Lets face it, everybody in PRS land apart from landlords, is fired up by the concept of Rent Repayment Orders, since the Housing and Planning Act 2016 removed the requirement that the council prosecute before a renter can apply for one and added harassment and illegal eviction, plus a range of other breaches, to the reasons one can be applied for, which allows renters to claim back 12 month’s worth of rent paid.
The notion being that a tribunal hearing comes without the intimidation and faff of a court case and where the renter can either represent themselves or call in someone who is not a lawyer to do the job for them.
Its potentially free of risk of costs but hold that thought.
So do they deliver on attractive promises? No. If this were commercial process Trading Standards would have government up in court for misleading advertising but lets start with the positives.
People do win them and awards can be impressive. The case handlers at the tribunal, certainly at Alfred Place in London, are lovely and genuinely helpful, which is more than can be said for the majority of county court listings clerks, who always seem to be thinking they are auditioning for a the part of Nurse Rached in a local Am-Dram production of “One flew over the cuckoo’s nest”……..that’s if you can even get them to answer the bleedin phone.
Also the instructions issued following a case management hearing are wonderfully unambiguous and come with clear steps and timescales. All you have to do is join the dots.
The judges introduce themselves and smile……for the first 2 minutes and there the positives stop.
The judges can be just as bad tempered and haughty as any county court case you’ve been part of.
Legal points at issue are no less arcane and procedural than any possession hearing and given the potential size of the awards, many landlords are employing barristers to rep them, so the poor renter, probably their first ever time in any sort of court/tribunal forum, finds themselves up against some serious legal firepower, on the back foot from the get-go..
At my last bum on seat hearing shortly before lockdown, myself, the judge and the landlord’s seriously heavyweight housing law barrister, spent three and a half hours arguing back and forth about the tribunal’s regulations and any subsequent jurisdiction they may or may not have, to just amend proceedings. We didn’t even get to the actual substance of the application.
In one decidedly Kafka-esque moment, we spent 20 minutes discussing the meaning of a comma on the application form and specifically whether a comma meant “of”.
The argument being that “Mr Smith, Gracefield properties”, should be read as “Mr Smith OF Gracefield properties”.
Now I’ve been around the block enough for me to just shake my head and laugh about such things but think about a poor renter enduring this nonsense and wondering what the hell is going on. 20 minutes arguing about the placement of a comma on a form???? Three and a half hours arguing back and forth on the implication of one tribunal regulation and not a single sentence voiced on the substance of the application itself.
That’s just one example of what can go on in a hearing but there are also procedural bumps in the road that result in RROs not necessarily doing what they say on the tin and despite the fact that there aren’t supposed to be costs awarded, in most cases we have done so far where the landlord has employed a solicitor, our clients have received letters threatening applications for specific amounts of unreasonable costs orders, in the region of £7,000 or £8,000 if they lose.
Spurious claims, that are no more than crude attempts to intimidate renters but which are often successful. Such solicitors should be ashamed of themselves but I’m sure they salve their conscious with the thought that they are just doing their job.
Up until June 2020 there was the case of Parker v. Waller, that was the biggest obstruction on the route to an award, where the Upper Tribunal had decided that a First Tier Tribunal had the discretion to deduct reasonable landlord expenses before making an award. Such expenses including mortgage payments and any fines or penalties already paid to a local authority.
This meant that while 12 month’s worth of rent might well be £20,000, a renter with a successful application might get just a fraction of the money available, in one legendary case last year the FTT warded a renter just £1.
Everyone fighting the RRO corner was pushing for an Upper Tribunal decision that would stop this nonsense and in June 2020 we got it, the case of Vadamalayan v. Stewart. The Upper Tribunal made it clear that deductions weren’t appropriate and a renter or their adviser considering making a application, could for once, make a reliable estimation of the size of the actual award.
Speaking to Guy Morris of Flat Justice at a recent online event however, it seems that in practice the FTT is ignoring Vadamalayan, as you can see from the shocking report on Guy’s blog, where he writes:-
“Some Tribunal panels have since found loopholes in Vadamalayan allowing them to ignore the spirit of this very clear ruling and to continue to slash RRO awards. – These rulings cock a snook at the Upper Tribunal, bypassing Vadamalayan. They continue to let criminal landlords off the hook and cheat tenants of rent which should be rightfully repaid to them.”
Safer Renting has several RRO applications stacked up ready to be heard, that were applied for with the enthusiasm ushered in by Vadamalayan but we’re now hoping the renters haven’t wasted their money.
Finally there is the problem in actually getting the money.
It’s a big mistake to think of a successful award as the finishing line. In reality its just the end of stage one.
Tribunal awards aren’t enforceable, so you have to fil in another form and apply to convert it into a county court judgement and even that doesn’t end the process. If the landlord ignores the order then you have to go back to court and get another order to actually collect the money and if they don’t have the money then you don’t get paid.
The other problem, that you need to be aware of before you even start, is the question of whether the respondent is a limited company, because if they don’t own the property you will find that they simply dissolve and the award just disappears with the limited liability status.
Yesterday I recorded a webinar for Anthony Gold solicitors on RROs to be aired in November. AG’s Robin Stewart asked me at the end if I thought RROs were a positive step and a welcome addition to the enforcement toolbox and I replied that they were. I really believe that they are the future but they also need the nonsense set out in this article addressing as a matter of some urgency, if a renter is going to be able to predict whether to even start and the tribunal system needs examining to make a hearing genuinely user friendly for lay people and not plunge them into an experience little different from representing themselves in the Court of Appeal
Ben Reeve-Lewis
Safer Renting
