[2025] UKUT 175 (LC)

Section 20 of the Housing and Planning Act 2016 gives the FTT jurisdiction to make a rent repayment order where a landlord has committed one of the offences set out in a table, of which item 5 is the offence created by section 72(1) of the Housing Act 2004 of managing or being in control of an HMO which required a licence and was not licensed.

There are several provisions about timing in the sections that follow. Section 41(2) provides:

“(2)

A tenant may apply for a rent repayment order only if —

(a)

the offence relates to housing that, at the time of the offence, was let to the tenant, and

(b)

the offence was committed in the period of 12 months ending with the day on which the application is made.”

Those conditions were met in this case. Section 43 makes provision about the amount the landlord can be ordered to repay, and it says this:

“(2)

The amount must relate to rent paid during the period mentioned in the table.

If the order is made on the ground that the landlord has committed	the amount must relate to rent paid by the tenant in respect of
an offence mentioned in row 1 or 2 of the table in section 40(3)	the period of 12 months ending with the date of the offence
an offence mentioned in row 3, 4, 5, 6 or 7 of the table in section 40(3)	a period, not exceeding 12 months, during which the landlord was committing the offence

In the present case the period during which the landlord was committing the offence was from 22 July 2022 to 21 January 2023. On a straightforward reading of section 43(2) the amount that he could be ordered to repay had to relate to rent paid “during” that period and also to rent paid “in respect of” that period.

In Kowalek v Hossanein Ltd the Tribunal (the Deputy President, Mr Martin Rodger KC) had to decide whether it was possible to order a landlord to repay rent paid after the landlord had ceased to commit the relevant housing offence; the rent in question was paid late and discharged the tenant’s liability for rent falling due while the offence was being committed. He decided that that rent could not be the subject of a rent repayment order; the statute imposed two separate requirements that the rent be paid both “in respect of” the relevant period and “during” that period. One requirement was met – the arrears were paid in respect of the period of the offence – but the other was not, because the arrears were paid after the offence had ceased to be committed. That decision was upheld on appeal, at [2022] EWCA Civ 1041.