DECISION OF THE RESIDENTIAL PROPERTY TRIBUNAL
SECTION 96(5) OF THE HOUSING ACT 2004
Ref: LON/00BB/HMA/2011/0010
Property: 12 Gloucester Road, London, E12 5JU
Applicant: London Borough of Newham
Respondent: Mr Ruhel Alom
Representative: ATM Law, Solicitors
Appearances: Mr K Routledge (Counsel)
Mr J Brassel EHO, MCIEH (witness) ) for
Ms J Watson ) Applicant
Team Leader (Housing/CT Benefit) )
Div) (witness) )
Mr R Yasin (Legal Executive) for
Mr R Alom (Witness) ) Respondent
Hearing:Tribunal: / 11 October 2011
Mrs V T Barran
Mr Trevor Sennett MA FCIEH
Mrs Roslyn Emblin JP
Date : / 29 November 2011
DECISION
The tribunal makes a rent repayment order of £3,500.00 against Mr Ruhel Alom for the reasons set out below.
Background
1. The tribunal received an application from London Borough of Newham (the Council) under Section 96 (5) of the Housing Act 2004 (the Act), for a Rent Repayment Order (RRO). The amount of Housing Benefit that the Council sought to recover from the Respondent (Mr Alom) was £10,000.39. This was stated to have been paid over a period (16/06/2010 to 15/05/2011) commencing 12 months less one day before service of the Notice of Intended Proceedings.
2. Detailed directions were issued and the matter came before us at a hearing on 11 October 2011. A similar case was heard at the same time and we are grateful for the courteous assistance of all those attending.
3. Part 3 of the Act gives local housing authorities power to designate an area as subject to selective licensing. As a consequence tenanted houses must be licensed, subject to certain exceptions not applicable in this case. The houses need not be HMOs. If a property is unlicensed the authority may prosecute the person having control or management of the house in the magistrates’ court and may also subsequently seek recovery of housing benefit from a Residential Property Tribunal by a Rent Repayment Order. The main statutory provisions are attached as an Appendix. It is of note that given the Council were basing their application on the further provisions of section 97 (2) the tribunal needs to be satisfied
(a) that a person has been convicted of an offence under section 95(1) in relation to the house, and
(b) that housing benefit was paid (whether or not to the appropriate person) in respect of periodical payments payable in connection with occupation of the whole or any part or parts of the house during any period during which it appears to the tribunal that such an offence was being committed in relation to the house,
the tribunal must make a rent repayment order requiring the appropriate person to pay to the authority an amount equal to the total amount of housing benefit paid as mentioned in paragraph (b).
This is subject to subsections (3), (4) and (8).
4. If we are so satisfied we must make a rent repayment order, subject to subsections 97 (3) (4) and (8) : In particular here
94 (4) But amounts paid in respect of rent or other periodical payments payable in connection with such a tenancy or licence may be recovered in accordance with subsection (5) and section 97.
The hearing
5. At the hearing we had before us a bundle from the respondent with statement of grounds in opposition and evidence including the appeal in the Magistrates Court, licence application, financial documents, and letter of good character from Mr Alom’s tenant. We also had a bundle of documents prepared by the Council which included the Statement of Reasons, the Notice of Intended Proceedings, the Application to the tribunal, witness statements of Mr Hari Singh, Mr John Brassel, Mr Cleve Jeffers, correspondence and emails, a letter from the Department for Communities and Local Government dated 24 November 2009 containing the notice creating Little Ilford a Designation Area for Selective licensing, visit summary and a witness statement from Ms Jo Watson the Appeals and Complaints Team Leader in the Housing and Council Tax Benefits Division. Mr Brassel, Ms Watson and Mr Alom gave oral evidence.
Requests for Dismissal and Adjournment
6. Prior to the hearing Mr Yasin, for Mr Alom, had asked the tribunal to dismiss the application on the basis of the applicant’s non compliance with directions. He explored renewal of this request. We explained the regulatory requirement for warning[1] and the possibility of a further hearing on dismissal and Mr Yasin did not pursue this.
