19/01/2020

Rent Repayment Orders, criminal standard, and new evidence on appeal

Salva v Singh-Potiwal (HOUSING – HOUSE IN MULTIPLE OCCUPATION) [2019] UKUT 307 (LC)

This was the appeal of a First Tier Tribunal decision on Ms Salva’s application for a rent repayment order.

Ms Salva has a tenancy of a room in a property owned by Mr Singh-Potiwal from February 2017. According to Ms S, she was the fifth occupant at that point and there remained 5 occupants pretty much throughout.

In May 2018, Mr S-P sent her a text message, then an email requiring her to leave by 5 June or 12 June. Ms S left the property in May 2018.

Ms S applied for a Rent Repayment Order on three grounds:

  1. under section 72(1) of the Housing Act 2004 by being in control or management of an unlicensed house in multiple occupation (“HMO”) between October 2017 and May 2018,
  2. under section 1(2) of the Protection from Eviction Act 1977 by unlawfully evicting her, and
  3. under sections 1(3) and 1(3)A of the Protection from Eviction Act 1977 by harassing her.

October 2017 was the key date as from 1 October 2017 the Royal Borough of Greenwich introduced a new licensing scheme which meant that an HMO licence was needed even if there were only three occupiers

Mr S-P contended that he had applied for a licence in October 2017 (though without presenting documentary evidence of this), but that there were only 3 people living at the property during the relevant period, Further, Ms S was a licensee, not a tenant, Mr S-P was resident in the property, so giving notice in the way that he had was legitimate.

At first instance, the FTT held that it could not be satisfied, to the criminal standard, that any of the offences were made out.

It was not so satisfied in respect of any of the three offences. As to the HMO offence, it was not convinced by the appellant’s evidence about the number of people living at the house, nor by the evidence she produced from officers of the Royal Borough of Greenwich.

As to the alleged eviction, the FTT found that this was a tenancy not a licence; it noted that the tenancy agreement required four weeks’ notice and that the notice given by text on 8 th May 2018 giving her five weeks to leave the property was sufficient to terminate the agreement. In any event the applicant left before 5th June 2018. The FTT therefore was not satisfied that the respondent had committed an offence under section1(2) of the Protection from Eviction Act 1977.

As to harassment, the FTT said that it did not find either party’s evidence wholly persuasive. It accepted that the respondent’s behaviour had not been perfect but took the view that the appellant shared the blame for the breakdown in relations. Again, it was not able to be satisfied to the criminal standard of proof that an offence had been committed.

Ms S sought an appeal, initially from the FTT, where she presented new evidence obtained from Greenwich of the date on which Mr S-P applied for a licence. She also took issue with the finding on unlawful eviction. The FTT granted permission to appeal, which permission the Upper Tribunal found was only on the issues of the HMO licence, and the unlawful eviction.

On the unlawful eviction, the Upper Tribunal considered that the FTT decision – where it had found that Ms S was a tenant, but without making any finding on the nature of that tenancy was unhelpfully unclear:

The appellant in May 2018 was occupying her room in the property under a tenancy agreement dated 23 December (replacing an earlier agreement in similar terms). The agreement states at paragraph 2 “This agreement creates either a periodic agreement or an AST within Part 1 Chapter II of the Housing act 1988”, and describes itself under the heading “Term” as a “rolling contract up to 12 month” (sic). The FTT found at its paragraph 41 that the appellant was a tenant not a licensee, but made no finding about what sort of tenancy she held and made no mention of an assured shorthold tenancy. Nor does the FTT explain why it found that the respondent had given proper notice by his text of 8 th May. It may be that the FTT was convinced by the respondent’s assertion that he was living in the house, or by his assertion that it was not the appellant’s home, but if so the FTT does not say so and does not say why it accepted that evidence. So the findings about the tenancy and the notice are unclear.

However, it remained the case that there was no eviction, Ms S had left in May 2018. Mr S-P had not ‘unlawfully deprived’ her of the premises. Ms S suggested she had left because of the pressure applied by Mr S-P, but there was no appeal of the FTT findings on harassment, so the appeal must fail on the unlawful eviction.

