27th October 2022
If a landlord has committed a “relevant offence” under the Housing and Planning Act 2016 , the First-tier Tribunal (FtT) can make a rent repayment order (RRO). An RRO can require a landlord to repay a specified amount of rent to tenants, or to the local authority if rent has been paid by way of universal credit. Whilst it is not necessary for the landlord to have been convicted of the offence in question, the FtT must be satisfied beyond reasonable doubt (i.e. the criminal standard of proof) that a specified offence has been committed.
An RRO is commonly obtained when a landlord has operated a property without the appropriate statutory licence. It can require the repayment by the landlord of up to 12 months’ rent. In two recent rent repayment order case appeals (heard together), Acheampong v Roman & Ors and Choudhury v Razak and Paridaans , the Upper Tribunal (Lands Chamber) (UT) provided guidance on the factors the FtT will need to consider when deciding the level of an RRO.
The UT confirmed the correct approach to determine the amount of an RRO is:
Walker Morris is seeing an increasing number of claims for RROs being made by tenants on the basis their landlord has failed to obtain the required licence[s] for the property. Crucially, ignorance is no defence: it does not matter if the landlord is unaware of the need to obtain a licence.
Whilst 100% RROs are generally reserved for the most serious cases, it is not uncommon for the FtT to order professional landlords to repay 80-90% of rent for the relevant period.
Regulatory compliance and responsible property management is therefore now more important for professional landlords than ever before.
Mr Choudhury let a self-contained basement flat to two tenants in the London Borough of Hammersmith and Fulham. The area required a Selective Licence for any rented house or flat. He admitted failing to obtain a licence for the flat. The tenants sought repayment of the full rent paid for 12 months (£18,000).
Mr Acheampong let a flat in a purpose built block to four tenants in the London Borough of Haringey, which operates an Additional Licensing scheme for houses in multiple occupation. The Tribunal was satisfied that Mr Acheampong had failed to obtain the requisite licence. The total amount of rent claimed by the tenants was £15,005.
The FtT made RROs in each case. Both landlords appealed against the amount they were required to repay to the UT.
Both appeals succeeded to the extent that the FtT’s decision as to the amount of the rent repayment order was set aside. The UT ordered Mr Choudhury to repay £12,600 to his tenants. The level of Mr Acheampong’s RRO is yet to be decided.
Walker Morris’ Housing Management & Litigation team comprises specialist lawyers experienced in advising landlords on statutory licensing requirements for their properties. We also regularly and successfully represent landlords who are served with applications made by tenants for RROs and on appeals to the UT.
 such as licensing offences (under the Housing Act 2004 or Housing and Planning Act 2016), illegal eviction, failure to comply with an improvement notice, breach of a banning order, or other specified offences
  UKUT 239 (LC)
 It is for the landlord to supply evidence of these. If precise figures are not available, the FtT can make an informed estimate
 Relative seriousness can be assessed by reference to the applicable maximum sentences on conviction. This consideration also involves assessing what proportion of the rent, after deduction for any utilities, is a fair reflection of the seriousness of the offence? That figure is then the starting point/the default penalty in the absence of any other factors