Unite students appeal dismissed

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This was an appeal at the Upper Tribunal (Lands Chamber) (UT) brought by Unite Group PLC against the lower tribunal’s decision to make a RRO against them/the amount of such an award.

Their appeal grounds were:
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1.That Haringey had failed to take account of Purpose-built Student Accommodation (PBSA) in the borough in designating its Additional licensing scheme
2. That Haringey had failed to consult according to s56(3) of The Housing Act 2004 (HA)
3.That the FtT erred in law by suggesting that the appellant’s position on consultation amounted to a contention that it was entitled to “special consultation treatment”
4.That FtT had regard to an irrelevant consideration when it suggested that the appellant could have addressed any failure of consultation by judicial review proceedings.

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Dealt with as follows:
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On ground 1, Unite did not provide any evidence for this but only relied on the surprise expressed in emails from front line staff at Haringey when Unite applied.  The staff were unlikely to have been involved in the designation’s details and policy. That the same staff were surprised was by Unite’s failure to license was not astonishing (§34):

“…the housing team responsible for licensing HMOs were taken aback to receive, three years into the period of the scheme, a request from the appellant to licence 221 HMOs of which the officers had previously been unaware” (our emphasis).

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Ground 4 was addressed in relation to the above: had Unite called for a judicial review (JR) of the Additional licensing scheme designation it might then have had evidence for ground 1. But it did not, so had not. It was not the FtT’s suggestion that Unite should have called for a JR years after the event.

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Unite had produced no evidence for ground 2 that Haringey’s consultation had been defective in any way, as for ground 1.

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On ground 3, UT found that Unite had misinterpreted the FtT judgment which had instead criticised Unite’s “passive approach to its licensing responsibilities”. In a telling aside, UT commented:

“The FTT’s characterisation of the appellant’s case was not inaccurate.” §40
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On the cross appeals, we had argued the following in written submissions:
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1.That the FtT should have given more consideration to the As’ reports of conditions at the property in setting the award
2.That utilities paid by the landlord should not have been deducted from the award
3.That licensing offences should be considered as amongst the most serious offences under the RRO legislation
4.That FtT did not sufficiently consider that professional landlords should have larger awards made against them

In the end we did not pursue ground 3 and grounds 1 & 4 were refused permission. So it was all down to whether utility payments should have been deducted.

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There were 2 legs to this argument:

● that R had not provided sufficient evidence for their utility payments (actually none at all- just figures on a blank sheet of paper).
●That it was wrong in principle to deduct such amounts based on the wording and interpretation of the legislation

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On the deduction of utilities, UT dismissed our arguments:
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●The UT’s statement in Vadamalayan, at §15 that “There is no reason why the landlord’s costs in meeting his obligations under the lease should be set off against the cost of meeting his obligation to comply with a rent repayment order” had been taken out of context
  • On the lack of evidence for utilities payments, UT relied on its judgment in Acheampong v Roman [2022] UKUT 239 (LC) : 
    “…if precise figures are not available an experienced tribunal will be able to make an informed estimate.” §20
●Our argument that deducting utilities from the RRO does not account for standing charges that would normally be borne by the LL when a property is empty, and therefore form part of the maintenance, was dismissed with the statement that RROs are a “blunt instrument” (Daff v Gyalui & Aiach-Kohen [2023] UKUT 134 (LC)) and cannot be finely tuned arithmetically

●We had argued that a RRO should “relate to rent paid”: s 44(4) The Housing and Planning Act 2016 (HaPA). Not the “net rent”, i.e. after deducting utilities. However, UT did not find these deductions at odds with the legislation, using its own decision in Williams v Parmar & Ors [2021] UKUT 244 (LC) in support, where the President had stated at §25 that the RRO must relate “in some way” to the rent.
In its final paragraph of the decision (§80), UT states that
“the statutory direction also necessarily requires that the assessment take account of other relevant circumstances, one of which will often be that the landlord has paid the cost of utilities consumed by the tenant.”
UT did not base its argument s here on law, other than its own judgments, so that

this is probably not the final paragraph on this issue.

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In conclusion, the FtT’s judgement is preserved intact. It is difficult to see how a further appeal would be allowed.

Congratulations to my colleague George Penny of 187 Chambers for successfully defending this appeal -and arguing our x-appeals.

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