On the failure to licence, Ms S had presented new evidence in the form of a letter from the Head of Environmental Health at the Royal Borough of Greenwich, explaining why contradictory information had been given to the appellant (at the FTT communications from Greenwich had stated both that Mr S-P had applied for a licence on 1 October 2017 and that he had applied for a licnece only on 21 May 2018.)

It seems that a new database had been used from October 2018 and there had been problems with data migration and transfer. She confirmed that the respondent applied for an HMO licence on 21 May 2018; that that application was incomplete; and that the application was accepted as complete on 29 June 2018. Hence the grant of the licence in August 2018

This evidence was accepted by the UT on the Ladd v Marshall principles. The evidence could not have ben obtained with reasonable diligence for the hearing. Indeed it had been obtained with some difficulty. The evidence was credible, and such that may have had a decisive import at the hearing.

(The FTT even appeared to have questioned Ms S’ attempts to obtain evidence from Greenwich at the hearing.

Further concerns arise from the FTT’s analysis of the evidence produced by the appellant. The FTT expressed doubt about the authenticity of the letters from Mr Hugill and Mr Turner; the respondent said that they might be fabricated, but the FTT did not explain why it found that suggestion credible. Nor is it possible to see what the FTT meant when it referred at paragraph 36 to “the question as to the Applicant’s motives in supplementing Mr Hugill’s letter with an exchange of emails with Mr Turner.” )

It remained that Ms S would have had to have satisfied the Tribunal as to the number of occupants. ON the FTT’s finding in that regard, the UT held:

What is clear is that the appellant’s evidence from the WhatsApp group was dismissed without analysis by the FTT; it may be that the FTT was persuaded by the respondent’s suggestion that it was fabricated, but it has not said so and has not said why. I find that relevant material was ignored.

The appeal was allowed on the licensing issue and remitted to the FTT for a rehearing.

Comment

This illustrates the difficulty of establishing the relevant offence to the criminal standard in RRO applications, and the importance of having the key evidence available to the Tribunal to make out each element of the offence for the relevant time period. The corollary of this is that the FTT’s decisions should ideally give reasons where some evidence is preferred over others, or where evidence is not accepted.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

4 Comments

  1. getrentbackblog

    A pro-bono appeal case conducted by Flat Justice. See here for blogs: https://getrentback.org/blog/2019/10/17/victory-for-nurses-rro-appeal-at-upper-tribunal/
    &
    https://getrentback.org/blog/2018/11/19/london-tribunal-hearing-15-11-2018-nurses-rro-case/

    Really the Tenant RRO Applicant had good evidence & the case should not have been lost. This evidence was vitiated by allegations from the R. There appear to have been arguments submitted by the R that accuse the A of forgery, effectively. These were not in the bundle received by the A. And this made us realise that there is a loophole here that is open to abuse, potentially by both sides. When bundles are submitted, the A & the R are asked to send a copy of their bundle DIRECTLY to the other party. It is then possible to send a different bundle to the Tribunal to that sent to the other side.

    We have written to the president of the FtT London suggesting that this loophole could be closed by the simple method requiring all parties to send all bundles to the Tribunal with an SAE for the other party; FtT then sends out one copy, chosen at random, in the SAE. Not much work; also insures more timely delivery. Flat Justice often gets R bundles after FtT gets theirs…. We wrote last October by post and email to FtT Presdient Siobhan McGrath: no reply to date.

    Due to return to FtT next month but S-P’s barrister is trying to go to Court of Appeal, so far refused by UT…

    Reply
    • Giles Peaker

      It is not a loophole. It is standard practice. If it comes to light at hearing that this is what a party has done, it should not go well for them, as it is a straightforward breach of the directions (even without the possibly deliberate attempt to mislead etc). The FTT should either adjourn briefly to allow consideration of the ‘additional’ documents, or not allow the party to rely on them.

  2. getrentbackblog

    sure

    Reply
    • Giles Peaker

      So, raise the issue at hearing! You aren’t going to get standard practice changed on the basis of a single case.

      As you found (at least partially, given the formulation of the grounds of appeal), it is a legitimate basis for appeal if it doesn’t happen. (I’m afraid the loss of the ‘harassment’ ground of appeal was down to you, it appears.)

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