Upper Tribunal Upholds Rent Repayment Order Despite Missing Documents in First-tier Tribunal

Neutral Citation Number: [2026] UKUT 239 (LC) Case No: LC-2025-695 IN THE UPPER TRIBUNAL (LANDS CHAMBER) AN APPEAL AGAINST A DECISION OF THE FIRST-TIER PROPERTY CHAMBER Ref: LON/OOBK/HMF/2023/0196 Royal Courts of Justice, Strand, London WC2A 2LL 26 June 2026 TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007 HOUSING – RENT REPAYMENT ORDER – procedural irregularity – documents filed by party not available to FTT when decision to order rent repayment made – whether rendering decision unjust – appeal dismissed BETWEEN: [APPELLANT] Appellant -and- [RESPONDENT] (1) [RESPONDENT] (2) [RESPONDENT] (3) Respondents 12 Arden Crescent, London E14 Martin Rodger KC, Deputy Chamber President 8 June 2026 [APPELLANT] , in person [RESPONDENT] , [RESPONDENT] and [RESPONDENT] , in person © CROWN COPYRIGHT 2026 No cases are referred to in this decision Introduction 1. The issue in this appeal is whether a decision of the First-tier Tribunal, Property Chamber (the FTT) to order repayment of rent was unjust because of irregularities in the conduct of the proceedings. The irregularities in question were, first, that a document supplied to the FTT in good time before the hearing was wrongly thought by the FTT to have been supplied late, and, secondly, that the document was wrongly thought by the FTT not to be available for its consideration.

2. The appeal is against an order of the FTT made on 23 September 2025 by which it ordered the appellant, [APPELLANT], to repay to the respondents, his former tenants of 12 Arden Crescent, the following rent which he had received from them: to [RESPONDENT], £3,166.50; to [RESPONDENT], £2,387.67; and to [RESPONDENT], £2,764.59. These sums, totalling £8,318.76, represented 35% of the rent paid to [APPELLANT] by the respondents while he did not hold the licence required under Part 2 of the Housing Act 2004 for a lawful letting of 12 Arden Crescent.

3. The respondents’ application for a rent repayment order under section 41 of the Housing and Planning Act 2016 was first determined by the FTT on 11 June 2024 when an order was made for repayment of sums representing 50% of the rent received by the appellant from the respondents. But that decision was set aside by this Tribunal (Judge Cooke) on 8 November 2024 and a direction was given that the application be redetermined by a differently constituted FTT panel. The decision of 23 September 2025 which is the subject of this appeal is the FTT’s second decision.

4. Permission to appeal the second decision was granted by this Tribunal. The hearing of the appeal was conducted remotely and was attended by all four parties, each of whom represented themselves. Background 5. 12 Arden Crescent is a four-bedroomed house in which the respondents rented rooms with shared facilities, each having entered into their own separate agreement with the appellant between April and August 2022. While they were in occupation the property was a house in multiple occupation (“HMO”) as defined by the Housing Act 2004 . For so long as it was occupied by at least three people living in two or more households it fell within an additional licensing scheme operated by the London Borough of Tower Hamlets and required a licence under section 61 of the Act .

6. It is an offence under section 72(1) of the 2004 Act to be in control of or manage an HMO that is required to be licensed but is not. Two relevant defences are supplied by section 72(4) and (5): “(4) In proceedings against a person for an offence under subsection (1) it is a defence that, at the material time– (a) […] (b) an application for a licence had been duly made in respect of the house under section 63 […] (5) In proceedings against a person for an offence under subsection (1), (2) or (3) it is a defence that he had a reasonable excuse– (a) for having control of or managing the house in the circumstances mentioned in subsection (1) […]” 7. The appellant was aware of the licensing scheme and owned four rental properties in Tower Hamlets which would fall within it if they were occupied by three or more tenants. During 2020 his properties did not meet the qualifying conditions as there was limited demand for shared accommodation during the covid pandemic. As demand picked up again the appellant wished to be able to let his properties to up to four tenants, so he took steps to obtain the necessary licences by carrying out improvements and registering an online profile on Tower Hamlets’ licensing portal.

