Rent Repayment Orders (RROs) under the Housing and Planning 2016: a round-up of recent decisions

Mathew McDermott provides a summary of recent Upper Tribunal (Lands Chamber) decisions made over the last couple of months dealing with RROs under the Housing and Planning Act 2016.

Kemp v DIP Systems (UK) Ltd [2025] UKUT 233 (LC) (Martin Rodger KC, Deputy Chamber President)

What’s of interest?

For the purposes of applying for an RRO, when is an offence ‘committed’? Put differently: at a time when all the elements of the offence in s.72 (1) are made out (in control of or managing HMO without licence where one is required) has the offence still been ‘committed’ where there exists a reasonable excuse for controlling/managing in those circumstances?

The answer: no – where such a defence is established no offence has been ‘committed’ for the purposes of the RRO provisions in the Housing and Planning Act 2016.

 Here, this meant the application to the FtT for an RRO was out of time, and the appeal against that decision was dismissed.

Defence of reasonable excuse: the decision also provides another example -- and no more -- of what might amount to a reasonable excuse for the purposes of s.72 (5) (a) Housing Act 2004. The landlord had tried to obtain an HMO licence in November 2022 but was not able to pay the required fee because of a fault with the local authority’s payment system. The FtT found that this meant the landlord had made out the defence under s. 72 (5) Housing Act 2004 because it had a reasonable excuse for managing the HMO without a licence from 16th November 2022.

Bannister v Akinremi [2025] UKUT 180 (LC) (Judge Elizabeth Cooke)

What’s of interest?

Against whom can an RRO be made? An RRO had been made by the FtT against someone for being in control of an HMO that required a licence but did not have one (s.72 (1) Housing Act 2004). That person (the Appellant in the appeal) was not the freeholder of the property but was a tenant of a room in the same building with the applicant. However, the applicant tenant only dealt with the Appellant and believed her to be the landlord: she was paid the rent, the deposit, she would arrange for repairs and granted the tenant in this application a verbal monthly periodic tenancy. She, however, said that she never kept the rent and always passed it on to the freeholder, with the same being said of the deposit.

The appeal challenging the making of the RRO was allowed: the freeholder, not the Appellant, was for relevant purposes the immediate landlord and it was that person (the freeholder) that was responsible for obtaining an HMO licence.

Pearton v Betterton Duplex Ltd [2025] UKUT 175 (LC) (Judge Elizabeth Cooke)

What’s of interest?

Taking account of rent paid in advance? The FtT had determined that it could not order repayment of rent that had been paid in respect of a period before the qualifying offence was being committed.

Here, the offence relied upon as the basis for the RRO application was the one in s. 72 (1) Housing Act 2004: managing or being in control of an HMO which required a licence and was not licensed.

The period of that offence in this case was 22 July 2022 to 21 January 2023 (when the tenancy began and when the tenants moved out, respectively).

Importantly, the tenants paid six months’ rent in advance on 20 July 2022. This was the only rent the tenants ever paid, having moved out on 21 January 2023.

Therefore, the rent had been paid when the offence was not being committed – two days before the tenancy began.

The appeal against the dismissal of the RRO application failed. The rent paid by the appellant tenant was not paid during the period in which the offence was committed as section 43(2) requires. That rent, therefore, could not be the subject of a rent repayment order.

In the face of the clear wording of the statutory provisions the Upper Tribunal would not, amongst other things, read section 43 Housing and Planning Act 2016 so as to prevent a landlord from stepping outside of the reach of an RRO when rent is received when an offence is not being committed.   

The UT noted that the Renters’ Rights Bill (in its current form, that is) will make such advance payments impermissible.

Gorgievski v Griffiths [2025] UKUT 161 (LC)

What’s of interest?

Time limits? A tenant may only apply for an RRO if the offence was committed in the period of 12 months ending with the day on which the application is made.

Here, an application for an RRO had been sent by email to the FtT at around 23:37hrs in the evening of 27 November 2023. If this was treated as having been made the next day – the 28 – the application would have been out of time.

However, following the Upper Tribunal’s earlier decision of Jevan v. Athansiadi [2024] UKUT 358, an application to the FtT for an RRO is ‘made’ on the day it was filed online by being sent in an email. This element of the appeal accordingly failed.

Reasonable excuse defence? 

However, the Upper Tribunal allowed the appeal against the making of an RRO, setting it aside and ordering that the application be remitted back to the FtT (to be heard by a different panel).

This is because a defence had been raised before the FtT that the landlord, it was argued, reasonably believed the property was already licensed. This defence was not properly considered by the FtT, which in turn meant that the FtT had not gone on to consider further evidence and make further findings.

The Upper Tribunal did not say that the belief that there was a licence amounted to a reasonable excuse. The point was that the argument had not been properly considered, hence it being remitted back to the FtT for a different panel to consider.     

Jamroz v Ali [2025] UKUT 265 (LC) (Judge Elizabeth Cooke)

What’s of interest?

Time limits? This Upper Tribunal decision of Judge Cooke refers to the above decision of Gorgievski.

The case itself concerned a property that had found itself until 28 February 2023 within an area designated as a selective licensing area.

The landlord, however, did not have a licence.

The appellant later made an application to the FtT for an RRO. This was done by email sent to the FtT at 23:15hrs on the evening of 27 February 2024. The FtT held that the application was out time and that it did not have jurisdiction to make an RRO.

In light of Gorgievski, above, that was wrong: the application was not out of time having been made on 27 February 2024, and the FtT had been wrong to find that it had no jurisdiction to make an RRO.

Also worth nothing is that the FtT had not just ended the matter by determining that it had no jurisdiction to make an RRO because the application was out of time (which, as the Upper Tribunal determined, was wrong). It had gone on to determine that, if the FtT did have jurisdiction, it was satisfied that the landlord had committed the particular offence, and it further determined that the amount that it would have ordered was £2790.

In short, the determination that it had no jurisdiction to make the RRO (‘out of time’) was set aside, but the landlord was now subject to a £2790 RRO.

15th Aug 2025

Mathew McDermott

Call 2008