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Smorgasbord: Updated s.21 flowchart, EPA prosecution costs and an unsuccessful RRO

Having realised a day late that the Section 21 validity flow chart needed updating to take into account the new 4 month notice period (and 8 month ‘use it or lose it’ period) for section 21 notices served on or after 1 June 2021 brought in by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 (see notes), I’ve just done it. It only added a couple of boxes and an additional page sequence, taking the whole flowchart to 15 pages. The updated flowchart can be downloaded in pdf or Word format here.

Simply for my sanity in doing this, section 21 can’t be abolished soon enough, but I suspect there will need to be another change to the chart at the end of September 2021.

On to something else that might become only of historic interest before long – costs in Environmental Protection Act nuisance prosecutions.

Taylor & Anor v Burton (2021) EWHC 1454 (Admin)

This was an appeal by way of case stated from North Staffordshire Magistrates’ Court’s decision that there was damp at the tenant’s property such as to amount to a statutory nuisance at the time the information was laid, that the landlord and managing agents were the persons responsible for the nuisance, and although the nuisance had been abated by the trial hearing, the tenant should have costs of £29,079.80 to be paid £14,539.90 each by the landlord and the agent.

The landlord and agent appealed. There were two main issues.

First

The justices erred in law by failing to give adequate reasons for their decision. In particular:
a. the justices failed to give any reasons for rejecting the Appellants’ submissions that they were not the persons responsible for the existence of the nuisance due to the Respondent’s failure to respond to requests for access to the premises to carry out works of repair; and
b. the justices failed to give any reasons for rejecting the Appellants’ specific challenges to the amount of costs claimed by the Respondent.

And – linked:

The justices erred in law in concluding that, for the purposes of s.82(12) of the Environmental Protection Act 1990, the Appellants were the persons responsible for the existence of the nuisance at the material time in circumstances where there was unchallenged evidence that the Respondent had failed to respond to the Appellants’ requests for access to the premises to carry out works of repair.

This was dealt with briefly by the High Court. There had been contested witness evidence on both sides heard by the Court, and the landlord had argued extensively that they were not liable for the nuisance, blaming the tenant. The Mags cout not be said to hve overlooked the defence, instead it was rejected.

There was sufficient evidence before the Mags for them to conclude that the landlord had not done ‘all that is reasonable’ to abate the nuisance. On the sufficiency of reasons given for finding the landlord responsible, the High Court observes, a little tartly:

The Magistrates do not have to give a commentary on the evaluative exercise. The explanation of verdict in proceedings of a criminal nature may be discharged by a demonstration that the Magistrates have satisfied themselves as to the ingredients of liability (R oao McGowan v Brent Justices (2001) EWHC (Admin) 814). Where a disappointed litigant ‘cannot understand why they lost’, care is needed: that may signal uncertainty or obscurity as to basis, or it may signal vehement disagreement as to merits. Only the former is a proper symptom of legal error. The landlords may not find themselves able to acknowledge why the Magistrates preferred the evidence contrary to their defence, but that they did so is plain enough.

On the costs award, the landlord argued

The justices erred in law in their assessment of the amount of costs to be paid by the Appellants by failing to have regard to the proportionality of the costs incurred and to the specific matters challenged by the Appellants.

The tenant had sought costs of £34,412.60. The landlord had argued in the Mags that this “was disproportionate, relying on R oao Notting Hill Genesis v Camberwell Green Magistrates’ Court [2019] EWHC 1423 (Admin). Specific issues were raised as to: the use of London lawyers and associated travel costs, including for an unnecessary site visit; the amount of hours and the grade of fee-earner, including in attendance at trial; the cost of a Newcastle-based expert.”

The Mags reduced the total to £29,079.80 noting that the travel and waiting at court expenses were excessive.

The High Court found that it was impossible to tell from the scant materials and comments from the Mags whether the Justices had put their minds to the proportionality of the costs. That in itself was sufficient concern to allow the appeal on this point.

If I have reached the point of guesswork, that is the point at which fairness requires another look. I am bound accordingly to conclude that the Magistrates erred at least to the extent of insufficiently articulating their decision, and that there is at least potential injustice in their perhaps too summary approach. It is important that the parties should have a basic understanding of how a sum is arrived at and some reassurance that they have been heard on the key issues.

The High Court added some comments on the nature of the costs assessment regime for s.82 EPA prosecutions:

The analogies drawn in the decided authorities, and recommended to me, with rules of court for assessing costs in both civil and criminal proceedings, are, however, just that: analogies. S.82(12) is drafted in terms which mandate Magistrates to order the payment of an amount of compensation, which in their view is reasonably sufficient in view of expenses properly incurred. While assistance may be gained from analogous concepts such as proportionality, and from the approach courts are familiar in taking to ensure that awards of costs are fair, it is important not to lose sight of the words of the statute. The Magistrates are properly engaged on an exercise in assessing reasonably sufficient compensation for expenses properly incurred. What ‘expenses’ have been ‘properly incurred in the proceedings’ is one aspect. But s.82(12) creates a distinctive entitlement, and the assessment of ‘reasonably sufficient compensation’ is a distinctive statutory duty, in a scheme in which procedural provision is made to help minimise the need for complainants to litigate at all. The wider statutory context remains important.

Appeal allowed on the costs point and case remitted to the Magistrates for costs consideration.

And finally, after the recent bumper pack of Rent Repayment Order cases, here by way of contrast is an example of an unsuccessful RRO application:

49 Springfield Road, London E17 8DD ((Housing) Act 2004 and Housing and Planning Act 2016 – Rent repayment orders) [2021] UKFTT LON_00BH_HMF_2020_0118 (18 March 2021)

The application was for an unlicensed property that required a licence under a selective licensing scheme. The tenant claimed to have an AST of ’49B Springfield Road’ which only shared a hallway with ’49A’. The landlord admitted the property was not licensed, but said it did not have to be – there was only one property – 49 Springfield Road, and the applicant had shared it with her and her son.

