Anthony Gold

Get in touch

020 7940 4060

  • People
  • Insights
  • What to Expect
  • Contact Us
Anthony Gold
  • Services
    • Housing And Property Disputes
      • Property Disputes
      • Leasehold Services
      • Services For Commercial Landlords, Tenants And Agents
      • Services For Residential Landlords And Agents
      • Housing And Tenancy Issues
      • Judicial Review
    • Injury And Medical Claims
      • Life Changing Injuries
      • Medical Claims
      • Personal Injury
      • Child Abuse
    • Family And Relationships
      • Starting Relationships
      • Ending Relationships
      • After Relationships End
      • Useful Contacts
      • Religious & Cultural Issues
      • Family Law FAQs
      • Family Dispute Resolution
      • Modern Families And Surrogacy Arrangements
    • Conveyancing, Property & Business Services
      • Business Agreements
      • Business Disagreements
      • Commercial Property
      • Commercial Property Disputes
      • Leasehold Services
      • Residential Property
    • Wills, Estates & Court Of Protection
      • Wills, Trusts And Estates
      • Claims Against Trusts And Estates
      • Capacity And Court Of Protection
    • Dispute Resolution & Employment Law
      • Personal Claims
      • Professional Negligence
      • Business Disagreements
      • Claims Against Trusts And Estates
      • Employment
    • People
    • Insights
    • What to Expect
    • Contact Us
  • Get in touch

    020 7940 4060

  • Housing and Property Disputes
  • Injury and Medical Claims
  • Family and Relationships
  • Conveyancing, Property & Business Services
  • Wills, Estates & Court of Protection
  • Dispute Resolution & Employment Law
  • Property disputes
  • Ownership disputes and shares in property
  • Challenging the decisions of councils and public bodies
  • Rights of way, boundaries, covenants and easements
  • Party wall disputes
  • Leasehold services
  • Lease extension
  • Collective enfranchisement
  • Service charge disputes
  • Repairs to leaseholds
  • Right to manage
  • Services for commercial landlords, tenants and agents
  • Breach of covenant
  • Forfeiture and recovery of possession
  • Dilapidations and failing to repair
  • Lease renewals
  • Services for residential landlords and agents
  • Regulatory issues
  • Repossession
  • Agents (including letting agreements)
  • Housing and tenancy issues
  • Repairs
  • Repossession and eviction
  • Rehousing and homelessness
  • Judicial review
  • Life changing injuries
  • Brain injury
  • Spinal cord injury
  • Amputation
  • Psychiatric injury
  • Fatal injuries and inquests
  • Medical claims
  • Surgical claims
  • Non-Surgical Claims
  • Birth injury
  • Child health and paediatrics
  • GP and primary care treatment
  • Private healthcare
  • Personal injury
  • Road traffic accidents
  • Accidents abroad
  • Accidents at work
  • Faulty products
  • Public liability and other accidents
  • Child abuse
  • Child abuse
  • Starting relationships
  • Pre nuptial agreements
  • Pre civil partnership and same sex relationship agreements
  • Cohabitation and living together agreements
  • Property ownership agreements
  • Ending relationships
  • Divorce and separation
  • Ending a civil partnership
  • Ending cohabitation
  • Agreeing child arrangements
  • Agreeing finance and assets
  • International arrangements
  • After relationships end
  • Abduction and leave to remove children
  • Changing and challenging parenting agreements
  • Changing and challenging financial agreements
  • Grandparents’ rights
  • Useful Contacts
  • Financial planners
  • Referral to Pension Actuaries and Pension on Divorce Experts (PODEs)
  • Tax Specialists
  • Financial Neutrals
  • Counselling
  • Conveyancing
  • Wills
  • Religious & cultural issues
  • Jewish family law
  • Islamic family law
  • Family Law FAQs
  • Children FAQs
  • Cohabitation Agreement FAQs
  • No-Fault Divorce and Separation FAQs
  • Financial Issues FAQs
  • Pre-Marital Contracts FAQs
  • Family Dispute Resolution
  • Roundtable Meetings
  • One Solicitor Solution
  • Mediation
  • Collaborative Practice
  • Arbitration
  • Second Opinions
  • Private FDR’s
  • Early Neutral Evaluation (‘ENE’)
  • Modern Families and Surrogacy Arrangements
  • Domestic Surrogacy
  • International Surrogacy
  • Business agreements
  • Business advice
  • Employment
  • Mergers and acquisitions
  • Supplier contracts
  • Business disagreements
  • Commercial property
  • Commercial Sale and Purchases
  • Commercial loans and mortgages
  • Property Investment: plot developers & plot buyers
  • Auction: sales and purchases
  • Commercial advice for landlords and tenants
  • Planning advice
  • Mortgage debentures and securities
  • Commercial property disputes
  • Breach of covenant
  • Dilapidations and failing to repair
  • Forfeiture and recovery of possession
  • Lease renewals
  • Leasehold services
  • Lease extension
  • Collective enfranchisement
  • Service charge disputes
  • Repairs to leaseholds
  • Right to manage
  • Residential property
  • Residential Sale and Purchases
  • Property Investment: plot developers & plot buyers
  • Remortgages
  • Auction: sales and purchases
  • Ownership matters and transfers
  • Wills, trusts and estates
  • Making a will
  • Applying for probate
  • Distributing the estate
  • Arranging lasting power of attorney
  • Trust advice
  • Tax planning and advice
  • Claims against trusts and estates
  • Contesting a will
  • Losses caused by trustees
  • Capacity and court of protection
  • Appointing a deputy
  • Removing a deputy
  • Arranging lasting power of attorney
  • Gifts and legacies
  • Managing assets under a deputyship
  • Care issues
  • Removing lasting and enduring power of attorney
  • Special educational needs
  • Capacity and court of protection
  • Personal claims
  • Debt recovery
  • Ownership disputes and shares in property
  • Civil and commercial mediation
  • Building disputes
  • Professional negligence
  • Professional Negligence
  • Property Fraud
  • Investment Fraud
  • Business disagreements
  • Building disputes
  • Civil and commercial mediation
  • Claims against directors
  • Contract disputes
  • Debt recovery
  • Directors personal liabilities
  • Employment
  • Professional negligence
  • Claims against trusts and estates
  • Contesting a will
  • Losses caused by trustees
  • Employment
  • Employment
  • Unfair or Wrongful Dismissal
  • Settlement Agreements
Anthony Gold > Blog > Rent Repayment Orders Part 2 – The Tribunal’s approach in making RROs
Tamanna Begum

