Key point
- Only a single rent repayment order will be made in favour of a tenant for multiple offences committed by a landlord in a relevant period irrespective of timing or duration of the offences committed
A rent repayment order is supposed to act as a financial deterrent to prevent landlords from committing certain housing-related offences. Under the Housing and Planning Act 2016, the First-tier Tribunal has jurisdiction to make an RRO requiring a landlord to repay rent to a tenant if the landlord is found to have committed an offence under section 40(3). The FTT must be satisfied beyond a reasonable doubt that an offence has been committed.
The question that the Upper Tribunal (Lands Chamber) was asked to resolve in Ficcara and others v James [2021] UKUT 38 (LC); [2021] PLSCS 43 was whether multiple RROs could be made against a landlord who had committed more than one offence listed under section 40(3) in a 12-month period.
Statutory framework
Section 44 of the 2016 Act determines how much a landlord can be required to repay under an RRO. Section 44(2) requires that the amount ordered “must relate to rent paid during the period” by reference to when the offence was committed.
Section 44(3) limits the amount a landlord can be ordered to repay under an RRO. The rent to be repaid must not exceed the rent paid in respect of that period less any relevant award of universal credit paid in respect of rent under the tenancy during that period.
The offences
Hannah James was the long lessee of a three-bedroom flat in Camden. The flat was a house in multiple occupation that required a licence. James had sublet the flat to the appellants – Rosa Ficcara, Valentina Patermo, Marilena Balistreri and one other individual.
On 28 July 2019, James excluded the appellants from the flat. The other sub-tenant had moved out in March 2019. In November 2019, each of the appellants applied to the FTT for an RRO. Each alleged that James had committed three separate offences. The first offence was being in control or managing an HMO that was required to be licensed, but was not so licensed, contrary to section 72(1) of the Housing Act 2004. The remaining offences were harassment and unlawful eviction contrary to section 1(2), 1(3) and 1(3A) of the Protection from Eviction Act 1977.
In relation to the offences of harassment and unlawful eviction, under section 44(2) of the 2016 Act the amount the FTT could order a landlord to repay under an RRO had to relate to the rent paid by the tenant within the 12-month period ending with the date of the offence. The amount a landlord could be ordered to repay under an RRO for the HMO licensing offence had to relate to the rent paid by the tenant in the period not exceeding 12 months during which the offence was being committed.
The FTT was satisfied beyond reasonable doubt that all three offences had been committed. It found that James had fabricated a document that suggested the appellants were members of the same family. Additionally, James was found to have been verbally abusive and aggressive to the tenants. In July 2019 she unlawfully evicted the tenants and changed the locks.
The FTT made a single RRO in favour of each tenant for the multiple offences committed. It rejected the appellants’ argument that a separate RRO should have been made for each offence, with each ordering repayment of the maximum of 12 months’ rent. The appellants appealed.
The decision
The UT was highly critical of the appellants’ assertion that more than one RRO could be made for multiple offences that were committed in the same period under section 44 of the 2016 Act. The UT observed that section 44(3) clearly limited the number of RROs that could be made. It did so by reference to a period of time, and the rent paid in respect of that period of time, rather than by reference to a particular offence. If multiple offences were committed in the same period, section 44(2) operated to limit the rent repayable to a single period of time.
Where multiple overlapping offences had been committed, the application of section 44(2) could yield different periods applicable to different offences, which may in turn overlap and exceed 12 months. The UT noted that in the present case the aggregate relevant period for the offences was arguably in excess of 16 months, and the rent repayable under an RRO should reflect the same. Yet, this suggestion was rejected. It ran contrary to the presumption against double penalisation. The penalty under section 44 was draconian and could potentially deprive the landlord of the whole of the rent received for a relevant period. Section 44(3) would have been drafted using clear words to that effect if it was the parliamentary intention that more than 12 months’ rent could be repayable where offences overlapped. This was not the case.
It is therefore the case that 12 months’ rent is the maximum which a landlord can be ordered to repay on an application for an RRO, irrespective of the number, timing or duration of the offences committed.
Elizabeth Dwomoh is a barrister at Lamb Chambers
