Stevan Gorgievski v Carl Griffiths & Ors

For a rent repayment order under section 41(2)(b) of the Housing and Planning Act 2016, the 12-month period includes the whole day on which the application is made. An electronic application is made when sent; absent evidence to the contrary, its sending date may also be treated as its receipt date.

A tribunal considering reasonable excuse must identify the facts relied on, determine which are proved, and assess objectively whether they amount to a reasonable excuse. It must address the actual defence advanced and give adequate reasons. Conduct said to aggravate an award, including alleged harassment, requires relevant findings and a proper factual basis.

The five respondents were former tenants of rooms in the appellant landlord’s unlicensed HMO. The First-tier Tribunal (Property Chamber) made rent repayment orders totalling £33,668, together with reimbursement of £700 tribunal fees.

The landlord appealed against the FTT’s decision of 3 September 2024. He contended that the tenants’ electronic application was out of time, that he had a reasonable excuse because he reasonably believed the property was licensed, and that the FTT had wrongly treated use of a lounge as harassment when assessing the awards. He also challenged the fees order.

The central issues were whether the FTT had jurisdiction and whether it had properly determined the reasonable-excuse defence.

1. Appeal allowed. The FTT had jurisdiction. Applying Moh v Rimal Properties Ltd [2024] UKUT 324 (LC), the statutory 12-month period ended on, and included, 27 November 2023. It therefore began on 28 November 2022. The landlord’s licence application on 29 November 2022 meant that no licensing offence was committed on that day, but an offence could have been committed on 28 November.

2. Applying Jevan v Athansiadi [2024] UKUT 358, the tenants’ application was made when it was sent electronically at 23.37 on 27 November 2023. There was no evidence that it was received on a later date. An after-hours email should not be treated as received only when normal office hours resumed. The expiry of the six-month period for a criminal prosecution under section 127 of the Magistrates’ Courts Act 1980 did not erase an already committed offence or impose an additional limit on a rent repayment order.

3. The FTT had not properly considered the landlord’s actual reasonable-excuse case. His case was that he reasonably believed the HMO had been licensed, based on the management agreement, material apparently displayed at the property, and information on the Council’s website. The FTT instead addressed a different proposition about an agent failing to tell him that a licence was needed.

4. The first step identified in Marigold v Wells [2023] UKUT 33 (LC) was essential: the tribunal had to identify the facts relied on as a reasonable excuse. If proved, the facts advanced were capable of amounting to a reasonable excuse. The missing factual findings and inadequate reasons required the decision to be set aside.

5. The FTT’s treatment of alleged harassment and other conduct was also deficient. A tribunal may take account of conduct intended to intimidate a tenant, but it must make findings supporting that conclusion. The landlord and his cleaner were entitled to be in the lounge, so their presence could not alone establish harassment. A genuine but unaccepted offer of mediation may be relevant to fees, and fairness requires an opportunity to address a proposed fees award.

6. The FTT’s decision, including its fees decision, was set aside. The rent repayment order application was remitted to a differently constituted FTT panel.

• Upper Tribunal (Lands Chamber): Allowed the landlord’s appeal, set aside the FTT’s decision, and remitted the rent repayment order application to a differently constituted panel.
• First-tier Tribunal (Property Chamber): On 3 September 2024, made rent repayment orders totalling £33,668 and ordered reimbursement of £700 tribunal fees.