Clara Feige Vila Moreira & Ors v Nicholas and Varuni Morrison

A rent repayment order is limited to rent actually paid by the applicant tenant during the relevant period. Joint and several liability for the whole rent does not enlarge that maximum. The statutory reference to rent paid, together with the concept of repayment, excludes sums which the applicant might have been liable to pay but did not pay. The position differs from a statutory penalty calculated by reference to the whole deposit. A construction permitting each joint tenant to recover the whole rent would expose the landlord to multiple penalties and is inconsistent with the statutory language.

Three of five joint tenants appealed against a First-tier Tribunal rent repayment order. The property was an unlicensed house in multiple occupation, and the landlords were found to have committed the relevant offence. The tenants had jointly and severally undertaken liability for the whole rent, but each had personally contributed one fifth. The First-tier Tribunal calculated the maximum repayment by reference to the rent actually paid by each applicant and awarded 70% of that amount.

The appeal concerned whether the maximum should instead be calculated by reference to the whole rent, because of the tenants’ joint and several liability.

1. Appeal dismissed. The First-tier Tribunal’s decision was upheld.
2. Section 44(3) of the Housing Act 2004 limits the amount that may be ordered to the rent paid in respect of the relevant period, subject to the statutory deduction. The word repayment is crucial. An order for money which the applicant might have had to pay, but did not in fact pay, would not be a repayment.
3. Section 44(2) reinforces that conclusion. The amount must relate to rent paid by the tenant during the relevant period. The statutory focus is actual payment by the applicant, rather than the applicant’s contractual liability or payment made by another tenant.
4. The reasoning in Kowalek and another v Hassanein Ltd [2022] EWCA Civ 1041, although concerned with rent arrears paid after the offending period, was consistent with the focus on actual payment. The tenants’ argument that reliance on that case treated part of the rent as arrears had no merit.
5. Sturgiss and another v Boddy [2021] EW Misc 10 (CC) was distinguishable. It concerned a statutory penalty under section 214(4) of the Housing Act 2004, not repayment. Section 214(3A), by contrast, enabled repayment of all or part of a deposit, supporting the distinction between repayment of a contribution and a penalty calculated by reference to the whole deposit.
6. Joint and several liability did not justify repayment of rent that an applicant had not paid. A contrary construction could permit each tenant to claim an order calculated on the whole rent, producing multiple penalties against the landlord. That result was neither fair nor available under the statutory language.

• First-tier Tribunal (Property Chamber): found the relevant housing offence proved and made rent repayment orders calculated by reference to the rent actually paid by each applicant.
• Upper Tribunal (Lands Chamber): dismissed the appeal and upheld the First-tier Tribunal’s decision. A further appeal lay to the Court of Appeal on a point of law with permission.