This article by Robert Mullarkey of Anthony Gold was first published on the Anthony Gold website and is reproduced here by permission.
What is a Rent Repayment Order?
Rent Repayment Orders (RROs) have been around since their introduction under the Housing Act 2004 (HA 2004).
Previously, RROs were very limited in scope and allowed a tenant or a local authority to make an application for a repayment of rent or Housing Benefit. An application could be made by the tenant but only if the landlord had been prosecuted and found guilty of an offence for failing to obtain the correct property licence or the local authority had already obtained an RRO for the return of housing benefit.
If the application was successful, the landlord could be ordered to repay rent for the period during which the offence was committed up to 12 months preceding the date of the tenant’s application.
Since April 2017, it has become easier for tenants to make an application for an RRO. Provisions introduced under the Housing and Planning Act 2016 (HPA 2016) widen the scope for tenants to make an application to the Tribunal.
What are the key changes?
The most significant change is that tenants no longer require the local authority to bring a successful prosecution in the magistrates’ court for an application to be made. Previously, tenants were dependent on the local authority prosecuting the landlord (or possibly a successful private prosecution) and for the landlord to be found guilty of a licensing offence.
However, under the new regime tenants can now make an application to the Tribunal without securing a criminal conviction, but merely by proving that the landlord has committed an RRO offence.
What is an RRO offence?
Previously, an application for an RRO could only be made in circumstances were the landlord had been prosecuted for failing to obtain the correct property licence required under HA 2004. However, the HPA 2016 substantially extends the range of offences for which an RRO can be sought.
In addition to failing to obtain the correct licence, a tenant can make an application for an RRO if their landlord commits one of the following offences:
- Violent re-entry;
- Unlawful eviction or harassment;
- Failing to comply with an Improvement Notice served by the local authority;
- Failing to comply with a Prohibition Order served by the local authority;
- Where the landlord is in breach of a banning order (not yet in force).
The tenant must prove that the offence has been committed at any time in the preceding 12 months. The new provisions are not retrospective; therefore the commission of the offence must have been committed after 6 April 2017.
How do I make an application for an RRO?
Applications for RROs are made to the First-tier Tribunal (Property Chamber). The tenant is not required to serve the landlord with notice of intended proceedings and can make an application straight to the Tribunal.
If a tenant is making an application for an RRO without the landlord being found guilty of an offence in a magistrates’ court, they must prove that the landlord has committed an RRO offence.
The burden will be on the tenant to prove, beyond reasonable doubt (the criminal standard of proof) that an offence has been committed. The landlord will have the opportunity to defend the application by demonstrating either that the offence has not been committed, or that they have a reasonable excuse defence.
Are there time limits on when an application must be made?
- If the offence committed has a definitive date, such as an unlawful eviction, then an application must be made within 12 months of the offence being committed.
- If the offence is ongoing, such as a failure to license, then an application can be made at any time whilst the offence is still being committed but the amount of the RRO will be limited to the period of 12 months prior to the tenant’s application.
Should my local authority assist me with proving that an offence has been committed?
It could be difficult for tenants to prove that an offence has been committed as they will usually rely on evidence form the local authority, such as evidence that no application has been made for a property licence or that the landlord is in breach of an Improvement Notice.
This is important because tenants will be required to prove the offence beyond reasonable doubt; which is a high burden of proof. The HPA 2016 encourages local authorities to assist tenants with an application for an RRO. This could include providing advice to tenants on their rights or by conducting proceedings on tenants’ behalf.
How much can I re-claim?
The amount of rent that tenants can reclaim is capped at 12 months.
Tenants can seek to recover the rent paid in the period of 12 months before the date of the offence being committed. If the alleged offence is continuing, for example, a failure to obtain a licence, then the amount to be repaid will relate to the rent paid during which the landlord was committing the offence for a period of up to 12 months prior to the tenant’s application to the tribunal.
The amount of the RRO cannot exceed the amount of rent paid by the tenant.
The Tribunal is not obliged to award the full amount of rent (but will in specific circumstances) but will consider the nature of the offence committed, whether the landlord has already been convicted or received a financial penalty and in certain cases, the Tribunal will consider the landlord’s financial position and conduct.
The landlord will also have an opportunity to make their own representations to the Tribunal.
I receive housing benefit/universal credit – can I make an application?
If you receive housing benefit or universal credit which covers your whole rent then you are not entitled to make an application for an RRO. In such cases it would be for the local authority to make a claim for a RRO.
If housing benefit or universal credit pay a proportion of your rent and you are responsible for a “top-up” payment then you are entitled to make an application which will be limited to your own personal contribution. When making an RRO the tribunal will deduct the housing benefit or universal credit payments.
If you would like any further advice in relation to Rent Repayment Orders or any other housing issue call the Anthony Gold housing team on 020 7940 4000.
