Hancher v David & Ors (HOUSING – RENT REPAYMENT ORDERS – house in multiple occupation – failure to obtain an HMO licence) (2022) UKUT 277 (LC)

This was an appeal from an FTT decision to make an rent repayment order in the amount of 100% of the rent for the relevant period due to a failure to licence an HMO.

The FTT decision had referenced the UT decision in Williams v Parmar (2021) UKUT 244 (LC) (our note), but had proceded to make a 100% of rent award.

The Upper Tribunal set aside the award as

the FTT treated the maximum possible order as the default order, from which only deductions have been made, which is precisely what Williams v Parmar said should not be done. The tenants say that the award is correct in light of the condition of the property, but that is to miss the point; the FTT’s reasoning started in the wrong place, and the FTT failed to give any consideration to the seriousness of the offence.

The UT proceeded to remake the decision.

Despite claiming that utilities were included Ms Hancher had provided no evidence of this, so no deduction was made.

On the seriousness of the offence, to give a starting point:

The offence under section 72(1) of the Housing Act 2004 is not one of the more serious of the offences for which a rent repayment order can be made. And this is not one of the most serious examples of the section 72(1) offence; in particular, whilst some improvements were clearly needed at the property there is no evidence of fire hazards, for example, and no suggestion that the property would not have qualified for an HMO licence had one been sought. However, it is clear from the FTT’s findings about credibility that the offence was committed deliberately; Ms Hancher chose not to apply for a licence even though she had been told by her architect that she needed one. I take the view that a repayment of 65% of the rent is appropriate to reflect the seriousness of the offence.

Finally, the FTT had found there was nothing in either the landlord’s or the tenants’ conduct that would alter an award. No permission had been given to appeal that finding. Ms Hancher had no relevant convictions. So there was no adjustment of the amount. The RROs were made at 65% of relevant rent.