For the small band of brothers that deals with rent repayment order cases especially in the context of HMO cases Awad v Hooley [2021] UKUT 0055 (LC) is a further dissection of the complexities of section 44 of the Housing and Planning Act 2016 and the way the Tribunal should deal with its discretion.
One hopes at the very least that this case will put to bed any hope that chutzpah claims will succeed with full RRO’s given out (or something approaching full RRO’s) like smarties at a party. In Awad the tenant was several thousand pounds in arrears, had been by all accounts a pretty poor tenant and nevertheless appealed the decision to award her only a 25 % RRO against a non-professional landlord following some accounting acrobats that Ken Dodd would have been proud of.
The highly experienced Upper Tribunal saw through this and upheld the decision of the First Tier Tribunal in an extremely thorough and detailed judgement. As the Upper Tribunal pointedly put it:
The Tribunal will not interfere with that discretion unless it was exercised on a wholly incorrect basis or the FTT reached a conclusion outside the range of reasonable decisions open to it.
The baseline remains a proper analysis of the conduct of the parties and whether any relevant offence has been committed with the margin to be afforded to First Tier Tribunals a high one.
The Upper Tribunal noted that this is not the end of current spate of RRO litigation especially with Council’s finding them useful tools with which to deter landlords. The Tribunal concluded:
I agree with that analysis. This appeal cannot be the last word either. It is no more than a useful example of an unimpeachable exercise of discretion on the part of the FTT, and says nothing further about the amount to be awarded in the absence of anything that weighs with the FTT under section 44(4). The only clue that the statute gives is the maximum amount that can be ordered, under section 44(3). Whether or not that maximum is described as a starting point, clearly it cannot function in exactly the same way as a starting point in criminal sentencing, because it can only go down; however badly a landlord has behaved it cannot go up. It will be unusual for there to be absolutely nothing for the FTT to take into account under section 44(4). The statute gives no assistance as to what should be ordered in those circumstances; nor can this Tribunal in the absence of a suitable appeal.
We will need to wait and see what the next round of RRO litigation gifts us. The eyewatering levels of money wanted by tenants in RRO cases especially from London HMO’s means this is not an issue which will go away quickly.
Julian Hunt
March 19th 2021