Tamanna Begum

tamanna.begum@anthonygold.co.uk

Share
  • July 17, 2020
  • Blog
  • By  Tamanna Begum 
  • 1 comments

Rent Repayment Orders Part 2 – The Tribunal’s approach in making RROs


Previously in the first part of this series, we discussed the basis of rent repayment orders and when an application could be made. This blog discusses the Tribunal’s discretion and the factors taken into account when deciding the level of the award.

Tenant’s Application  

The Tribunal’s approach in rent repayment order proceedings differs depending on the person making the application and the alleged offence. For example, where an application is made by a tenant and it relates to a property licensing offence, then the amount of any rent repayment award would be at the discretion of the Tribunal. In exercising their discretion, the Tribunal will take into the statutory factors under section 44 (4) of the Housing and Planning Act 2016 (“the Act”). We discuss these factors in further detail below.

Where a landlord is convicted of any offence other than a property licensing one, then the Tribunal does not have to apply the statutory factors and must order the maximum amount unless it is unreasonable to do so due to exceptional circumstances.

Local Authority Application

If the Applicant is the local authority and the landlord is convicted of one of the relevant offences or has received a financial penalty in respect of the offence (with no prospect of appeal against the penalty), then the Tribunal must order the maximum amount  for the full ‘relevant period’, capped at 12 months’ rent, unless it is unreasonable to do so.

If a landlord is not convicted (or given a financial penalty), then different rules for the award apply to each of the offences. For example, where the application is made on the basis of an alleged unlawful eviction, harassment or violent re-entry, then the Tribunal will order the landlord to repay the rent paid 12 months preceding the date of the alleged offence.

In regards to an alleged property licensing offences, the award must relate to the rent paid during the period the landlord was committing the offence, not exceeding 12 months’ rent.

Government Guidance for Local Authorities

In addition, where a local authority makes the application, the Government has recommended in their guidance ‘Rent Repayment Orders under the Housing and Planning Act 2016’  that  local authorities take into account the following factors when considering how much rent they should seek to recover from a landlord. These include:

  1. Whether the rent repayment order would have a real economic impact on the landlord;
  2. Whether the order would deter the landlord from repeating the offence;
  3. Whether the order would dissuade others from committing similar offences; and
  4. If the landlord has obtained any other financial benefits as a result of committing the offence and if this can be removed.

A local authority is able to bring an RRO claim even if they have sought to impose a financial penalty for the same offence, meaning that it is therefore possible for a landlord to incur a double penalty.

Tribunal’s Award under a Rent Repayment Order

The Tribunal’s first step in deciding the amount of an RRO is to establish the ‘relevant period’.  The relevant period is provided for under section 44(2) of the Act which states that any RRO must relate to the amount of rent paid during the period, not exceeding 12 months, during which the landlord was committing the relevant offence.

Next, the Tribunal will consider the starting point of the financial award. It was recently confirmed in the case ofVadamalayan v Stewart and others (2020) UKUT 0183 (LC) that the starting point of any award under a rent repayment order is the full amount of the rent paid during the relevant period.

