Katarzyna Kaszowska & Ors v Dominic White

A rent repayment order under Chapter 4 of Part 2 of the Housing and Planning Act 2016 may be made only against the tenant’s landlord. Section 40(2) both defines the order and identifies the person against whom it may be made.

A company director may commit a housing offence under section 251 of the Housing Act 2004 where the company’s offence was committed with the director’s consent, connivance or neglect. That provision does not expand the statutory class of persons liable to a rent repayment order. A director who was not the landlord cannot be ordered to repay rent which the director did not receive.

Ten property guardians occupied a former children’s home under licence agreements with Camelot Guardian Management Ltd. Camelot was the tenants’ landlord and was in liquidation when they applied for rent repayment orders against its managing director, Dominic White.

The First-tier Tribunal held that it lacked jurisdiction to make an order against a director who was not the landlord. It also found that, although the property required an HMO licence, erroneous advice from the local housing authority gave Camelot a reasonable excuse and no relevant offence had been committed.

The tenants appealed. The central issue was whether section 251(1) of the Housing Act 2004 allowed a rent repayment order to be made against a corporate landlord’s director who had personally committed the company’s housing offence.

1. Appeal dismissed. The First-tier Tribunal correctly held that it had no jurisdiction to make a rent repayment order against Mr White, because he was not the appellants’ landlord.

2. The Tribunal applied the Court of Appeal’s analysis in Rakusen v Jepson [2021] EWCA Civ 1150. Section 40(2) of the Housing and Planning Act 2016 both defines a rent repayment order and limits the class of person against whom it may be made. The statutory scheme consistently requires that person to be a landlord: sections 40(1), 40(3), 42(1) and 43(1) all use that limitation.

3. Section 41(1), which permits an application against a person who has committed a relevant offence, must be read in that statutory context. It does not displace section 40(2). The relevant offences are offences committed by a landlord in relation to housing, so the person against whom an order is sought must be a landlord.

4. Section 251(1) of the Housing Act 2004 can make a director personally guilty of the company’s offence and liable to be proceeded against and punished. It does not alter the separate conditions governing the civil remedy of a rent repayment order. The different wording of section 249A, which permits a civil penalty against a person whose conduct amounts to a relevant housing offence, did not assist the appellants.

5. The conclusion was reinforced by the word “repay” in section 40(2)(a): the statutory remedy contemplates repayment by the landlord which received the tenant’s rent, not payment by a director who did not receive it. The remaining grounds concerning reasonable excuse therefore did not require determination.

• Upper Tribunal (Lands Chamber): dismissed the tenants’ appeal and upheld the First-tier Tribunal’s conclusion that it had no jurisdiction to make a rent repayment order against a non-landlord company director.
• First-tier Tribunal (Property Chamber): on 22 February 2021 dismissed the application. It held that a rent repayment order could not be made against a director who was not the landlord, and that the corporate landlord had a reasonable excuse for the absence of an HMO licence.