Edward Acheampong v Patricia Sanchez Roman & Ors

When fixing a rent repayment order under the Housing and Planning Act 2016, the tribunal must not presume that the full rent is payable subject only to deductions under section 44(4). It must identify rent for the relevant period, deduct tenant-only utility payments, and assess a proportion that fairly reflects the seriousness of the offence. It must then adjust that figure, if appropriate, for the parties’ conduct, the landlord’s financial circumstances and relevant convictions.

The seriousness assessment forms part of the landlord’s conduct under section 44(4)(a). There is no tariff. A full-rent order will ordinarily require an offence at, or close to, the most serious end of its kind, or another compelling and unusual factor.

These were two appeals by landlords from decisions of the First-tier Tribunal (Property Chamber) making rent repayment orders for unlicensed-property offences under the Housing Act 2004.

In each case, the FTT began with the maximum rent, less utilities, and made only a limited deduction for other matters. The central issue was whether that approach failed to assess the seriousness of the offence and was inconsistent with Williams v Parmar [2021] UKUT 244 (LC).

In Mr Choudhury’s appeal, sufficient findings enabled the Upper Tribunal to substitute an order. In Mr Acheampong’s appeal, unresolved evidence on utilities and financial circumstances required remittal.

1. Both appeals were allowed. The FTT had erred by treating the maximum recoverable rent, after a utilities deduction, as the default amount and making deductions only for favourable section 44(4) factors. That approach fettered its discretion and failed to give proper effect to the seriousness of the licensing offence.

2. The amount of an order must always relate to rent paid during the relevant period, but need not equate to it. Consistently with Williams v Parmar [2021] UKUT 244 (LC), the FTT should: ascertain the rent; subtract payments for utilities benefiting only the tenant; determine the proportion that fairly reflects the seriousness of the offence; and then consider adjustments under section 44(4) of the Housing and Planning Act 2016.

3. Seriousness is part of the assessment of the landlord’s conduct under section 44(4)(a). It requires comparison both with other rent-repayment-order offences and with other examples of the same offence. There is no rate card. Full repayment is not justified merely because the landlord’s conduct can be described as serious.

4. In Mr Choudhury’s case, £100 per month was deducted for utilities. Fire-safety failures and failure to protect the deposit made the offence serious, but not among the most serious of its kind. The Tribunal substituted an order for 75% of £16,800, namely £12,600. No further adjustment was warranted.

5. In Mr Acheampong’s case, the FTT’s finding that he committed the section 72 offence, and its findings on the parties’ conduct, remained undisturbed. The amount decision was set aside and remitted because the evidence concerning utilities and the landlord’s financial circumstances required factual findings which the Upper Tribunal could not make.

• Upper Tribunal (Lands Chamber): Both appeals from the First-tier Tribunal were allowed in [2022] UKUT 239 (LC). The rent repayment order in Mr Choudhury’s case was substituted; the amount of the order in Mr Acheampong’s case was remitted.
• First-tier Tribunal (Property Chamber): Made rent repayment orders after finding that each landlord had committed an unlicensed-property offence under the Housing Act 2004.