Previously, the general approach for Tribunals was to deduct any costs the landlord had incurred in maintaining the property during the relevant period. However, in Vadamalayan the Upper Tribunal confirmed that any expenditure incurred by the landlord for maintaining the property would not be deducted from the overall award as these were part of the landlord’s obligations under the tenancy agreement. However, the UT further went on to state that Tribunals can instead discount any payments made by the landlord towards utility bills as these are services provided by third parties and used by tenants at their own rate and enjoyment.

Where the Tribunal is not to award the maximum amount, the Tribunal must take into account statutory factors under section 44 (4) of the Act:

(a) the conduct of the landlord and the tenant;

(b) the financial circumstances of the landlord; and

(c) whether the landlord has at any time been convicted of an offence.

In Vadamalayan the Upper Tribunal’s decision appears to suggest that only these factors would be taken in to account, but the Act does state that these are factors which must ‘in particular’ be taken into account – which suggests that the Tribunal does still have a general discretion.

The Tribunal’s approach to rent repayment orders is not to merely compensate tenants for a landlord’s breach but to impose penalties on landlords who commit the relevant offences.

Conclusion

The Tribunal’s discretion in setting the amount an RRO has become more limited under the Housing and Planning Act 2016. They are still bound to take into account the factors under the section 44 (4) of the Act however, the recent case of Vadamalayan now prevents the Tribunal’s from deducting any additional costs incurred by a landlord other than utility payments. In most cases the starting point for RRO award will be the full rent paid during the relevant period and it may be difficult to persuade the Tribunal to make further reductions unless they fall clearly within the statutory factors.

In the last part of this series, we will talk about negotiation and out-of-court settlement.

*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.*

Tamanna Begum

Tamanna Begum

tamanna.begum@anthonygold.co.uk

Get in touch

Call, email or use a contact form – whichever suits you. We’ll let you know the best person to help you get started.

Call or Email

020 7940 4060

mail@anthonygold.co.uk

Comment

Add your comment

We need your name and email address to make sure you’re a real person. We won’t share your email address with anyone else or send you spam. Please complete fields marked with *.

One thought on “Rent Repayment Orders Part 2 – The Tribunal’s approach in making RROs”

  1. Guy Morris says:
    September 23, 2020 at 5:49 pm

    It might be helpful here, post-Vadamalayan, to consider the parts of Parker v Waller [2012] UKUT 301 (LC) which are still relevant for RRO awards. In particular, Parker ruled that a landlord’s conduct should only be considered where it related to the alleged offence (see § 39):
    “39. I do not think that conduct on the part of the landlord that is unrelated to the offence under section 72(1) that underlies the RRO could entitle the tribunal to increase the amount of the RRO above the level that would otherwise be justified.”
    By simple logic the same should also be true of tenants. Whereas one could argue that tenant conduct may contribute to offences such as illegal eviction or harassment (also RRO relevant offences), it is difficult to see how tenant conduct would impact a licensing offence. But it hasn’t stopped landlords arguing this and no doubt they will continue to do so.
    Nonetheless, for licensing offences tenant conduct is largely irrelevant and any reduction of an award in such cases based on irrelevant tenant conduct is likely to be unsafe: it is “reasonable in the circumstances” by the backdoor. Watch our blog for a forthcoming appeal on this.

    Reply

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

*

code

Related Services

  • Service charge disputes

  • Rights of way, boundaries, covenants and easements

  • Right to manage

  • Repossession

  • Repossession and eviction

  • Forfeiture and recovery of possession

  • Repairs

  • Party wall disputes

  • Ownership matters and transfers

  • Ownership disputes and shares in property

  • Dilapidations and failing to repair

  • Challenging the decisions of councils and public bodies

  • Building disputes

  • Breach of covenant

About the author

  • Tamanna Begum

Meet the team

  • Housing and Property Disputes

You might also like...

  • Introduction to Rent Repayment Orders: Guide for Landlords and Property Agents

  • A guide to Rent Repayment Orders and what they are

Contact Us

Request a Call Back

About Us

  • Accessibility
  • Compliance
  • Responsible Business
  • Equality & Diversity
  • History
  • Our Beliefs
  • List of LLP members

Careers

  • Trainee Solicitors
  • Vacancies

Social Media

  • Follow us on Twitter
  • Follow us on LinkedIn
  • Follow us on Instagram
  • View our YouTube channel

Online Payments

  • Payment page through Worldpay

Accredited by

Lexel Parctice
76000Award

Copyright © Anthony Gold Solicitors LLP. All rights reserved. Anthony Gold Solicitors LLP is a limited liability partnership registered in England and Wales with registered number OC433560 and is authorised and regulated by the by the Solicitors Regulation Authority with registration Number 810601