7. Mr Routledge, for the Council, accepted his clients had failed to comply with Directions in that they had only sent their bundles to the respondent (and the tribunal) on Friday 7 October (less than 2 working days before the hearing). He personally had not seen Mr Alom’s bundle although it had been sent to the Council fao Mr Brassel. Mr Yasin had only seen the Council’s bundle two working days before the hearing.
8. Mr Routledge asked us to consider an adjournment. His client did not agree to our suggestion of payment of wasted costs for the day (estimated at approximately £620.00) and Mr Yasin said the respondent wished to proceed because his client had taken a day off work and he was under stress. We decided it was reasonable[2] to proceed but allowed all attending some time for reading and indicated that as the day went on either party could request more time or renew their request for adjournment.
9. At the end of the hearing we agreed further time for written representations on limited issues and for a detailed and accurate schedule of Housing Benefit to be produced.
Agreed Facts
10. We agreed a list of matters on which the tribunal needed to be satisfied and start with those that were not contentious:
Was the property in an area of selective licensing?
11. On 24 November 2009 the Secretary of State designated the area known as Little Ilford a selective licensing area under section 80(2) of the Act and it was agreed that 12 Gloucester Road, London E12 5JU (the property) is within that area. The designated selective licensing scheme was the first in LB Newham and came into effect on 1 March 2010 and continues to 28 February 2015. This was described by the Council as a pilot scheme. A consequence of this designation is that by virtue of section 85 of the Act a property would require a licence if it was rented out. No exemption applied under section 79(2).
Was the property occupied under a tenancy?
12. The property had been let, furnished as a whole, from 22 March 2010 on an Assured Shorthold Tenancy to Mr Gul Mohammad and Mrs Bibi Pashtana Mohammad,
Had the respondent been convicted of an offence (failure to licence)?
13. On 18 March 2011 Mr Alom was convicted by Stratford Magistrates Court, in his absence, of an offence under section 95(1) of the Act. The summons stated that the offence (failure to licence) was on or about 28 October 2010. There was a second offence of failure to state the nature of his interest in the property. Mr Alom was fined £700.00 and ordered to pay the Council’s legal costs of £929.87. No certificate of conviction was produced to us by the Council, who relied on a witness statement from Mr Hari Singh the officer attending the court hearing. We accepted this despite some errors, including reference to Mr Alom as “she”, as this was corroborated by Mr Alom who accepted there had been a conviction. On 11 July 2011 he had unsuccessfully applied to lodge an appeal out of time on the basis that he had not attended court, as he had not received the summons.
Had Housing Benefit been paid when an offence was being committed?
14. It was not disputed that housing benefit had been paid direct to Mr Gul Mohammad tenant of the property. The tribunal had asked for detail of the weeks and amounts in directions but Ms Watson informed us the information before us was not correct, so we allowed the Council time to provide an amended schedule following the hearing.
Issues in dispute
15. (a) How much housing benefit had been paid during a period when an
offence was being committed - section 97 (2) (b)?
(b) Are there any exceptional circumstances so that it would be unreasonable for the tribunal to order the respondent to pay all or some of the housing benefit – section 97(4)?
(c) We also spent some time on the question of whether the notice of intended proceedings had been validly served on the appropriate person see section 96 (7). This was not within the scope of section 97 (2) but we considered it could be relevant and indeed Mr Brassel had attended for this purpose. It was not disputed that Mr Alom was the appropriate person.
How much Housing Benefit been paid? When was the period during which an offence was being committed?
16. Ms Watson was called to confirm that housing benefit had been paid. She confirmed it had been paid to Mr Mohammad by BACS. She had only become involved in this case in the previous week and had not been involved in the notice of intended proceedings. Following the hearing the Council sent in a revised table seeking an increase from the amount given in the Notice of Intended Proceedings and in the application to the tribunal, with an amended total of £10,668.00.
