Can a tenant recover more than twelve months’ rent in a rent repayment order?

In the Upper Tribunal case of Rosa Ficcara  & Ors v- Hannah James, the Deputy President of the Lands Chamber, Martin Rodger QC, considered whether tribunals could award more than 12 months’ rent where the landlord was found to have committed multiple offences.

Background

In this case, the Applicants claimed that their landlord had committed three offences relating to: having control or managing an unlicensed house in multiple occupation pursuant to section 72(1) of the Housing Act 2004 from 15 March 2018 until 28 July 2019, harassment, and unlawful eviction pursuant to sections 1(3), 1(3A) and 1(2) of the Protection from Eviction Act 1977 which took place on 28 July 2019. They asked the First-tier Tribunal (FtT) to make three separate rent repayment order.

The FtT was satisfied that the landlord had committed these offences and made an RRO for the maximum amount of 12 months’ rent. The FtT held that they did not have power to make separate RROs for all the alleged offences as it would exceed the amount of rent paid by the Applicants. The tribunal nevertheless suggested that multiple offences could be considered as “relevant conduct” under section 44(4) of the Housing and Planning Act 2016 (“the Act”) when determining the level of award.

The Upper Tribunal’s Decision

The Applicants appealed to the UT on the basis that a separate order of 12 months’ rent should have been made in respect of each of the offences.

The UT dismissed the appeal and upheld the FtT’s decision. It held that a RRO award must relate to the rent paid in respect a particular period of time and the tribunals could not award more than 12 months’ rent as it was not permitted by the Act.

The Act does not envisage a landlord being ordered to pay  multiples of the same sum even if the landlord was found to have committed multiple offences across different relevant periods.

In dismissing the appeal, the Martin Rodger QC went on to say the following:

“Section 44(3) sets the limit. The amount a landlord may be required to repay in respect of a period 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. It is significant that the limit is expressed 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 a number of offences are committed in the same period, the application of section 44(2) will result in a single period of time, rather than multiple periods of time each of the same duration and commencement. The amount which may be made the subject of a rent repayment order must relate to the rent paid by the tenant in respect of that period.”

He also considered the wording in section 44(2) of the Act and what Parliament intended tenants to be awarded for RROs, by comparing section 44(2) with the provisions in section 214(4) of the Housing Act 2004 relating to tenancy deposits which states ‘the court must order the landlord to pay the tenant ‘a sum of money not less than the amount of the deposit and not more than three times the amount of the deposit’.  His view was that that if Parliament had intended Applicants to recover multiple awards under an RRO, it would have used similar language to section 214 of the Housing Act 2004 in section 44(3).

The UT acknowledged that the wording of section 44 did not provide further guidance on multiple offences or periods, but held that the award must not exceed the rent paid during the 12 months period.  Even where there are multiples offences and the ‘period’ of rent being reclaimed might cover more than a twelve-month period of time, the judge held that only a maximum of twelve months rent could be reclaimed. If Parliament intended tenants to recover more than 12 months’ rent, then it would have been expressly provided for in section 44(3).

The UT also noted that an RRO is a ‘draconian penalty’ as landlords could be made to repay all of the rent received during a relevant period. Landlords could also face further financial penalties from local authorities in relation to property licensing and a tenant could also make a civil claim for damages. This therefore means a landlord would be most at financial loss in RRO claims.

What does this mean

As such, 12 months is the maximum amount a landlord could be ordered to pay regardless of the number and timing of the alleged offence. Tenants are therefore precluded from claiming more than 12 months’ rent for multiple offences and they can only recover the rent paid over the 12-month period and not multiples of the same sum. This decision appears to prevent tenants from ever recovering more than 12 months’ rent under a rent repayment order. However, if more than one offence has been committed, this is likely to lead to a higher award – the UT noted that tribunals still have a wide discretion when setting the amount of any award,  and that if the landlord has committed other offences, this would be a factor weighing towards a higher award for the tenant. This means that there is still some value to tenants in demonstrating that their landlord has committed multiple offences.

*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.*