8. By June or July 2021, the appellant was ready to let but says that he was uncertain whether the smoke detectors and fire alarms he had installed were of the appropriate standard. He explained to the FTT that he was aware from reading Tower Hamlets’ licensing website that an application for a licence could be rejected by the Council, without reimbursement of the application fee, if the application itself was incomplete or defective or if the property did not meet the required standard. To avoid that outcome and to be sure that his applications were compliant and would pass, the appellant wanted a member of the Council’s licensing team to check them before he paid the necessary fee. For that reason he completed licence applications for his four properties and saved them on the portal but did not pay the fee. Instead he contacted the licensing team to ask for his applications to be reviewed first. 9. [APPELLANT] gave an account to the FTT of conversations which he said he had had with members of the Council’s licensing staff which led him to believe that he could safely wait for his licence applications to be checked and approved before paying the fee. His case is that he told officers he wanted his pending applications to be treated as valid applications and asked how they would be treated while he was waiting for them to be reviewed. He was informed there was a backlog of 9 to 12 months in processing licensing applications but that, provided he had supplied all the necessary information, his applications would be back dated to the date he had saved them on the portal and had asked for them to be checked. On that basis he understood that he could safely let each of his properties to three or more tenants straight away without first paying the fee. And that is what he did at 12 Arden Crescent; he let a room in the property to a third tenant which pushed occupancy of the property above the level at which a licence was required. The proceedings before the FTT 10. The respondents’ application for rent repayment orders came before the FTT at a hearing held over two days on 22 March and 13 May 2024. The hearing was adjourned to the second day to enable the Council, one of whose officers represented the respondents, to submit evidence at the FTT’s request explaining how its online licensing portal operated. The appellant had explained that he had saved his application for a licence in July 2021 and waited for the Council to contact him to check that its contents were compliant before submitting it. When he next looked for the application on the portal, in December 2022 or January 2023, he found that it had disappeared. It was his case that he had then had a number of telephone conversations with members of the Council’s staff in which he had threatened to make a complaint about the disappearance of his application. He said that he had been reassured by the person he spoke to that if he did not make a complaint but submitted a new application promptly, his application would be backdated to the date in July 2021 when he had first saved the original draft on the portal. He had then duly submitted an application and paid the required fee on 14 January 2023.

11. Having heard the appellant’s evidence, the FTT wanted to know more about how the portal worked and whether an application could simply disappear. At the resumed hearing it was explained by one of the Council’s licensing team that an application could indeed be saved on the portal in draft without being submitted but that it would then disappear from the system if the fee was not paid and the application submitted within 90 days. According to [APPELLANT] that information had not appeared on the portal when he spoke to Council staff in June and July 2021. The FTT panel asked if he could identify the members of staff whom he had spoken to but he was unable to do so at the hearing.

12. After the second and final day of the original FTT hearing on 13 May 2024 the appellant provided the FTT with further information in an email sent on 16 May. He explained that he had been able to remember the first names of four members of staff whom he had spoken to. He had also approached his phone company and had obtained itemised records, which he provided, showing that he had contacted the Council’s licensing department 12 times between 6 and 12 January and had two conversations about his missing application with Council officers whom he named lasting 28 and 32 minutes respectively.

13. The FTT did not refer to the email of 16 May 2024, or to the itemised phone records included with it, when it issued its first decision of 11 June 2024.

14. The appellant appealed to this Tribunal against the decision of 11 June. One of his grounds of appeal was that the FTT had not dealt with his evidence adequately and had not explained why it rejected his defence of reasonable excuse based on what he claimed to have been told by Council officers in June and July 2021. This Tribunal took the view that the FTT had failed properly to address the appellant’s evidence. It had rejected his evidence that he believed he could safely proceed without explaining why and without making any findings of fact about the advice he claimed to have received. The appeal was allowed and the matter was remitted to the FTT for redetermination.

15. The FTT held a second hearing before a different panel. In advance of that hearing it gave a direction on 25 April 2025 that the parties could rely on the documents they had “already submitted for the original determination in June 2024” but that if they wished to rely on additional evidence they should make an application for permission to do so.

