Kathleen Victoria Chow & Anor v Nathan Skipper & Anor

Introduction

1. This is Mr and Mrs Chow’s appeal from a decision of the First-tier Tribunal (“the FTT”) to make a rent repayment order against them in favour of the respondent tenants, Mr Skipper and Ms Evett.

2. We heard the appeal by remote video platform on 6 January 2022. Mrs Chow represented herself and Mr Chow; the respondents chose not to participate in the appeal, although Mr Skipper attended the hearing. The factual and legal background

3. Mr and Mrs Chow own the freehold of Flat 54, Elgin House, which has been rented out for some years. It was let to Mr Skipper and Ms Evett on an assured shorthold tenancy on 25 March 2019. The property and letting arrangements were managed for the landlords by Advance Glenisters.

4. It is not in dispute that the property is in an area designated as an area of selective licensing under Part III of the Housing Act 2004 , and was required to be licensed under section 85 of that Act . Section 95 provides: “(1) A person commits an offence if he is a person having control of or managing a house which is required to be licensed under this Part (see section 85(1) ) but is not so licensed. (4) In proceedings against a person for an offence under subsection (1) or (2) it is a defence that he had a reasonable excuse … for having control of or managing the house in the circumstances mentioned in subsection (1), …”

5. That offence is one of those listed in section 40 of the Housing and Planning Act 2016 , so that one of the consequences of the commission of the offence is that the tenants may apply to the FTT for a rent repayment order (“an RRO”) and recover the rent they paid while the property was unlicensed, up to a maximum of a maximum of twelve months’ rent.

6. Mr and Mrs Chow held a licence for the property which expired at the end of August 2019.

7. In July 2020 Mr Skipper opened mail addressed to the landlords at the property, and found that it was a final reminder that a licence was required for the property, from the local housing authority (Barking and Dagenham). Mr Skipper contacted Glenisters, and it was established that the landlords had not renewed the licence after August 2019. Mrs Chow applied for a licence on 16 July 2020. Subsequently the tenants applied for a rent repayment order, initially against Glenisters but the landlords were, correctly, substituted as respondents by the FTT prior to the hearing of the application.

8. Mrs Chow’s evidence to the FTT, as summarised in its decision, was that she was made aware by Glenisters in July 2019 that she needed to renew the licence, and tried to do so but found that the local housing authority’s web page was not working. She wrote to the authority on 11 July 2019 asking for renewal paperwork, and was told by email on that date that a new on-line system was being set up and that she would receive an update within 3 weeks. She heard nothing more from the local authority.

9. The local housing authority sent three reminders to Mr and Mrs Chow in June and July 2020, but posted them to the property itself, which is not where Mr and Mrs Chow live. When Mr Skipper opened the third letter, dated 6 July 2020, and contacted the agents, Mrs Chow – who was in Hong Kong at the time – was made aware of the situation and applied for a licence on 16 July 2020.

10. The FTT recorded at paragraph 25 of its decision: ‘The First Respondent’s case was that she had difficulties completing the application because she could not use the portal and that thereafter “life got in the way”.’

11. It went on to say at paragraph 27 that it had seen an email from Glenisters dated 3 September 2019 asking Mrs Chow if she had renewed the licence and that she had replied “We have. Paid last night”. The FTT therefore said that it was “not satisfied that this was entirely a case of mere inadvertence”, and took the view that Mr and Mrs Chow, despite being well aware that a licence was required, took no steps to renew it for nearly a year. The FTT made a rent repayment order in the sum of £11,012, being the whole of the rent paid for the 319 days during which the offence was being committed.