CHAPTER ONE – AN INTRODUCTION TO RENT REPAYMENT ORDERS IN ENGLAND
A rent repayment order (“RRO”) as discussed in this book is essentially what the name suggests it would be: an order usually requiring rent to be repaid by a landlord usually to their tenant or tenants.
In simple terms, if the landlord is said to have committed a particular prescribed offence then it may be open to their tenant to seek an order requiring them to repay an amount contained in the order.
A similar procedure exists for the benefit of local housing authorities (“LHA”) where universal credit or housing benefit has been paid.
The regime relating to these RROs in England on which this book focuses is to be found in Chapter 4 within Part 2 of the Housing and Planning Act 2016 (“the HPA 2016”).
Chapter 4 currently contains only twelve sections that comprise its RRO framework, and it is illuminating in terms of identifying the purpose of an RRO to note the title of Part 2 within which this framework is found: “Rogue Landlords and Property Agents in England”. The scheme acts to ensure housing standards are complied with or, where they are not, to drive out from the sector those rogue landlords.
These twelve sections comprise the main framework for RROs in England on which this book focuses. They explain, amongst other things, the meaning of an RRO, who can get them, time limits in respect of applying for one, who may be subject to them, when they are available, how to work out the amount of them and where to bring an application for one – amongst other matters.
The purpose of this book is to explain how this regime applies in England.
A broader reach
As will be shown, there has in recent years been a rise in tenants seeking RROs against their landlord.
This rise is primarily due to the fact that the rent repayment order regime as contained in the Housing Act 2004 was in comparison to the regime on which this book focuses – the 12 provisions contained in Chapter 4 of Part 2 of the HPA 2016 – narrower in its scope and application.
Chapter 4 of Part 2 of the HPA 2016, however, introduced a regime relating to RROs that was in its scope much broader – and in significant ways.
Furthermore the breadth of this RRO regime will continue to grow. This is because of a number of proposed changes relating to it contained in the Renters’ Rights Bill 2024–25. The Bill was introduced to the House of Commons on 11th September 2024 by Sir Kier Starmer’s Labour government. It received its second reading on 9th October 2024 and, at the time of writing, has just completed Committee Stage.
Because of the size of the current Government’s majority in the House of Commons it is highly likely that the Bill will pass and probably in the form discussed in this book, although as at the time of writing it is still possible that provisions will change, so the precise wording of the final changes is not known for certain.
What follows is a brief summary of this legislative development. What it shows, however, is a point that is central to the regime itself, namely that RROs exist to try to force landlords in the private rented sector to comply with the law and, in particular, to meet certain housing standards. Those that do not comply will be penalised – and may be forced out of the market altogether.
RROs are one tool to be used to reach these ends.
The Rent Repayment Order regime as contained in the Housing Act 2004
As referred to above the making of a ‘Rent Repayment Order’ – the power to order a landlord to repay to their tenant certain sums of money in certain prescribed situations – was not created by Chapter 4 in Part 2 of the HPA 2016.
The Housing Act 2004 gave a right to LHAs or occupiers to apply to the First-tier Tribunal (Property Chamber) (“the FTT”) to seek an order that certain sums paid by them during a particular period be repaid.
The general framework within the relevant parts of the Housing Act 2004 could broadly be summarised as permitting applications to the FTT in the following circumstances:
- Applications made by an LHA or an occupier (a tenant or licensee) seeking an order requiring repayment of money paid usually to the landlord – most typically, but not necessarily, this would be rent or, in the case of the housing authority, housing benefit or universal credit;
- The payments in question would had to have been made during a particular period of time that related to when a particular offence had been committed;
- In this respect, it might have been alleged that the landlord had committed an offence concerning a failure to obtain a particular licence relating to the occupation of the property in circumstances where the law required there to be one; and
- There was a 12-month time limit or ‘limitation period’ in which such applications to the FTT would have to be made that was linked to the occurrence of a particular event. This ultimately depended upon the nature of the application in question (one such event, for example, was the date of the conviction for the applicable licensing offence).
As shown in this book much of this framework is generally speaking contained within the RRO regime in the HPA 2016.
There exists, however, key differences between the regime in the Housing Act 2004 and the regime dealt with in this book that is contained in Chapter 4 of Part 2 of the HPA 2016:
- The offences: under the Housing Act 2004, an application for an RRO could only be made in relation to certain ‘licensing offences’: in simple terms, where a landlord was required by law to have a particular licence relating to particular occupied property, but did not have such a licence. As stated below, the regime in the HPA 2016 expands the list of offences beyond those relating just to licensing;
- Need for a conviction: if a tenant wanted to make an application to the FTT for an RRO under the Housing Act 2004 they had to satisfy the FTT that the landlord had been convicted of one of the applicable licensing offences or that the LHA had received an RRO itself in relation to housing benefit or universal credit;
- Tenants not empowered: the natural consequence of the above was that in reality the tenant had minimal power of their own, as their application would be dependent upon others to have already taken certain steps successfully in respect of their landlord e.g obtaining a conviction.
