Rosa Ficcara & Ors v Hannah James

Under Housing and Planning Act 2016, a rent repayment order may concern more than one relevant housing offence, but the statutory cap is determined by the rent paid during the relevant period. Multiple offences committed in the same period do not create multiple periods or permit repeated repayment of the same rent.

On an application by a tenant, the maximum recoverable sum is 12 months’ rent, irrespective of the number, timing or duration of the offences. The seriousness and multiplicity of offences remain relevant to the First-tier Tribunal’s discretionary assessment under section 44(4), but cannot increase the statutory maximum.

Four former tenants sought rent repayment orders against their former landlord after the First-tier Tribunal found that she had committed an HMO licensing offence and offences of harassment and unlawful eviction. The Tribunal made one order for each tenant, limited to the rent paid in the relevant 12-month period, and rejected the tenants’ request for separate orders of up to 12 months’ rent for each offence.

Three tenants appealed from the First-tier Tribunal decision of 25 June 2020. The central issue was whether Chapter 4 of Part 2 of the Housing and Planning Act 2016 permits cumulative rent repayment orders exceeding 12 months’ rent where a landlord has committed multiple qualifying offences.

1. Appeal dismissed. The First-tier Tribunal correctly refused to make orders requiring repayment of more than 12 months’ rent for each appellant. Permission for the respondent’s cross-appeal was refused.
2. Section 6 of the Interpretation Act 1978 means that references in sections 40, 43 and 44 of the Housing and Planning Act 2016 to an order and an offence can, where appropriate, include plural orders and offences. That did not answer the question of the amount recoverable.
3. Under section 44(3), the cap is expressed by reference to rent paid during a period, rather than to a particular offence. Where several offences occur in the same relevant period, section 44(2) yields one period, not separate duplicate periods. A rent repayment order reimburses rent actually paid; clear language would be required to authorise repayment of a multiple of that rent.
4. Applying the presumption against doubtful penalisation, reinforced by the severe character of the sanction, the Tribunal held that Parliament had not clearly authorised recovery exceeding 12 months’ rent. The maximum on an application under section 41 is therefore 12 months’ rent, regardless of the number, timing or duration of the offences.
5. Multiple and serious offences are not immaterial. They are relevant landlord conduct under section 44(4) when the First-tier Tribunal fixes the amount within the statutory maximum. The Tribunal also cautioned that Vadamalayan v Stewart [2020] UKUT 183 (LC) should not be treated as the final word on the discretion under section 44; the unresolved question was whether, absent mitigating or aggravating factors, the sum must equate to the rent paid.

• Upper Tribunal (Lands Chamber): dismissed the tenants’ appeal and upheld the limit of 12 months’ rent for each tenant; refused the respondent permission to cross-appeal.
• First-tier Tribunal (Property Chamber): on 25 June 2020, found that the landlord had committed qualifying housing offences and made one rent repayment order for each former tenant, limited to the maximum rent payable for the relevant 12-month period.