[2025] UKUT 205 (LC)

If the respondents’ applications had been made on similar facts to those in North Lodge but against different landlords and in respect of different properties, Mr Penny’s argument would be absolutely right. That would be the case, I think, even if the applications had nevertheless been stayed behind the North Lodge litigation in light of their similar facts.

But as it is, it is difficult to see how the outcome was fair when there was no difference in the background facts. As Mr Penny said, the FTT had made it clear to the parties that there would be a fresh assessment and that the FTT was going to – or at least was prepared to – make fresh findings The unfairness arises from the fact that the FTT did not make fresh findings. The facts were identical. The delay was the same. The landlords’ conduct made no difference to the amount of the award. Had the FTT found that there was in some or all of these 113 applications some conduct by the appellants that made a difference, then again it would have been entitled to form a different view as to the outcome, but it did not; exactly as in the North Lodge litigation conduct made no difference.

What appears to have weighed with the judge was the desirability of consistency with the wider body of decisions about rent repayment orders, made by the Upper Tribunal and inevitably relied upon as guidance by the FTT. That reliance is legitimate provided that it is borne in mind that none constitutes a precedent about the amount of the award. The judge clearly had that in mind. He had in mind also the wish to ensure a degree of consistency from one case to another. He disagreed with the FTT’s assessment of the right level of order in the North Lodge case and followed his own view, guided by a number of Upper Tribunal decisions.

That approach could not have been faulted in a case where the order was made against a different landlord in respect of different properties. But the common factor here as to the properties and as to the identity of one of the landlords means that the inconsistency was unfair; the same landlord was being treated differently by the FTT in respect of the same property and on the same facts. It is impossible not to regard that as unfair and irrational, or at least a failure to take into account a relevant consideration. That is the case regardless as to whether the parties or the FTT regarded the North Lodge litigation as being in some way unofficial lead cases; the argument about rule 23 is unnecessary. The problem is that the same facts in the same situation have led to different outcomes for the same landlord.

The FTT’s decision is set aside. I have considered whether I should remit the matter to the FTT for the judge to conduct a hearing at which the parties would have the opportunity to put forward their arguments as to whether the same facts should give rise to a different conclusion. I conclude that that would not be proportionate, given the amount in dispute in the context of this group of landlords and given the amount in dispute in respect of each individual tenant. I substitute the Tribunal’s own decision that 50% of the rent is repayable in each case.