Amount of Rent Repayment Orders: Newell v. Abbott [2024] UKUT 181 (LC) (Martin Rodger KC)

This is a helpful and lengthy Upper Tribunal decision worth reading in full.

It reiterates that in some limited circumstances ignorance may amount to a ‘reasonable excuse’ in respect of not having a license (not in this case, however), and it also goes through numerous Upper Tribunal decisions where certain factors lead to higher or lower RROs (see para. 61 for a useful summary).

Ultimately, the appeal was allowed and redetermined by the Upper Tribunal with an 80% RRO replaced by a 60% one.

?Three other interesting points are worth highlighting.

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(1)??? Firstly, relative comparison regarding severity of offence: it reiterates?that an FTT when considering the amount of an RRO must compare the instant offence not only against other types of the same offence but also against the other offences that can lead to RROs (see para. 39)

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(2)??? Secondly, irrelevant comment:

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a.????? The Upper Tribunal agreed with the appellant’s submission that “...the FTT's decision [read as a whole] demonstrated that it would have liked to make an award at a higher level but was constrained from doing so by the decisions of this [Upper] Tribunal. That, I agree, is a fair reading of the decision. [The Appellant] suggested that the FTT had allowed its preference for a higher award to infect its judgment concerning the seriousness of his offence and led it to impose a higher penalty than was justified.” (see para. 41).

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b.????? As to this, the Upper Tribunal went on to say:

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?“A tribunal required to weigh up competing considerations before arriving at a relatively complex judgment is well advised to avoid prefacing their decision with an explanation of their dissatisfaction with the legal principles which bind them. A tribunal's view of what the law ought to be, where it differs from the view of the law which they are required to apply, is irrelevant. By repeatedly explaining their disagreement with the guidance given by this Tribunal the FTT panel risks undermining the confidence of tribunal users in the standard of justice they have received. The panel risks creating the impression in the mind of the unsuccessful party, as it has done in [the Appellant’s] mind, that different criteria have been applied to their case than to the cases of others whose disputes have been determined by different panels.”

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c.????? For these two reasons (erroneous approach to the seriousness of the offence and irrelevant criticisms of decisions that bound it) the FTT’s order was set aside, which leads to a third point about the case.

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(3)??? Thirdly, remit back to the FTT or should the Upper Tribunal redetermine the decision?

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a.????? Allegations and counter-allegations relating to conduct had been made in respect of which findings of fact had not been made (see para. 45).

?b.????? Further, as the grounds raised were such that a different first-tier panel would have to hear it, which would lead to more delay and expense, the Upper Tribunal chose to redetermine the matter on the basis of the findings made by the FTT or which are not disputed, and disregarding allegations in relation to which it made no findings.

?c.????? It was said that the FTT’s omission to make proper findings on disputed issues of fact indicated either that the FTT was not satisfied that the allegations had been proven or that it was satisfied that they were either trivial or irrelevant, but the Upper Tribunal felt that either way they could be safely ignored (see para. 46).

?d.????? The 60% award, replacing the FTT’s 80%, was reached without giving weight to the allegations of poor conduct on either side (see para. 62).