Upper Tribunal clarifies time limit for rent repayment order applications where landlord had reasonable excuse

In Kemp & Ors v DIP Systems (UK) Ltd [2025] UKUT 233 (LC), Deputy Chamber President Martin Rodger KC upheld the First-tier Tribunal’s (FTT) decision that the tenants’ application was out of time, as no offence was being “committed” during the relevant period due to the landlord’s reasonable excuse.

Background
The case concerned a flat in Hackney let by DIP Systems (UK) Ltd to four tenants between March 2021 and May 2023. The property was a house in multiple occupation (HMO) subject to additional licensing under Hackney’s scheme.

Although the landlord did not have a licence when the tenancy began, it attempted to apply for one on 16 November 2022. Due to a fault in the council’s online payment system, the application could not be completed until 15 December 2022. Hackney later confirmed that the application would have been accepted on 16 November but for the technical issue.

The tenants applied for a rent repayment order on 29 November 2023, seeking to recover £27,028 in rent paid between 16 December 2021 and 15 December 2022.

FTT and Upper Tribunal decisions
The FTT found that the landlord had a reasonable excuse for managing the unlicensed HMO between 16 November and 15 December 2022. As a result, the last date on which the offence was “committed” was 15 November 2022 - more than 12 months before the tenants’ application. The FTT dismissed the claim as out of time.

On appeal, the tenants - represented by Justice for Tenants - argued that the existence of a reasonable excuse did not mean the offence had not been “committed” for the purposes of section 41(2)(b) of the Housing and Planning Act 2016. They contended that the statutory defence merely excused liability, rather than negating the commission of the offence.

However, the Upper Tribunal rejected this argument. Rodger KC held that the term “committed” in section 41(2)(b) must be interpreted consistently with its use elsewhere in the Act, including section 43(1), where it clearly refers to an offence for which no defence applies.

He concluded: “There is no obvious reason why Parliament should have considered that the clock should not begin to run down against the making of a claim from the earliest point at which a defence became available. On the contrary, it seems logical and consistent that time should begin to run against an application from the moment a landlord’s behaviour ceases to be blameworthy.”

The appeal was dismissed.