17. The amended calculations provided by the Council were still incorrect as the periods shown in their tables for weeks 24/10/10 (should have been 25/10 as HB runs from Mondays) to 14/11/10 is 3 weeks not 2 weeks and 15/11/10 to 02/01/11 is 7 weeks not 6 weeks. It may be that payments were only made for 2 or 6 weeks but we consider it is more likely that the Council erred in production of the table. Normally such inconsistencies would have been discussed at the hearing, but it would not in our view be necessary or proportionate to reopen the hearing, given this information should have been correct at the time of the Notice of Intended Proceedings (NIP).
18. The legislation allows for HB to be reclaimed for a period up to 12 months prior to the NIP. The NIP, in this instance specified the period of claim as up to 15 May 2011. This date was pointed out by Mr Yasin at the hearing.
19. We prepared the table below extrapolated from the amended schedule provided by the Council to give relevant days, daily sums paid in Housing Benefit and totals and we have calculated the sums that could be claimed under the RRO. The relevant dates were as follows: the NIP was dated 17/06/11 [a Friday]. At the hearing Mr Alom acknowledged that he had received the copy at his other address 87 Forest Row and that he had telephoned Lisa Watts of the council on the 22/06/11. As the copy was posted second class, with a weekend in between, we accept that he did not receive it until that day. We have calculated the period under the NIP to take this into account with the extreme dates being from 23/06/2010 to 15/05/2011 (the end date noted on the NIP) which comes to a total of 326 days.
20. The total paid by our calculation in this period and for which there were no less than 10 different figures for HB, is £8,935.78
From / To / Weekly £ / Daily £ / No days / Totals £23/06/10 / 26/09/10 / 201.69 / 28.81 / 95 / 2737.22
27/09/10 / 24/10/10 / 169.79 / 24.26 / 28 / 679.16
25/10/10 / 14/11/10 / 169.87 / 24.27 / 21 / 509.61
15/11/10 / 02/01/11 / 188.25 / 26.89 / 49 / 1317.75
03/01/11 / 23/01/11 / 201.69 / 28.81 / 21 / 605.07
24/01/11 / 27/03/11 / 196.62 / 28.09 / 63 / 1769.58
28/03/11 / 03/04/11 / 202.62 / 28.95 / 7 / 202.62
04/04/11 / 10/04/11 / 204.07 / 29.15 / 7 / 204.07
11/04/11 / 08/05/11 / 182.14 / 26.02 / 28 / 728.56
09/05/11 / 15/05/11 / 182.17 / 26.02 / 7 / 182.14
Totals / 326 / 8,935.78
21. The licence was effective from 11 August 2011 and as no application for licence had been made during this period we are satisfied that an offence was being committed during the period shown in this table.
Are there any exceptional circumstances so that it would be unreasonable for the tribunal to order the respondent to repay all or some of the housing benefit?
22. We looked at this possibility, as envisaged by section 97(4) of the Act. It had been raised in Directions, but because there was insufficient time at the hearing we allowed Mr Routledge and Mr Yasin to send in submissions on ‘exceptionality’ afterwards.
23. We completely agree with Mr Routledge’s general submission on the ‘double jeopardy’ point and that sections 95 – 97 of the Act are concerned with restitution not punishment. We also agree with him that the carrying out of repairs are not exceptional circumstances. However we do not accept that the provisions of Part 3 of the Act preclude us from looking back at the circumstances prior to the issue of the service of notice of intended proceedings and the conduct and circumstances of the Council then. By analogy where there has been no conviction, section 96(7) clearly does focus on the conduct and circumstances of a local housing authority. The concept of reasonableness is necessarily broad as should be the exercise of our discretion.
Financial Hardship
24. We prefer Mr Yasin’s submission that we are entitled to consider whether Mr Alom is facing financial hardship and if he is that this should affect the amount of any RRO, to Mr Routledge’s view that ‘impecuniosity’ cannot be an exceptional circumstance particularly in the present economic climate. The wording of section 97 (4) ……. by reason of exceptional circumstances it would be unreasonable for that person to be required to pay (our italics) appears to us to include consideration of the personal circumstances of the respondent.