Andrew Kemp & Ors v Dip Systems (UK) Limited

For the 12-month limit governing rent repayment orders, an offence under section 72(1) of the Housing Act 2004 is not treated as committed during a period when the landlord has a reasonable-excuse defence under section 72(5). The word “committed” bears a consistent meaning in the closely connected provisions of the Housing and Planning Act 2016. Time begins to run when the landlord’s conduct ceases to be blameworthy. The practical difficulty that tenants may not know of the defence or its effect on time does not justify giving the statutory language different meanings.

Former tenants applied to the First-tier Tribunal for rent repayment orders in respect of an unlicensed HMO. The landlord relied on a reasonable excuse under section 72(5) of the Housing Act 2004 because a defective local-authority payment system had prevented completion of its licence application.

The FTT held that the defence applied during that period. It found that no offence was then being committed and dismissed the application as out of time under section 41(2)(b) of the Housing and Planning Act 2016. The tenants appealed, arguing that the offence was committed whenever the landlord controlled or managed an unlicensed HMO, subject only to later exculpation. The central issue was the meaning of “committed” in the statutory time limit.

1. Appeal dismissed. The FTT correctly held that the application for a rent repayment order was out of time.
2. The issue was one of statutory interpretation. The word “committed” can in some contexts refer to conduct constituting an offence even though an exculpatory defence is available. Tesco v Nattrass [1972] AC 153 illustrated that distinction.
3. That distinction did not govern this statutory scheme. Section 43(1) of the Housing and Planning Act 2016 uses “committed an offence” in a context requiring established guilt. The same meaning applies to section 72 of the Housing Act 2004: a person with a reasonable excuse may have controlled or managed an unlicensed HMO, but is outside the liability and punishment provisions in section 72(6) and (7).
4. The tenants’ proposed distinction between application provisions and substantive provisions was undermined by the statutory scheme. Applicants must establish matters incorporated into section 72(1), including that the HMO was required to be licensed and was not subject to an applicable temporary exemption or management order.
5. Parliament is presumed to use the same word consistently, particularly in neighbouring provisions addressing the same subject. No language in the 2016 Act rebutted that presumption. Time therefore ran from the point at which the landlord’s behaviour ceased to be blameworthy. Practical uncertainty for applicants did not justify a different construction.
6. The application was outside the 12-month period and was dismissed.

• Upper Tribunal (Lands Chamber): appeal from the First-tier Tribunal (Property Chamber) dismissed.
• First-tier Tribunal (Property Chamber): application for rent repayment orders dismissed as out of time; the FTT stated that it would otherwise have ordered repayment of £13,514.