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  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  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  UKUT 239 (LC) (Acheampong) laid out 4 stages in this process and this was confirmed again in the more recent Hancher v David & ORS  UKUT 277 (LC) (Hancher). These stages are:
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 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.
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:
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.
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):
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 v Bilkhu & Anor (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 v Parker & ORS  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:
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  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:
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.
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):
Stage 4: Other considerations under s44(4)
-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  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’.