16. The FTT’s directions did not mention the material which had been filed by the appellant on 16 May 2024, three days after the original hearing on 13 May and about four weeks before the decision was handed down on 11 June. The FTT later said that its directions had been clear but whether they were or not, the appellant assumed that material which had been filed before the original determination could be relied on again and need not be the subject of a separate application. That does not seem to me to have been an unreasonable interpretation of the FTT’s direction. The FTT’s second decision 17. The FTT referred at the start of its decision to its direction of 25 April regarding the use of additional evidence, then said this: “[APPELLANT] told us that there were further documents that he sent to the Upper Tribunal when he lodged his appeal which he wished to rely on. He accepted that he had not made any application to rely on those documents in accordance with the directions dated 24 April 2025. We had no access to those documents in any event.” This passage discloses two misconceptions on the part of the FTT. The first is that the documents [APPELLANT] tried to rely on without making a prior application were documents he had sent to this Tribunal in connection with his first appeal. They were not. They were the documents he had sent to the FTT on 16 May 2024 before it issued its first decision. The second misconception is that the FTT had no access to the relevant material. The panel may not have had the material before them, but it had been sent to the FTT and could presumably have been made available had it not mistakenly been thought that it had been supplied only to this Tribunal.

18. The FTT correctly identified the main issue as whether the appellant had a reasonable excuse for letting the property without a licence which would mean he had not been guilty of any offence during the period from 2 February 2022 when the property was let to three tenants, and 13 January 2023 when he had belatedly applied for a licence.

19. The FTT gave a thorough account of the appellant’s evidence, taken from his detailed witness statement. His case was essentially that his conversation with a Council officer in June or July 2021 led him to believe that his pending applications in respect of the four properties would be reviewed, but that there was a 9 to 12 month backlog. Until the review his pending application would be treated as sufficient compliance with the additional licencing scheme. He and his family then experienced a number of health problems throughout 2022 and these explained why he had not pursued the matter until he was written to by the Council shortly before he made his licence application on 14 January 2023.

20. The FTT noted certain inconsistencies between the appellant’s oral evidence and the account given in his witness statement of the advice he had received.

21. The FTT next referred to the appellant’s reaction when he had been notified by the Council on 12 December 2022 that he appeared to be managing an unlicensed HMO and that this was a criminal offence. He had responded by email on 10 January 2023 without mentioning that he had previously been advised by officers to wait until his application had been reviewed. Nor did he mention that advice when he responded to an email from the second [RESPONDENT] in which she pointed out that he was letting the property unlawfully; the appellant blamed himself for not keeping up to date with the law and referred to health problems and family issues which “took away my attention”.

22. The FTT rejected the appellant’s defence, giving the following reasons: “22. We do not consider that [APPELLANT] has established that he had a reasonable excuse for not having a licence. Firstly we do not accept that he was told in July 2021 that he need do nothing further until contacted by the Council or that he was told that his unsubmitted application would be treated as a validly submitted application in the interim. We consider that had he been given such a firm assurance by the Council he would have mentioned it expressly when he was contacted by the Council in December 2022 regarding the need for a HMO licence, and in May 2023 when the Second [RESPONDENT] alerted him to the fact that she was aware that the property had been an unlicenced HMO. On both occasions he makes no mention of any such assurance. We also consider that his account of the conversation has not been consistent. For example had he been actively advised by LBTH not to submit the application or pay the fee, as he stated in his oral evidence, we would have expected him to include this in his witness statement.

23. We accept that there was a telephone conversation between [APPELLANT] and the licencing department in or about June/July 2021, and we accept that [APPELLANT] may have been told that his application would be referred for checking. Whatever his subjective understanding of the conversation may have been, in our view a reasonable landlord would not have let matters rest there for a further 18 months without following up. We do not consider that it was reasonable to enter into new tenancy agreements with the four occupants in 2022 without checking the licencing position with LBTH. We take into consideration the fact that [APPELLANT] was distracted by health issues in 2022 but note that this did not prevent him from finding new tenants for the premises and entering into 3 tenancy agreements with each of the applicants.” 23. The FTT therefore concluded that the appellant did not have a reasonable excuse for letting without a licence between 2 February 2022 and 13 January 2023. It then proceeded to make rent repayment orders in the sums previously referred to. In explaining the quantum of the repayments the FTT gave the appellant credit for having done all he needed to do to obtain a licence except submitting the application and paying the fee; that, the FTT said, amounted to “significant mitigation”. It is apparent from that observation that the FTT accepted that the appellant had given an honest account of the steps he had taken in June and July 2021, although it did not accept his evidence about what he had been told by Council officers at that time. The grounds of appeal 24. The appellant’s grounds of appeal were discursive but focussed on four topics.

