Upper Tier Tribunal Success in HMO Rent Dispute

Alice Richardson

In Wilson v Campbell [2019] UKUT 363 (LC) the Upper Tribunal allowed an appeal by a tenant against the decision of the First Tier Tribunal (Property Chamber) to grant a Rent Repayment Order of £1.

Trinity Housing barrister Alice Richardson represented the tenant in the appeal pro-bono.

The respondent landlord had granted the appellant an Assured Shorthold Tenancy of a room in a House in Multiple Occupation (“HMO”) in Newcastle.

In November 2018 the appellant applied to the First-tier Tribunal (“the FTT”) for a rent repayment order pursuant to s.41 of the Housing and Planning Act 2016 on the basis that the property was an unlicensed HMO and the respondent had accepted a simple caution from Newcastle City Council for an offence under s.72(1) Housing Act 2004.

The appellant sought the maximum repayment of rent of £4,100 but, determining the application on the papers, the FTT awarded her just £1.

In reaching its decision the FTT concluded the that appellant had been “less than forthright” about her professional role as an Environmental Health Officer with the local Council and that “it would have been apparent … when she decided to rent accommodation at the Property that it fell short of licensing requirements”.

The FTT then concluded that she “chose to live in premises that fell short of legal requirements, possibly with the intention to apply for a rent repayment order in future”.

The appellant appealed to the Upper Tribunal. She argued first that the FTT had made an error of law in taking into account her professional role and her failure to tell the FTT about it. In Parker v Waller [2012] UKUT 301 (LC) the President had said, at paragraph 26, that only misconduct by the tenant might justify the reduction of an amount that was otherwise reasonable, and she argued that there was no misconduct here.

The appellant also argued that there was a breach of natural justice because she had been given no opportunity to explain why she did not mention her job in her application to the FTT; that insufficient weight was given to various factors relating to the offence itself (a category 1 fire hazard and poor condition of the property in addition to the fact that the respondent had served a notice to quit on the appellant when she had raised concerns about the property); and that the repayment amount was excessively low.

Determining the appeal on the papers Upper Tribunal Judge Elizabeth Cooke agreed with the appellant that there was a breach of natural justice. The FTT had made an adverse finding about her credibility and motivation without having conducted a hearing, and without giving her the opportunity to comment on what the respondent said about her or about why she did not mention her job to the FTT. It was not open to the FTT to reject her evidence without it being put to her in cross-examination and the procedure had not been a fair one.

The judge also held that there were significant concerns about other aspects of the decision. The FTT was swayed by the appellant’s failure to mention her job, her alleged knowledge that the house was unlicensed, and her alleged motivation for staying on. It was not clear that any of those factors amounted to misconduct and no consideration was given to that issue by the FTT.

Moreover, the FTT’s decision did not give adequate reasons for the reduction of the award to £1, and in the absence of any explanation it appeared that the appellant’s evidence of misconduct on the part of the landlord had been ignored.

The appeal was allowed on all the grounds and the matter remitted to the FTT for a re-hearing.

Alice was instructed by Elliot Kent of Shelter Legal Services.

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