Eugene Dowd v Ana Martins & Ors

In quantifying a rent repayment order, the tribunal must not treat the whole rent as the starting point and make deductions only for landlord or tenant conduct. It should first identify the rent for the relevant period and deduct utilities benefiting only the tenant. It should then assess the seriousness of the offence and set a proportion of the adjusted rent as the starting point. Finally, it must consider the statutory factors, including the conduct of the parties and the landlord’s financial circumstances. A joint tenant who alone maintains a claim cannot recover the other joint tenant’s share of the rent. Case-management decisions will not be disturbed absent an error of law or irrationality.

The landlord appealed against a decision of the First-tier Tribunal making a rent repayment order under section 72(1) of the Housing Act 2004. The appeal concerned notice of the hearing, the admission of oral evidence from a tenant who had not served a witness statement, the repayment of rent paid by one of two joint tenants, and the quantification of the awards.

The First-tier Tribunal found that the property required an HMO licence, that the landlord had committed the licensing offence, and that he had no reasonable excuse. It reduced the rent claimed by 25 per cent by reference to the statutory factors. The central questions were whether those case-management decisions disclosed an error of law and whether the awards had been lawfully quantified.

1. Case management. The First-tier Tribunal’s decisions to proceed with the hearing and to allow Ms Wells to give brief evidence in chief were case-management decisions. There was no error of law or irrationality. The landlord had received the application and directions, and could not identify evidence or documents that he had been unable to obtain. Ms Wells’ application was apparent from the signed application form and her evidence caused no unfair surprise.
2. Joint tenant’s recovery. Ms Martins could claim rent that she had paid, but the amount attributable to the room occupied jointly with Mr Da Silva had to be divided by two. Otherwise the order would repay two persons’ rent to one claimant, or indirectly benefit a person who had withdrawn his application.
3. Quantification. The First-tier Tribunal had unlawfully fettered its discretion by treating rent less utilities as the headline figure and applying only a reduction for the landlord’s conduct and financial circumstances. Following the approach in Acheampong v Roman and others [2022] UKUT 239 (LC), the tribunal must:
   1. ascertain the rent for the relevant period;
   2. deduct utilities that benefited only the tenant;
   3. assess the seriousness of the offence and set a proportion of the adjusted rent as the starting point; and
   4. consider additions or deductions required by section 44(4) of the Housing and Planning Act 2016.
4. The offence was low in the overall scale of section 72(1) offences but more serious than that in Hallett v Parker [2022] UKUT 165 (LC). A starting point of 45 per cent was appropriate. The landlord’s ordinary responsible conduct did not justify adjustment, and his financial circumstances did not warrant a further reduction.
5. The appeal succeeded on grounds 4 and 5. The Upper Tribunal set aside the First-tier Tribunal’s decision as to the amount payable to Ms Martins and substituted awards of £1,800 to Ms Martins, £2,835 to Mr Drennan and Ms Nagyova, and £3,113 to Ms Wells.

• Upper Tribunal (Lands Chamber): appeal allowed in part. The First-tier Tribunal’s quantification of the awards was set aside and substituted in part; the other grounds failed.
• First-tier Tribunal (Property Chamber): found the landlord had committed the offence under section 72(1) of the Housing Act 2004 and made rent repayment orders, reducing the claimed rent by 25 per cent.