What tenants need to know about Rent Repayment Orders

Rent repayments orders (RROs) were introduced in the Housing Act 2004. They enable tenants to reclaim rent paid during a tenancy where their landlord has failed to obtain a property licence. Applications are made to the first tier tribunal property chamber. I have previously provided a three-part guide on rent repayment orders which can be accessed here. Local authorities are also able to apply for an RRO to reclaim housing benefit paid.

The Housing and Planning Act 2016 (HPA) makes significant changes to RROs. These changes are due to come into force in April 2017 and will widen the scope of RROs as well as make it easier for tenants to make applications to the tribunal. The most important changes that tenants need to be aware of are as follows:

1. RROs now apply to a number of different housing offences

Under the Housing Act 2004, RROs only applied where a landlord who was required to have a residential property licence failed to obtain one. Most landlords of large houses in multiple occupation (HMOs) are required to obtain a property licence but also landlords of non-HMO accommodation may be required to have a licence, depending on their local authority’s licensing schemes. Londoners can check the licensing schemes in place within their borough by clicking here.

In addition to failing to license offences, the HPA introduces 5 other offences where RROs will now be available. These are:

• Violent re-entry
• Unlawful eviction or harassment
• Breach of improvement notice
• Breach of prohibition order
• Breach of banning order

Banning orders are a new enforcement measures introduced by the HPA designed to target the worst landlords by banning them from letting and managing property. More information on banning orders can be accessed here.

Significantly tenants who have been unlawfully evicted will now have an additional remedy against their landlord. Currently tenants who are illegal evicted can claim compensation from their landlords in the county court. Now they will also be able to ask the tribunal to make an order that their landlords pay back some of the rent they paid.

2. Tenants wishing to apply for an RRO are no longer dependent on the local authority prosecuting their landlord

Under the Housing Act 2004, tenants were not able to make an application for an RRO unless the local authority had first obtained a criminal conviction against the landlord in the magistrates’ court or had obtained their own RRO for the return of housing benefit.

This restriction on tenant applications has been removed by the HPA 2016. Tenants can now apply straight to the tribunal for an RRO and no longer have to rely on their local authority taking action first. However, for an RRO to be made tenants will need to satisfy the tribunal, beyond reasonable doubt, that their landlord has committed one of the above offences. Tenants will still need the help of local authorities in proving their case to this high criminal standard which is where the following provision is useful:

3. Local authorities are encouraged to help tenants apply for an RRO

The HPA 2016 states that a local authority may help a tenant apply for an RRO. This could be, for example, by giving advice or by conducting proceedings on the tenant’s behalf. Tenants are likely to need the assistance of local authorities in making applications for RRO, particularly in cases such as breach of improvement notice or breach of banning order where the tenants may have little of their own documentary evidence to prove that an offence has been committed. Local authorities will also need the co-operation of tenants in proving offences in their own RRO applications, so this provision reinforces the benefit to local authorities and tenants of working together in preparing their cases. In certain circumstances, where rent is paid partly by way of housing benefit and partly out of the tenant’s own funds, it may be advantageous for the local authority and tenant to make a joint application for an RRO.

Other comments

There are still strict time limits that apply to tenant RRO applications: tenants must make their applications within 12 months of their landlord committing an offence. There is also a cap on how much rent can be reclaimed. Tenants can never be awarded more than 12 months’ rent and, in practice, may obtain far less than this. In assessing the level of the RRO, the tribunal will consider the offence, whether the landlord has already been convicted or received a financial penalty from the local authority and in certain cases will also look at the landlord’s financial position and conduct and also the conduct of the tenant.

Overall the changes implemented by the HPA are helpful to private sector tenants providing them with additional remedies if their landlords fail to comply with housing law. Many local authorities are already assisting tenants with RROs by providing information packs on how to make applications to the tribunal. Further help for tenants from local authorities should be forthcoming with the implementation of these new provisions next spring.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*