Rent Repayment Orders are very new legislation. There are only a few short sections of the Housing And Planning Act 2016 that detail the entirety of how they operate. Consequently, there are a significant number of precedents that have drastically affected how this new legislation is interpreted by the Tribunal.
This list is current and correct as of 23 November 2021. It is by no means exhaustive, as there are over 20 case precedents that are regularly referenced by JFT. However, these are the ones that are very important for tenants to be aware of.
Rakusen v Jepsen
This is a case that was determined in the Court of Appeal, and JFT are hoping it gets permission to be appealed to the UK Supreme Court.
It clarifies that only a tenant’s immediate landlord can be named as the Respondent for RRO proceedings. This is usually the name that appears on the tenancy agreement, but there is a correlation between landlords who operate unlawfully, and those who may not put the right name on the contract.
If the name on your contract appears to be an estate agency, or doesn’t match the name on the land registry, it will often be appropriate to make a Rule 20 Application. This is a request for the Tribunal to order parties to disclose information relevant to the proceeding. A good starting point is to apply for the Tribunal to direct all the people who could be your landlord to share copies of the agreements between themselves. This can help make sure you have named the appropriate immediate landlord.
If the landlord you name as Respondent can prove they are not the immediate landlord, then at the end of the proceedings you will fail and not have an RRO awarded.
Williams v Parmar & Ors
This precedent details the evaluative exercise the First-tier Tribunal is expected to carry out to assess how much of the rent to award.
The seriousness of the offence is a significant factor, therefore, it may be helpful to list the legislative breaches the landlord has committed with respect to:
- Fire Safety
- Property Conditions
- Management Regulations
- Gas Safety legislation
- Energy Performance legislation
- Electrical safety legislation
- Repairing obligations
These factors should be tied to published statistics on the risks to life for those living in such properties, along with other reports and papers on the PRS that show how these issues are linked to negative physical and emotional health outcomes.
Williams v Parmar & Ors also makes it clear that the factors referenced in the Government Guidance for Local Authorities for Rent Repayment Orders are factors to be addressed to the Tribunal.
Without putting forward a compelling case based on these factors, a tenant may win the RRO, but only receive a tiny amount of the rent applied for.
Opara v Olasemo
Often a landlord’s barrister will argue that there can be some doubt over certain aspects of the case that are required to be proved to the Criminal Standard for an RRO to be awarded. Common examples may be:
- Stating that there is not sufficient proof that a property address is in a particular local authority
- Stating that the lack of a name on bank statements means there is doubt regarding whether an Applicant paid any rent
- Stating that the lack of other occupants of the property being part of the proceedings raises some doubt over whether the property was really occupied as a House of Multiple Occupation, and therefore, no RRO can be awarded
This is particularly problematic for unrepresented tenants, as they are facing an individual who has made a career out of these types of argument. Indeed, this may well be what occurred in the First-tier Tribunal in Opara v Olasemo.
Fortunately, on appeal, the decision was overturned, and the final paragraph of the Upper Tribunal’s decision seems to have been designed to be quoted in proceedings. I copy the final paragraph of the decision below:
46. I add a final observation. The FTT in its decision in this case was, I think, over-cautious about making inferences from evidence. For a matter to be proved to the criminal standard it must be proved “beyond reasonable doubt”; it does not have to be proved “beyond any doubt at all”. At the start of a criminal trial the judge warns the jury not to speculate about evidence that they have not heard, but also tells them that it is permissible for them to draw inferences from the evidence that they accept. In this case there were obvious inferences to be drawn from the evidence, both about the eviction and about the circumstances of the other tenants. It may be that the FTT lost sight of those inferences and set the bar of proof too high. I say that in the hope that it is of assistance for the future.
Willow Court Management (1985) Ltd v Alexander
The First-tier Tribunal has a high threshold for either party to be able to recover their legal costs from the other party. The test that the Tribunal should use is detailed in Will Court Management (1985) v Alexander. It is why it is usually not a credible threat when the other side says that a tenant may have to pay for their costs.
It is hard to flesh out this case precedent without a very long explanation, so it perhaps best to say that there is plenty of commentary on this case online which is broadly helpful and accurate.