Back in April 2019 the national press picked up on a success story of a group of students who won a Rent Repayment Order against their landlord[1], kick starting a wave of interest from tenants and advisers alike
One of the crucial items we tick off our list at Safer Renting when interviewing one of our referred clients these days is whether or not the possibility for an RRO exists.
In fact, RROs have been around for quite a while, having been ushered in by the Housing Act 2004 but they weren’t flavour of the month until comparatively recently.
Why? Well, as with retaliatory eviction,[2] what started as a good idea was, upon drafting, turned into a chocolate teapot legislation, with the creators of the law presumably concerned at being accused of an anti-landlord bias that they built in so many restrictive and prescriptive covenants that it neutered itself.
Basically an RRO allows the council or the renter to claim back 12 months worth of rent paid. The council can claim back housing benefits paid and the renter any sums they paid in rent.
Originally RROs were only available where the landlord had breached licensing regulations and the renters couldn’t claim an RRO unless the council had prosecuted the landlord first. This threw up a couple of problems that the drafters of the law didn’t factor in.
Claiming an RRO is time consuming and the process of prosecuting a landlord even more time consuming and sapping of resources. If housing enforcement teams were to claim back benefit paid, any money would automatically go back to the benefits section, which sits under the finance directorate, not the directorate that environmental health or licensing sits under.
So officers claiming an RRO on this basis would have to do all the work with nothing to show for it and the people in the finance teams who could claim back their own benefits, would see such work as the task of housing enforcement and nothing to do with benefits.
This conflict of interest also applied for renters. What is the incentive for housing enforcement to prosecute so that the tenant can apply for an RRO, when there might be other quick wins, such as landlord compliance, albeit late?
Then the Housing and Planning Act 2016 finally woke up the sleeping giant.
It added other offences that an RRO can be used for and now can be claimed for harassment, illegal eviction, violent entry, breach of a prohibition order, breach of an improvement notice and breach of a banning order. Most importantly the HPA took away the need for the council to have prosecuted first, so the renter can go straight to tribunal without so much as a warning letter first.
Now we have a useful weapon in the arsenal for the protection of tenants and the righting of wrongs. Or do we?
Wisely government decided that rather than give the task of hearing RROs to the overstretched county court they would allocate the task to the First Tier Tribunal, theoretically a more user friendly experience and unlike court, you don’t need a lawyer to represent but the history of FTT decisions so far have been frustratingly inconsistent.
Earlier in 2019 the London Borough of Camden produced interesting figures of tenant claimed RROs they had advised on. Eight awards totalling an impressive £74,600 and all for licensing breaches but the awards themselves ranging from £31,260, right down to just £580.
Obviously the variation in amounts will depend on things like how much rent the applicant had paid and the period that could be claimed for but this isn’t the only reason.
To date the FTT have not exactly overwhelmed applicants or their advisers with predictability.
In December 2019 the Upper Tribunal overturned an earlier decision of the FTT to award just £1 to a tenant[3] A decision making a mockery of the enthusiasm created by the decision in the Leeds case and one that causes people working with tenants to help them claim RROs to be very cautious in advising of the likelihood of success.
One of the biggest problems that seriously needs resolving, is the decision in the case of Parker v. Waller, back in 2012, which clarified the point that the FTT can discount any sums paid to the council in fines or penalties, from the final award.
In Parker the discounted amount was just £525 from a final award of £15,423.63, so I doubt Parker went home that day feeling they had been denied justice but what happens when a council fines a landlord a sum that is more than the renter could claim in an RRO?
There is a legal argument that the purpose of RROs changed with the HPA and is now punitive as well as a deterrent and that as a result Parker needs revising but it will take a trip to the Upper Tribunal to do so.
The other perennial problem for those working in the seriously rogue end of the market, is the problem with identities of landlords and agents using aliases and fake companies to muddy the waters about who is who.
There has been a frustrating history of applicants being told by the tribunal that they are pursuing an award against them wrong person, thus wasting time and money.
However a recent UT decision has helped massively in clarifying that the applicant can choose who to go after and the FTT cant interfere.[4] Theoretically they can go after both landlord and agent, to avoid the equally perennial problem of dodgy agents folding up their limited company to avoid paying anything.
The case was ridden to this satisfactory conclusion by the good folk over at Get Rent Back, a campaigning CIC helping tenants with applications and representing in hearings.
So renters have a small but growing group of advocates, including Justice for Tenants and indeed Safer Renting, who are not only developing the skills and knowledge to fight their client’s corner but also with an eye firmly on taking cases to the Upper Tribunal to create a climate where RROs can be a reliable and predictable route for people seeking redress.
I’m cautiously optimistic that the kinks in RROs will get ironed out as time progresses. We aren’t there at the moment though but lets hope that by the end of 2020 a few more landmark decisions will have gone through and we will be able to more confidently advise our renters of their chances of success.
By Ben Reeve-Lewis
Notes
[1] https://www.bbc.co.uk/bbcthree/article/745ea8b2-2ef2-46ee-89ac-3e596b0efeb1
[2] Section 33 Deregulation Act 2015
[3] https://nearlylegal.co.uk/2019/12/ftt-fails-natural-justice-on-tenants-rro-application/
[4] https://getrentback.org/blog/2019/11/01/rro-applicants-the-power-is-in-your-hands/
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