Rakusen v Jepsen & Ors

Appellants

Edward Fitzpatrick

Timothy Baldwin

(Instructed by Hammersmith & Fulham Law Centre)

Respondent

Tom Morris

(Instructed by Winckworth Sherwood LLP (London))

Intervener - National Residential Landlords Association

Robert Brown

Rosamund Baker

(Instructed by JMW Solicitors LLP (London))

Intervener - Safer Renting CIC

Justin Bates

Charles Bishop

(Instructed by Anthony Gold Solicitors LLP (London Bridge))

lord briggs and lord burrows (with whom Lord Lloyd-Jones, Lord Kitchin and Lord Richards agree):

1. Introduction

1. This appeal is about Rent Repayment Orders (“RROs”). They are an important sanction against rogue landlords who commit certain types of offence in relation to the private rented sector of the housing market. Along with other sanctions, the aim of RROs is to encourage landlords to comply with the law and to drive them out of the market if they do not. They were originally introduced in relation to the non-licensing of houses in multiple occupation (or subject to a selective licencing scheme) by the Housing Act 2004 (“the 2004 Act”) but are now governed in England (but not Wales) by Chapter 4 of Part 2 of the Housing and Planning Act 2016 (“the 2016 Act”) under which they enjoy a greatly extended scope.
2. The jurisdiction to make RROs is conferred on the First-tier Tribunal (“the FtT”). In bare outline, where the relevant conditions are satisfied, the FtT may by an RRO require a landlord to repay an amount of rent paid by a tenant, or to pay a local housing authority an amount in respect of universal credit awarded in respect of rent, where the landlord has committed one or more of a list of housing-related offences.
3. The question to be decided in this case is whether, unlike its predecessor, the 2016 Act enables the FtT to make an RRO not merely against the immediate landlord of the tenant, who paid the rent or who was awarded universal credit in respect of the rent, but also against a superior landlord. The FtT decided that it could make an RRO against a superior landlord of the property let to the applicant tenants, and the Upper Tribunal (“UT”) agreed. But the Court of Appeal reached the opposite conclusion. The tenants now appeal to the Supreme Court.
4. Although counsel ranged far and wide through the 2016 Act, the 2004 Act, and the pre-legislative materials, it is our view that the answer to the question posed turns on a short point of statutory interpretation that yields a short answer. That answer comprises a straightforward interpretation of the words in section 40(2) of the 2016 Act: see paras 24 - 33 below. The same answer is on balance supported by, or at least is consistent with, a range of additional factors that go to the wider context and purpose of section 40(2): see paras 34 - 59 below.
5. The next three sections (paras 6 - 23) summarise the factual background and the proceedings below and set out the relevant provisions of the 2016 Act.

2. The…