details or not displaying them when required
●Deposit issues: not protecting a deposit, not correctly notifying of same, requesting too much deposit, etc.
●Not returning overpaid rent
●Charging illegal fees
●Attempted unfair deductions from a deposit
●Unfair practices such as those listed in The Consumer Protection from Unfair Trading Regulations 2008 section 5 or misleading omissions (see section 6)
●Entering a subject property without due notice and/or with unreasonable frequency
●Misrepresenting the law in notices to tenants
●Use of threatening or abusive language
●Not maintaining the property or undue delays for the same
●Unfair demands regarding utility charges: e.g. that HMO tenants pay council tax when it is the responsibility of the landlord to pay

Stage 4: Other considerations under s44(4)

Applicant Conduct

-the main causes for a reduction are rent arrears and the effect can be quite substantial, e.g. a 75 % reduction in Awad v Hooley [2021] UKUT 55 (LC) (Awad) but this was also exacerbated by A being unreasonably difficult in scheduling visits & other positive landlord conduct issues

Financial circumstances of the landlord

– less frequently used due to the insistence that these must be fully documented by R

Exceptional Circumstances of the landlord

-often claimed but hardly ever allowed

Got all that?

Expect yet more UT judgments in further ‘clarification’.

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