Flat 3 Victoria Chambers, Luke Street, London EC2A 4EE ((Housing) Act 2004 and Housing and Planning Act 2016 - Rent repayment orders) -[2022] UKFTT LON_00AM_HMF_2021_0303- (20 June 2022)

Key Facts

Issues

• The second key issue was calculating the rent repayment amount, referencing precedents like Aytan v Moore and Wilson v Arrow. The tribunal considered the respondent's conduct (acknowledging the offence but claiming lack of awareness), the property's conditions (fire safety deficiencies, pest infestation), and the financial circumstances (no evidence of hardship despite multiple properties). Applying the principle from recent caselaw, the tribunal concluded a 10% deduction from the total rent paid was appropriate, balancing the seriousness of the offence against the respondent's efforts to address issues and the property's partial compliance with safety standards.
• The primary issue was whether the respondent, as the person with control or management of the property, committed an offence under Section 72(1) of the 2004 Act by operating an unlicensed HMO. This arose because the London Borough of Hackney implemented an additional licensing scheme in October 2018, reducing the number of occupiers required to classify a property as an HMO from five to three. The respondent acknowledged the property met the HMO criteria during the relevant period but argued ignorance of the licensing requirement. The tribunal determined, beyond a reasonable doubt, that the offence occurred during the time the applicants occupied the property.

Holdings

• The Respondent is required to reimburse the Applicants the £300.00 Tribunal fees paid, as the Applicants were not responsible for the costs. This determination aligns with the principle that the Respondent, having committed the offence, should bear the financial burden of the legal process.
• The Tribunal made Rent Repayment Orders against Michael Ginn, requiring repayment of £1,485.00 to Harvey Filsell, £1,890.00 to Jack Whittaker, and £1,620.00 to Zane Verna. A 10% deduction was applied to the total rent paid during the period of the offence (10th September 2021 to 9th December 2021) due to serious health and safety issues, including a prolonged mouse infestation and inadequate fire safety measures. The Tribunal concluded that the Respondent, despite acknowledging the legal requirement for an HMO licence, failed to act promptly to resolve the issues, which posed risks to tenants.

Remedies

• The Tribunal ordered the Respondent to repay the following amounts to the Applicants by 15th July 2022: £1,485.00 to Harvey Filsell, £1,890.00 to Jack Whittaker, and £1,620.00 to Zane Verna. The orders were issued under Section 43 of the Housing and Planning Act 2016 for managing an unlicensed HMO.
• The Respondent is required to repay the Applicants £300.00 in Tribunal fees by 15th July 2022, provided a written authority signed by all three Applicants is submitted to him. This follows the Tribunal's determination that the Applicants should not bear the cost of the fees.

Monetary Damages

Legal Principles

Precedent Name

• Wilson v Arrow and others
• Williams v Parmar & others
• Aytan v Moore and others
• Kowalek v Hassanein Ltd.
• Vadamalayan v Stewart

Cited Statute

• Housing and Planning Act 2016
• Housing Act 2004

Judge Name

• Appollo Fonka
• Bruce Edgington

Passage Text

• 49. As we have all the relevant information we can substitute the Tribunal's own decision. In doing so we wish to make it clear that it is not appropriate for a tribunal to indulge in a fine-grained examination of every aspect of the parties' conduct, which would be disproportionate, nor in a detailed comparison of one landlord with another, which is unlikely to be accurate. The FTT must weigh the evidence and make a balanced decision. However, that exercise need not be a detailed forensic exercise as long as all relevant circumstances are taken into account and the outcome falls within the reasonable range of responses available to the Tribunal.
• 30. In this case the Respondent seems to be very similar to the landlord in Wilson, although in this case, the fire safety features were not missing completely. There was an alarm and smoke detector in the lounge although there were none anywhere else and there were no fire doors. Ms. Sherratt tried to introduce evidence about the layout of the flat but the Tribunal did not consider this to be particularly relevant. The most serious problem is in respect of the rat/mouse infestation. The fact that efforts were made to resolve the situation is noted but despite a number of visits to the property from the managing agents and others, the situation was not speedily resolved and the Tribunal does consider that this is serious.
• 32. In all the circumstances, and taking the relevant caselaw into account, it is this Tribunal's determination that the deductions should be 10% as this case is more like the Wilson case than the Aytan one. Although there was a fire alarm and a smoke detector at the property and the Respondent did take some action to resolve the rat/mouse infestation, it was clearly serious because it was a risk to health and the Tribunal considers that a reasonable landlord faced with that problem would have ensured that emergency action was taken to remove it.