[2023] UKUT 134 (LC)

The rent repayment order was made in respect of 19 Tannery House, a flat in Tower Hamlets. The flat has one-bedroom with a mezzanine above the living area providing an additional bed space.

Ms Daff purchased the flat in 2009 intending to live in it as her home. Unfortunately she became seriously ill and was unable to work and in 2014 she returned to her native Australia. In her absence she let the flat through a letting agency.

In 2016 the local housing authority, the London Borough of Tower Hamlets, introduced a selective licensing scheme under Part 3 of the 2004 Act. The scheme applied to Ms Daff’s flat, and in the language of the 2004 Act it became a “Part 3 house” (section 85(5), 2004 Act). Ms Daff, in Australia, was unaware of that designation and its significance, and neither she nor her letting agent applied for a licence.

Ms Daff returned to London in 2017 and moved back into the flat. On 23 September 2018 she granted a tenancy for a term of 9 months to the respondents, who were both students, before again returning to Australia to live with her parents. She was still unaware of the licensing scheme and did not apply for a licence before letting to the respondents.

Ms Daff now acknowledges that by having control of a dwelling which was required to be licensed under Part 3 of the 2004 Act but which was not so licensed she committed an offence under section 95(1) of the Act.

The offence of being in control of an unlicensed Part 3 house, contrary to section 95(1), is one of seven offences identified in section 40(3), 2016 Act in respect of which the First-tier Tribunal may make a rent repayment order.

When the tenancy expired in June 2019 the respondents moved out and Ms Daff returned to live in the flat. Eleven months later the respondents applied to the FTT for a rent repayment order. Shortly after being given notice of that application Ms Daff applied to Tower Hamlets for a licence but was informed, after explaining that the flat was her home, that is had been “exempted” from the selective licencing scheme.