25. First he relied on the FTT’s failure to consider the “key evidence” (as he described it) which he submitted to it on 16 May 2024. The FTT had wrongly believed that that material had not been part of his original case and that it was not available for its consideration.

26. Secondly, the appellant objected to the role played in the proceedings by the Council’s “rent repayment officer”, Mr Williams, who represented the respondents at the hearing and who, it was said, gave evidence without having filed a witness statement as required by the FTT’s directions.

27. Thirdly, the appellant complained about what he said was the Council’s disregard of the requirements of the General Data Protection Regulation (GDPR) concerning the preservation of data supplied to it in electronic form.

28. Finally the appellant took issue with the FTT’s failure to accept his account of what he had been told by Council officers.

29. When granting permission to appeal I highlighted the appellant’s first ground which invited consideration whether the FTT’s conclusion was rendered unfair by a procedural irregularity in the conduct of the proceedings. The FTT had been unaware of the documentary evidence submitted to it by email on 16 May 2024 and which the appellant considered key evidence. The documentary evidence corroborated the appellant’s account that he had spoken to a number of the Council’s officers in January 2023, and it was possible that it could support his evidence that officers had given him assurances that they would block any rent repayment order. If it was accepted that some form of assurance had been given, that might in turn lend support to the appellant’s evidence about what he was told in June or July 2021, which was the central factual issue in the case. It was arguable that the FTT might have taken a more favourable view of the appellant’s evidence if it had given consideration to the documents on which he wished to rely but which had been excluded. The appeal 30. None of the parties was represented at the hearing of the appeal and, for perfectly understandable reasons, they each focused their submissions on the primary facts. The appellant gave a detailed account of his dealings with the Council and explained why he had acted as he had. The respondents focused on the evidence given by the Council’s witness who had explained how the licensing portal operated.

31. On an appeal under section 53 of the Housing and Planning Act 2016 it is not the role of this Tribunal to determine the facts again. Such an appeal is not narrowly confined to points of law, but the facts will be taken to be as they were found by the FTT unless its findings were not consistent with the evidence it heard. The FTT gave careful attention to the appellant’s explanation of his conduct and did not find it credible for the reasons it gave. Those reasons were coherent and properly explained, and the FTT’s conclusion that he had no reasonable excuse could not be challenged by reference only to the evidence it heard.

32. Neither section 12 of the Tribunals, Courts and Enforcement Act 2007 (which provides a right of appeal where the FTT has made an error of law), nor section 53 of the Housing and Planning Act 2016 (which allows an appeal by a party aggrieved by a decision of the FTT in a rent repayment case) make any express reference to an appeal on the grounds of procedural irregularity. Nevertheless, serious procedural irregularity is a recognised ground of appeal. In court jurisdictions to which the Civil Procedure Rules apply, CPR 52.21(3) provides that an appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. The Civil Procedure Rules do not apply in tribunals but it would be both an error of law and contrary to the FTT’s overriding objective of dealing with cases fairly and justly, for it to decide a case unfairly because of a serious procedural or other irregularity in the proceedings.

33. I have no doubt that there was a procedural irregularity in the way this case was conducted before the FTT. The FTT panel were not to blame for that irregularity but it was real nonetheless. The directions given on 25 April were at best ambiguous regarding the status of material filed between the hearing in May and the “determination in June” and the appellant was entitled to assume that the material filed on 16 May would be available to the FTT and would be taken into account. There was then a miscommunication during the hearing which led the FTT to understand that the original email had been sent only to this Tribunal, which was not the case. The appellant told me that he had explained to the FTT that he had sent the email to it and offered to send it again during the hearing. The latter course was understandably not attractive to the FTT. I do not doubt the appellant’s account of what he told them, as it accords with what had happened and there is no reason for him to misremember which tribunal he sent the documents to and it is perfectly plausible that there was simply a miscommunication. Had the panel appreciated that the email was already on the FTT’s server (though not amongst the documents assembled by its staff for the hearing) I have no doubt they would have asked to be provided with it, but they did not.

34. The FTT has power under its own rules (rule 51, Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013) to set aside its own decisions on the grounds of procedural irregularity if it is satisfied that it is in the interests of justice to do so. One example of procedural irregularity given in rule 51(2)(b) is where a document relating the proceedings was not sent to, or was not received by, the FTT at an appropriate time. That is apt to describe what happened in this case.

