122 Widdenham Road, London N7 9SQ, LON/00AU/HMF/2025/0753. (Copy of Decision)

This was a final decision in a rent repayment order application brought by (some of) the tenants of 122 Widdenham Road against the landlord, Mr Semelo-Shaw, for a failure to licence an HMO that required a licence. In an earlier decision, the Tribunal had held that the offence of failure to licence was amde out, and that if an RRO was to be made, it would be a 40% of rent paid by the applicant tenants.

However, a final decision was postponed for the applicants to make submissions in writing on what the Tribunal described as “the joint tenancy point”. The Tribunal had noted that the claims were for the payments of rent actually made by each of the various applicants, not a claim for all of the rent paid, by all of the joint tenants (and there had been varying joint tenants over the relevant period). The question apparently raised by the Tribunal and posed to the applicants, represented by Justice for Tenants, was whether an application in relation to a joint tenancy had to include all the joint tenants as parties in order to be a valid application. This mattered here because the 12 month limitation period meant that new applicants could not be added by amendment.

This was the Tribunal’s decision after receiving submissions.

There had been Upper Tribunal decisions dealing with applications for RROs by some or one of a group of joint tenants. HOwever, none of them had specifically addressed this point.

Marcus v Kwok (2024) UKUT 219 (LC) was an appeal by the landlord of the amount of an RRO made for one of two joint tenants. The issue was whether the tenant respondent had themselves paid all the rent claimed. The UT found the tenant had paid the rent claimed. The issue of whether the one tenant could claim by themselves was not raised.

(NL note – there is also Moreira & Ors v Morrison & Anor (2023) UKUT 233 (LC), which concerned whether three applicants (of five joint tenants) could claim for the whole of the joint rent, on the basis that each tenant was jointly and severally liable for the whole rent. The FTT and UT held it was only the rent paid by the applicant tenants that could be claimed, via s.44(2) Housing and Planning Act 2016. Again, the issue of whether an application required all joint tenants to participate was not raised. We’ll come back to this in the comment below.)

Opara v Olasemo (2020) UKUT 96 (LC) did not concern a joint tenant, but rather other tenants as witnesses.

The issue was, then, whether a rent repayment order application was a ‘joint claim’.

Re Maud (No 2) [2018] EWHC 1414 (Ch), (2019) Ch 15 – a bankruptcy case founded on a money judgment obtained by two creditors, in which a single sum had been ordered to be paid to both. The High Court found

I think that it is therefore clear that Edgeworth and Aabar were joint owners of the debt owed by Mr Maud under the judgment and order, and neither was entitled to demand separate payment of any part of the debt for their own benefit.

This, the Tribunal held, represented the substantive law:

If there are joint creditors, all the joint creditors must be party to the claim against the obligor. Once any relevant limitation period has expired, it is no longer possible to cure the fatal defect in a claim by adding a missing joint creditor either as a claimant/applicant or as a defendant/respondent.

Further, there was CPR 19.3, which states

(1) All persons jointly entitled to the remedy claimed by a claim must be parties unless the court orders otherwise.”

(2) If any such person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.”

While the CPR did not apply to the Tribunal, and there was nothing equivalent in the Tribunal procedure rules:

Both this Tribunal and the Upper Tribunal do often apply the CPR by analogy in appropriate cases: see most recently Nelson v Southern Electric Power Distribution (2025) UKUT 300 (LC)

There was then the issue of whether a Rent Repayment order was a civil claim such that the rule might apply by analogy

Mr Cairns  (for the applicants) then submits that “RROs are a civil penalty arising from criminal wrongdoing, not a civil head of claim. Therefore, they should not be treated as such.” We do not accept that there is some third category of “civil penalty” which is neither civil nor criminal. In our judgment, any claim is either a civil claim or a criminal penalty. There is no third category. An application to the Tribunal for an RRO is in our judgment an ordinary civil claim.

The Tribunal goes on to note that the position on a joint claim would be a protection for the landlord, because

a landlord may not know what rent an individual tenant has paid into the communal fund. The current case is such an example. The tenants each paid different monthly sums towards the total rent. The landlord is not necessarily a party to that agreement between tenants and may know nothing of it. If individual claims were permissible, one tenant could bring proceedings shortly after the end of the tenancy and obtain an RRO for what he or she says they paid (say a half). Another tenant could claim an RRO just before the expiry of the limitation period for what this tenant says he or she paid (say two-thirds). If the tenants exaggerated their rent payments, the landlord might be liable for more than the total rent received by him.

As the application was not by all joint tenants, the FTT did not have jurisdiction to make an RRO, additional applicants could not now be added due to limitation, and the application was dismissed.

Comment

Well now.

This has been floating around in discussions for a while, but has not really been taken as a point. If it is right, it presents significant problems for RRO applications by joint tenants (and that would be all joint tenants over the relevant period). And also a lot of complications – eg, some joint tenants receive HB/UC for their full rent and others don’t – only the non HB/UC tenants would actually have a valid application. It could be said that the others would not be entitled to the remedy, so didn’t need to be parties, but this might have to be shown.

And then of course, the sheer practicality of getting all joint tenants (who may have left some time before) included as parties (presumably as respondents if they didn’t want to be applicants, by analogy with CPR 19.3) would make RROs against the dodgiest landlords, by the most vulnerable tenants, almost impossible to bring.

I’ve been thinking about this a bit – not definitively by any means – and I think there are some problems with this decision.

It has been argued to me that an RRO application is not a claim to a remedy to which the tenant is ‘entitled’ (as per CPR 19.3), because the Housing and Planning Act 2016 provides that the FTT may make an RRO if the grounds are made out, not that it must. There is no entitlement to an RRO as a remedy, it is wholly at the FTT’s discretion (unlike say a s.214 Housing Act 2007 deposit breach claim). I am not hugely convinced by this line. An RRO application is still seeking a remedy. It might be a statutory penalty sought, but so is a s.214 deposit claim.

But, there is an overlooked point in the UT’s discussions of s.44(2) Housing and Planning Act 2016 in Marcus and in Moreira. The applicant tenant can only apply for the rent actually paid by them. The individual joint tenant does not have a basis to apply for the whole of the (joint) rent, and even if all joint tenants are applicants, they are applying in respect of the rent that they individually paid, not a for a joint sum that they can later divide up between them.

That, I think, is the settled meaning of s.44(2). On that basis, it is not a joint ‘entitlement’ of all the joint tenants, it is individual applicants’ claim in respect of the rent that they actually paid (which also deals with the issue of arrears arising from specific individual’s non-payment, albeit that all are jointly and severally liable for arrears in any claim by the landlord).

I’m not saying that this is a complete or indeed satisfactory answer, far from it. But there is a very clear tension between the Upper Tribunal case law on the meaning of s.44(2) and the logic of this decision.

(On the landlord not knowing who paid what, the UT and FTT have hitherto been pretty clear this needs to be evidenced by the applicant. I don’t see this as an issue.)

I gather an appeal is likely. Clearing things up is certainly necessary.