The RRO regime in Chapter 4 of Part 2 of the Housing and
Planning Act 2016
From 6th April 2017 by virtue of Part 2 of the HPA 2016 the regime for RROs in England was expanded. As referred to above, this was part of a desire to deter “Rogue Landlords and Property Agents in England”.
In contrast with the regime in the Housing Act 2004 before it, an application for an RRO could now be made by a tenant or an LHA to the FTT against a person who was alleged to have committed one of seven listed offences:
- violence for securing entry;
- eviction or harassment of occupiers;
- failure to comply with improvement notice;
- failure to comply with prohibition order, etc;
- control or management of unlicensed HMO;
- control or management of unlicensed house; and
- breach of a banning order.
Section 40 (1) & (2) of the HPA 2016 is central to the RRO regime in the HPA 2016:
“(1) This Chapter confers power on the First-tier Tribunal to make a rent repayment order where a landlord has committed an offence to which this Chapter applies.
(2) A rent repayment order is an order requiring the landlord under a tenancy of housing in England to—
(a) repay an amount of rent paid by a tenant, or
(b) pay a local housing authority an amount in respect of a relevant award of universal credit paid (to any person) in respect of rent under the tenancy…”
The ‘offence’ in question is not now one in respect of which the landlord must be ‘convicted’. The FTT must instead be satisfied beyond reasonable doubt that the landlord has ‘committed’ the offence. Furthermore, although the licensing offences relating to the RRO regime within the Housing Act 2004 remain as the list above shows there has been added five additional offences relating to a wider range of dealings than just the licensing of particular property.
In Chapter 2 these offences – which effectively act as a gateway for the making of an application for an RRO – are addressed in detail.
Another change brought about by the introduction of the RRO regime within the HPA 2016 relates to the approach taken by the FTT in determining the amount that shall be payable under an RRO. This approach to quantification of the orders is the subject of Chapter 4.
Likely changes to the RRO regime in the Housing and Planning Act 2016 by the Renters’ Rights Bill 2024-25
On 11th September 2024 Sir Kier Starmer’s Labour government published the Renters’ Rights Bill.
At the time of writing the Bill had received its second reading in the House of Commons and had just completed the committee stage.
As a result, it is impossible to know yet in exactly what terms the RRO regime in the HPA 2016 will be changed. That it will be changed and will be changed substantially, however, is something about which one can be almost certain – this following from the substantial majority that the government currently enjoys in the House of Commons.
The approach taken in this book to the relevant changes to the RRO regime in the HPA 2016 proposed by this Bill is to discuss each proposal as it applies to the current law. In other words, rather than list these proposed changes likely to be brought about by the Renters’ Rights Bill in a standalone chapter, this book instead discusses each proposal in its proper context at the end of each chapter, such as in Chapter 2 in respect of the grounds that permit an application for an RRO and how those grounds are to be expanded, and in Chapter 4 in relation to how the approach to the assessment of the amount of the RRO is likely to change.
What is clear, however, is that the general direction in which the RRO regime has been going is continuing: the scope and application of RROs is likely to widen further as successive governments see them as one way of deterring rogue landlords and enforcing compliance with important housing laws and standards.
The Ministry of Housing, Communities & Local Government has published its “Guide to the Renters’ Rights Bill” (updated 26th September 2024). As this guidance says in respect of the Government’s wishes for the RRO regime in the HPA 2016 in England:
“We are introducing a package of measures to strengthen rent repayment orders. The measures will increase the deterrent effect of rent repayment orders, make them easier and more appealing for tenants and local authorities to pursue and expand them to cover more of the sector”.
Although it is possible that the Bill may change in relation to RROs, what is almost certain is that the growth seen in recent years in applications for RROs to the FTT is likely to continue. The proposals in the Bill as currently drafted include, for example, the doubling of the maximum amount of rent a landlord can be ordered to pay, further adding to the number of offences that would allow an application for an RRO to be made and extending their reach further by permitting applications to be brought against superior landlords and company directors.
Summary
- This book deals with RROs in England, namely the provisions in Chapter 4 of Part 2 of the Housing and Planning Act 2016;
- The following chapters deal with key questions that any practitioner working in this area of law is likely to need to know the answer to: what are RROs under the HPA 2016? In what circumstances can one be sought and awarded? To and against whom? How much is one likely to be? What is the procedure for making, defending and thereafter challenging RROs?
- The scope of these orders has increased since the Housing Act 2004, particularly in respect of the offences or ‘gateways through which’ an application for an RRO may be made and because of the removal of a requirement that the landlord be convicted of a particular offence;
- Moreover, via proposals in the Renters’ Rights Bill extensive and important amendments are expected to the RRO regime in the HPA 2016, and these will be discussed throughout the chapters that follow;
- Considering the size of the current Labour government’s parliamentary majority, it is very likely that the proposals within the Renters’ Rights Bill will become law and, therefore, that the increase in the number of applications for RROs is likely to continue.