[2025] UKUT 122 (LC)

I am going to refer to the parties as “the tenants” and “Mr Campbell”, to avoid the confusion that can flow from the fact that in the FTT the respondents to this appeal were the applicants and Mr Campbell the appellant was the respondent.

The tenants’ application to the FTT was made against both Mr Campbell and Ms Damaris Sanders. The FTT heard the application on 9 March 2023, by video link; the tenants were represented by Mr Clark Barrett of Represent Law, and Mr Campbell was unrepresented. The FTT’s 2023 decision addressed, first, two preliminary issues: (1) it admitted documents provided late by the parties, comprising information about licensing from the tenants and Mr Campbell’s financial information, and (2) it determined that Mr Campbell was the appropriate respondent. It appears that Ms Sanders was at the time the registered proprietor of the property, but Mr Campbell told the FTT that that was a temporary arrangement and that the property was being transferred back to him. In a written statement in his bundle in the FTT Mr Campbell said:

“Ms Sanders is the Trustee on behalf of the J Campbell who is the sole beneficiary and landlord for the tenancies. All responsibilities and benefits in regard to the property accrues to myself, J Campbell, only.”

The tenants, too, said that Mr Campbell was their landlord and that they paid rent to him. Accordingly the FTT accepted that Mr Campbell was the landlord and struck out the application against Ms Sanders.

The next section of the 2023 decision was headed “The issues”. The FTT found that the property had been unlicensed throughout the tenants’ occupation (they lived there for different periods between September 2020 and April 2022), and that therefore Mr Campbell had committed the offence under section 72(1) of the Housing Act 2004 of controlling or managing an unlicensed HMO. It noted that he applied for a licence on 10 September 2022. The FTT decided that he did not have a reasonable excuse, that it was appropriate to make a rent repayment orders, and that he must repay 70% of the rent for the relevant 12-month period to each of the tenants, after deductions for utilities.

In deciding the quantum of the order the FTT said that it was “very concerned by aspects of the landlord’s conduct”, for example, the management of the property and in particular the fact that Mr Campbell “used the tenancy conditions to ensure the property was properly run” (paragraph 111 of the 2023 decision). It was concerned about his “relaxed attitude” to the protection of the tenants’ deposits (Mr Campbell admitted that he had been slow to protect the deposits), and by the tone of some of his communications in connection with the deposit. It expressed concern about persistent damp but said it was difficult to work out the cause; it acknowledged Mr Campbell’s evidence that the damp came from a leak in an upstairs flat without making a finding about that evidence. It expressed “a major concern” about the size of the accommodation but noted Mr Campbell’s evidence that each bedroom was above the minimum standard for room sizes; it said that because of the lack of communal space other than the kitchen the property was unlikely to be licenced for four separate households once it was inspected by the local housing authority. It expressed “serious concern” about the fire alarm, which the FTT raised on its own initiative (paragraph 80 of the 2023 decision; it was not mentioned by the tenants in their witness statements). It said at its paragraph 119:

“The tribunal notes that the points it has raised about the conditions of the property may well suggest that category 1 hazards under the Housing Act 2004 exist at the property. The elimination of hazards is one of the aims of the London Borough of Hackney licensing provision and their potential existence concerns the tribunal.”

I pause to note that it is the role of courts and tribunals to make findings, not to express concerns. The “potential existence” of hazards, whatever that means, cannot be a relevant consideration in the determination of the amount of a rent repayment order. Nor can “concerns”. The parties have given evidence and are entitled to findings of fact on the evidence they have given. Furthermore, in raising concerns itself when they formed no part of either party’s case the FTT was treading dangerous ground.