[2025] UKUT 175 (LC)

The appellant makes a number of points. First, he suggests that Kowalek was wrong. The Tribunal is bound by the Court of Appeal’s decision in Kowalek, and in any event I see no reason to suppose that it was incorrect; it follows from a plain reading of the statute.

The appellant argues that the tenants were required to pay the rent in advance and that that has allowed the landlord to sidestep justice; the principle in Kowalek opens a loophole for landlords to which students are particularly vulnerable because they generally have to pay in advance. He suggests that the statute should be read in such a way as to adapt it so that lump sum payments made in advance can be repaid. I cannot accept that that is possible; the wording is clear, and to read it down or disregard it in order to widen the possibility of a rent repayment order would be an impermissible mis-reading of the statute. The appellant may be right that the wording creates a loophole; I note that the Renters’ Rights Bill will, if enacted in its current form, make such advance payments impermissible.

The appellant points to the fact that the tenant in Kowalek paid three months’ rent in advance. So he did, but there is no suggestion that the payment was made before the offence started to be committed; no assistance can be found for the appellant from the facts of Kowalek itself. He also suggests that since the payment was made in respect of the period commencing on 22 July 2022 it could only be “applied” on that date. By that I understand him to mean that the landlord was not entitled to the payment until 22 July. But that cannot be right; the tenancy agreement was completed and required a payment on the date when it was signed, and the landlord was entitled to that six months’ rent even if the tenants chose never to go into occupation.