Court report: 03/02/2021 @ The Upper Tribunal Lands Chamber
This was an appeal following the decision of Judge Nicholas Nicol at the First-Tier Tribunal Property Chamber made back in June 2020. That hearing concerned an application made by four tenants of a property in Malden Crescent, London NW1, for the repayment of rent following alleged breaches of the law.
At the lower tribunal hearing the Landlord Ms Hannah James, 39, of Lanark Square, London denied the breaches and issued a counterclaim for “legal costs, damages for waste and unpaid rent”. The counterclaim was described as “unevidenced” and dismissed.
Judge Nicol ultimately agreed with the applicants and was particularly scathing about the respondent, Ms James, stating:
In the Tribunal’s opinion, she has behaved appallingly, lying to the Applicants, the local authority and the Tribunal (possibly even to those who called themselves her friends) and knowingly committing criminal acts without any apparent reluctance or remorse.
It is even worse that her version of events was so lacking in credibility, suggesting she thought it would be easy to escape her liability and that the Tribunal would be credulous enough to swallow such flimsy excuses.
One of the allegations concerned the failure of Ms James to have licensed the property as a House of Multiple Occupation (“HMO”), a requirement when ‘3 or more persons comprising 2 or more households’ live in a residence.
The respondent had told the tribunal that she did not need a license and sought to rely upon a document entitled “Confirmation of Family Status” which claimed that the four tenants “accept and define themselves as family.” The tribunal held that Ms James, who purported to be a lawyer, had fabricated the letter to “avoid the HMO regime“.
The tenant’s allegation of harassment and an allegation of unlawful eviction were also both successful; despite the police assisting with the latter, an action criticized by the tribunal:
“Rather than seeking to address a potentially unlawful eviction, the police proceeded to facilitate it … it is difficult for the Tribunal to understand why they should think that it is necessary to enable an actual crime in order to avoid a potential crime. The three Applicants were the ones with the right to occupy the property but the police decided that the Respondent should be the one to stay.”
The appeal concerned the decision of Judge Nicol to only award a Rent Repayment Order (“RRO”) of circa £28,720 in relation to the HMO offence and nothing for the other two. The Upper Tribunal was told that a RRO was capped to a maximum of rent paid over a 12-month-period.
Ms Francesca Nicholls, appearing on behalf of the tenants and instructed by Flat Justice, submitted that a rent repayment order should have been made for each proven offence, vastly increasing the tenants award.
Ms Nicholls explained the development of the relevant legislation which she said had gone from a “largely restorative” angle in the Housing Act of 2004 to a “punitive” one as per the case of Vadamalayan v Stewart [2020] UKUT.
Only being able to impose an order capped to the maximum of 12-months-rent would offer “rogue landlords impunity for committing a range of offences” she told the court. The Upper Tribunal Judge Martin Rodger QC interjected by saying RRO’s are “not the only tool in the deterrent box” and could be viewed alongside penalties imposed by the civil court system. Ms Nicholls contended that by allowing multiple RRO awards this would allow claimants greater access to justice through the tribunal system and not “the potentially slow and resource intensive” civil courts.
Mr Nicholas Towers, counsel for the respondent Ms James, resisted the application. He explained to the court that a Rent Repayment Order should be just that – a repayment of rent. Submitting that “Parliament chose to use the word repayment” he then cited the case of Rakusen v Jepsen [2020] UKUT which held that “the essence of a repayment is that it is a sum paid back”.
Mr Towers explained that being ordered to pay 12-months-rent as a penalty was already a very high amount, equal to some 5200% of weekly earnings. He drew a parallel to the maximum weekly fine issued in the criminal courts, which he said was 600%. Allowing a second Rent Repayment Order to be imposed over the existing one in this case would mean the award increasing from £28k to £56k, it is difficult to see how parliament could have intended that he suggested.
Tribunal Judge Martin Rodger QC concluded the hearing by apologising about the technical difficulties that had plagued the appeal, and reserved judgement to be handed down in writing. It is understood Ms James intends to apply for permission to appeal.
UPDATE: Appeal Dismissed and permission to appeal refused
Ms Rosa Ficarra, Ms Valentina & Marilena Balistreri -vs- Ms Hannah James
Case Ref: RRO/13/2020
UPPER TRIBUNAL LANDS CHAMBER
Cloud Video Platform (CVP)
Before: Martin Rodger QC, Deputy Chamber President
Wednesday, 03 February 2021
At 10:30 AM
SUBSTANTIVE HEARING
Mouse in the Court 