Relevant legislation
3.The power to make a rent repayment order is contained in Chapter 4 of Part 2 to the Housing and Planning Act 2016. Section 40 identifies a number of criminal offences. If a landlord is shown beyond reasonable doubt to have committed one of those offences the FTT has power under section 43 to require them to repay an amount of rent to their tenant. 4.The relevant offence in this case is the offence of being of person having control of or managing an HMO which is required to be licensed under Part 2 of the 2004 Act but which is not so licensed, contrary to section 72(1), Housing Act 2004.5.For a person to commit that offence they must have control of, or be managing an HMO (a house in multiple occupation). Section 254(2) of the 2004 Act contains the standard test of an HMO. A building or a part of the building meets the standard test if the following conditions are met: (a) it must consist of one or more units of living accommodation not consisting of a self-contained flat or flats; (b) the living accommodation must be occupied by persons who do not form a single household; (c) they must occupy the living accommodation as their only or main residence or be treated as so occupying it; (d) their occupation of the living accommodation must constitutes the only use of it; (e) rent must be payable by at least one of the occupiers; and (f) two or more of the households who occupy the living accommodation must share one or more basic amenities.6.Part 2 of the 2004 Act provides for HMO licensing. It does not apply to all HMOs but only to those which fall within a prescribed description (section 55(2), 2004 Act). The Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2018 provides, at article 3, that an HMO which satisfies the standard test will be of a prescribed description it is occupied by five or more persons living in two or more separate households.