35. But it is not every procedural irregularity which justifies setting aside a decision which disposes of proceedings, whether on appeal to the Tribunal, or by the FTT exercising its power under rule 51. The analogous CPR 52.21(3)(b) allows a decision of a lower court to be set aside only if it was “ unjust because of a serious procedural or other irregularity” (my emphasis). Similarly, to exercise its power under rule 51, the FTT must first be satisfied it is in the interests of justice for it to do so. The same restrictions apply when this Tribunal considers a ground of appeal based on a procedural irregularity. A decision of the FTT will only be set aside for procedural irregularity if the Tribunal is satisfied that the irregularity was serious, in the sense that it had serious consequences, and that it rendered the decision unjust. If a decision would clearly have been the same even if the irregularity had been avoided, there would be no reason to set it aside and put the parties and the tribunal to the expense and inconvenience of further proceedings.

36. It is therefore necessary to consider, in the light of all the material which was before the FTT, whether sight of the documents sent by the appellant on 16 May would, or might, have made a difference to its conclusion.

37. The documents described by the appellant as key evidence were phone records obtained from his network provider showing that he made eight telephone calls to the Council on 6 January 2023. Three of these calls were very short but one was of 12 minutes and another 28 minutes. Further calls were logged on 7, 10 and 11 January, the longest of which lasted 32 minutes. The appellant told me that during those calls he explained to the officers whom he spoke to that he had completed his original application in June or July 2021 but had deferred submitting it because he wanted it to be checked by the Council and had been assured by their colleagues that it would be backdated to the date of receipt once payment was made. He also told officers that he wished to lodge a complaint that he had been exposed to the risk of a rent repayment order. One of his longer calls was to a Principal Officer whose name was Abdul. The appellant explained that he was persuaded by Abdul not to make a complaint but instead to lodge a new application and that his understanding of what he was told was that Abdul would prevent or “block” the making of an order. In a second lengthy conversation with a different officer, the appellant says that he was told the assurance he had received would be acted on.

38. The account of the conversation given to me by the appellant during the appeal was more developed than the account he gave in his original witness statement to the FTT or in his email of 16 May. Neither of those documents referred to assurances being given by officers. I asked the appellant what he had taken the officer to mean by the suggested assurance about blocking the making of a rent repayment order, but he was unsure and said that he was unfamiliar with the rules relating to such orders. I can only assume that, however the appellant may have interpreted what he was told, the officer concerned was doing no more than explaining the effect of section 72(4) (b), 2004 Act i.e. that no rent repayment order could be made in respect of a time after an application for a licence had been submitted. But whatever the appellant was told by officers, or understood he had been told, is irrelevant to the issues in this appeal. Council officers have no power to intervene in, or block, an application for a rent repayment order.

39. The only relevance of anything which passed between the appellant and the Council after July 2021 is in any support it might provide to the appellant’s evidence about what he was told by officers over the telephone at that time about the effect of his “pending” application for a licence. Having now seen the whole of the material put before the FTT I am quite sure that the additional written material on which he tried to rely would have made no difference to the FTT’s conclusion on that issue. I say that for two reasons.

40. First, the FTT already had the appellant’s account of his conversations with the Council’s officers in January 2023. The phone records supported his evidence that these conversations had taken place but could not shed any light on what had been discussed. There is no suggestion in the FTT’s decision that it doubted that conversations had taken place in January 2023, and it is clear from paragraph 20 of its decision that it accepted that they had. The appellant’s own email to the Council on 10 January provided near contemporaneous confirmation and there was every reason to accept that when the Council notified him that he may have committed a criminal offence he would have been very keen to speak to its staff.

41. Secondly, the phone records are entirely unrelated to the material which caused the FTT to reject the appellants account of what he was told in June or July 2021 and there is therefore no basis on which the records might have undermined the FTT’s reasoning or caused it to see the case in a different light. In paragraph 22 of its decision the FTT gave two reasons for disbelieving the appellant’s evidence that he was told he need do nothing further until he was contacted by the Council and that his application would be treated as if it had been validly submitted even though it remained pending and no fee had been paid. The first reason was that he had said nothing about any s