Afshan Mughai & Anor v Busola Samuel-Ougundana

This is an appeal from a rent repayment order made by the First-tier Tribunal, brought by the landlords who were not made aware of the proceedings in the FTT until some time after the order was made. I explain briefly in the following paragraphs how that came about and why the decision must therefore be set aside. The appeal has been determined under the Tribunal’s written representations procedure; neither party was legally represented.

The Housing Act 2004 requires certain rented houses to be licensed, including not only houses in multiple occupation but also properties in areas designated by the local housing authority as areas of selective licensing. The 2004 Act creates offences of being in control of or managing such a house without a licence. The Housing and Planning Act 2016 gives the FTT jurisdiction to make a rent repayment order when it is satisfied to the criminal standard of proof that the landlord has committed one of a number of listed offences, including the licensing offences.

The appellants are the proprietors of 21 Bruce Street, Leicester; the respondent Mrs Samuel-Ougundana entered into a tenancy agreement with them and moved into the property in January 2023, but dealt with the letting agent, “Set to Let Management”, and not with the appellants. Iin July 2023 she applied to the FTT for a rent repayment order on the basis that the appellants were managing a property that should have been licensed under the selective licensing provisions of the 2004 Act. The respondent and her family left the property in April 2024. The FTT conducted a video hearing on 7 May 2024; the appellants were represented by Mr Neil Barakhda of Set to Let, but it seems that he made written submissions and did not attend. The FTT issued its decision making a rent repayment order against the appellants on 31 May 2024 and sent it to Set to Let but not to the appellants.

The respondent’s application to the FTT named Set to Let as the appellants’ agents. On 22 January 2024 the FTT, which is required by rule 29(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 to serve proceedings on respondents (the appellants were of course the respondents in the FTT) sent the proceedings and its directions not to the appellants but to Set to Let; the email said “The Tribunal has received an application under the above legislation and you are named in the application as the respondent.”

Set to Let did not pass on a copy of the proceedings to the appellants. In an email to them dated 22 January 2024 it told them that proceedings had been brought, appending the FTT’s letter but without forwarding the FTT’s attachment. All that the appellants therefore saw was a letter to the FTT to its agents stating, apparently, that proceedings had been brought against the agents. At no point did they see the application to the FTT, nor the directions made by the FTT on receipt of that application.

In correspondence with the Tribunal the appellants have confirmed that they did not attend the hearing and said: “We were not given notice of the hearing date, joining instructions, or directions — all communication from the Tribunal appears to have been handled through the agent, who did not involve us.”

In January 2025 the respondent emailed the appellants with a copy of the order, demanding payment. According to the appellants that was the first time they were made aware of the proceedings or of the fact that their agent had not obtained a licence for the property; they applied for a licence in January 2025 and now have one.

The appellants applied to the FTT for permission to appeal on a number of grounds including the fact that they had been unaware that proceedings had been brought against them, rather than their agent, until January 2025 and had not known about the hearing. The FTT refused permission saying that the lack of communication between the appellants and their agent was a matter they should take up personally with the agent.

When an application for permission to appeal was made to the Tribunal, it wrote to the FTT to ask whether the FTT had had authority from the appellants to serve proceedings on their agent. In response the FTT confirmed that it had not, and said:

“I am unable to locate any direct correspondence to or from the Respondents within our electronic file.

I am satisfied that the Tribunal did not receive written notice of representation from the Respondent as required by FTT Rule 14(2).

I am also satisfied that the Tribunal did not provide a copy of the application and accompanying documents to the Respondent as required by FTT Rule 29(1).”

It is therefore clear that the proceedings were not sent to the appellants but were sent to the letting agent who whom they had not authorised to receive notice of proceedings against them. The FTT is required to send the proceedings and its directions to the party concerned, and not to their agent unless they have authorised the FTT to do so. The appeal succeeds as a result of this procedural irregularity and the order made by the FTT is set aside.

I should like to stress that the respondent has not been in any way at fault; she was not aware that the proceedings had not been sent to the appellants. If she wishes to pursue her application for a rent repayment order she may apply to the FTT for directions.