The Tribunal was not satisfied with anyone’s evidence:

we did not find the Respondent’s or her husband’s responses in cross-examination particularly convincing, including the Respondent’s response regarding the locking of doors.

In addition, the living arrangements as described by the Respondent are rather unconventional to say the least, and it is strange that she and her family would have changed their plans so radically and so quickly simply on the strength of the Applicant having offered a lower rent so soon after the Property was advertised. We also note that the eviction notice dated 30th November 2019 referring to the agreement with the Applicant as a lodgers’ agreement was countersigned by Mr Ashfaq as witness, which is unusual and might suggest that it was created as a self-serving piece of evidence to bolster the Respondent’s claim that the Applicant was merely a lodger.

On the other hand, the AST agreement filed by the tenant was missing a page and several clauses, which, on the respondent’s copy were present and referred to the applicant as a lodger. The applicant had no explanation for the missing page/clauses. There was also no other witness evidence in support of the applicant. he page may have been missing from the agreement the tenant signed (and the respondent adding the relevant clauses later on), or it may have been removed before being being submitted to the Tribunal. There was no way to tell with certainty.

As a result, and without making any finding about about who was right, the Tribunal held:

Under section 43(1) of the 2016 Act, the tribunal may only make a rent repayment order if satisfied beyond reasonable doubt that the landlord has committed an offence. This is the criminal standard of proof, and it differs significantly from the civil standard of proof under which the tribunal only has to be satisfied on the balance of probabilities. Whilst we have not found the Respondent’s evidence or supporting witness statements particularly convincing, for the reasons listed above we also have concerns about the strength of the Applicant’s evidence. Therefore, taking all of the evidence in the round, we are not satisfied beyond reasonable doubt that the Respondent has committed an offence.

So,  reminder if one were needed that the criminal standard of proof applies to RROs, and evidence that merely suggests something is ‘more likely than not’, or ‘on the balance of probabilities’ won’t, by itself, suffice.

(I do have one more RRO case to write up, but that has such a marvellous cast list, improbabilities and convolutions that it deserves its own post. And possibly a three part drama on BBC2. Any case where part of the landlord’s defence is a reasonable excuse of ‘I did not want to know about property law’ is to be treasured).

 

 

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.

13 Comments

  1. richgreenhill

    Marvellous! Without prejudice the generality of the aforesaid, the first box of page 5 of the updated section 21 flowchart PDF seems to have shifted back to the foot of page 4. And it may be unintentional that the colour of the “invalid” outcome boxes is red on pages 6 and 7 but orange on the other pages, though to be sure section 21 has become something of a prism if not a rainbow in the firmament of housing law. Anyway, congratulations for apparently retaining your sanity and indeed helpfulness despite the ongoing legislative plethora. Never a dull moment on this blog.

    Reply
    • Giles Peaker

      Damn. Sorted. Any remaining problems are strictly your own ;-)

      Reply
  2. Ben Reeve-Lewis

    The Springfield RRO was one of ours, although not repped by myself (The same case worker got a successful RRO against the notorious Simple Properties just a week before). What’s not mentioned in the report is that there were not just missing pages in the contract but that the contracts were entirely different documents written in different fonts, casting even more questionable doubt on an already sceptical FTT. I think the decision was a bit harsh, in that given the dim view the tribunal took of the respondent’s honesty they still held him up. He wouldnt have stood up on balance of probabilities but there you go. Breathe deep…….move on!

    Reply
  3. Judex Sinenomine

    You’re right about the judiciary using them, so I also gather. These flowcharts are all that prevent a deluge, rather than a trickle, of unlawful County Court S.21 decisions. Profound thanks, Giles, again.

    Reply
  4. Ivan Beach

    There is a typo in the link given on page 13.

    Speaking of typo’s, if there are inaccuracies in a claim form for possession of a property in England, does the section 21 process become invalidated?

    Reply
    • Giles Peaker

      Odd, I haven’t changed it. Will sort. (Fixed now)

      Inaccuracies in the claim form? Depends on the inaccuracy. Certainly not automatically invalid.

      Reply
  5. ivan

    Sir, the claim form omits to specify a closing date for the delivery of the defence form and omits mention of a subsequent six month tenancy agreement.

    Reply
    • Giles Peaker

      The date for filing a defence is for the court office to fill in, not the claimant. Not fatal to the claim.
      For anything else, you are going to have to get advice, as we can’t advise on individual cases (and certainly not without seeing the papers, but don’t send them, because we can’t advise anyway.)

      Reply
  6. Ivan

    I promise that I won’t send papers, Giles. Thank you. I am eager to get professional advice, in Plymouth, if I may say so. Thanks, again.

    Reply
  7. ivan

    I believe that you may have donated. That’s very kind of you.

    In this hypothetical case, the claimant submits in his claim form that the claim relates to a contractual shorthold tenancy created in 2017 and no other. The defendant believes that he holds a statutory six month periodic tenancy created when a statutory assured shorthold tenancy rolled over after payment of half a years rent, in late May 2018. The defendant believes that the security deposit held in the custodial scheme, is thus held in relation to the original contractual agreement, and that the statutory agreement makes no provision for a security deposit. If, however, it is determined by the court that the original written contractual tenancy is in effect, then isn’t it then the case that the half a years rent deposited with the landlords agent at the beginning of the contractual monthly rollover periods, is in effect then an additional security deposit against non payment of rent, and should therefore have been held in a suitable custodial scheme? Is he crazy?

    Reply
    • Giles Peaker

      It is not a hypothetical and we don’t/can’t advise on individual cases.

      Reply

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