The Upper Tribunal has held that a rent repayment application made on 17 September 2023 was out of time where a continuing HMO licensing offence ended on 17 September 2022, so the First-tier Tribunal had no jurisdiction.
Key facts
- Who: Tenants considering a rent repayment order over an unlicensed house in multiple occupation (HMO), and their landlords.
- From: 9 January 2026 (judgment date)
- Source: Ellen Stokki & Ors v Ahmed Abu Choudhury [2026] UKUT 11 (LC)
Background
Three tenants rented rooms in a flat in Southwark from September 2021, sharing with a fourth tenant, Ms Darga. The local housing authority had made an additional licensing designation in March 2021, so HMOs with three or more occupants needed a licence. The flat was unlicensed.
The First-tier Tribunal (FTT) found that Ms Darga moved out on 18 September 2022. After that only two occupants remained and no licence was required. The tenants applied to the FTT for a rent repayment order on 17 September 2023.
The question
A tenant may apply for a rent repayment order only if the offence was committed in the period of 12 months ending with the day on which the application is made (section 41(2)(b) of the Housing and Planning Act 2016). The FTT held that this period began at 00:00 on 18 September 2022, and that the offence ceased to be committed on 17 September 2022. It decided it had no jurisdiction.
The tenants appealed. They accepted when the 12-month period began, so the only issue was whether the offence was being committed on 18 September 2022.
The decision
In [2026] UKUT 11 (LC), decided on written representations on 9 January 2026, Upper Tribunal Judge Elizabeth Cooke dismissed the appeal. The FTT had no jurisdiction to make a rent repayment order.
The reasoning
The tenants argued that the earlier decision in Moh v Rimal Properties Limited [2024] UKUT 324 (LC) concerned only when a defence takes effect, not the ending of an element of an offence. They said three people were in the flat at the start of 18 September, so the offence was being committed that day.
The judge accepted that the circumstances differed slightly but held that the same reasoning applied. The offence is a continuing offence. Fractions of a day are disregarded, and it was not known what time Ms Darga left. So it was necessary to decide which part of the day to disregard: the time after she left, in favour of the tenants, or the time she was present, in favour of the landlord.
The judge said this is not a limitation case. The issue is whether a serious penalty should be imposed on a landlord, and criminal liability is far more important than facilitating applications for rent repayment orders. She therefore preferred to say the landlord was not committing the offence in the morning because he ceased to do so later that day.
The tenants also compared the position with the offence of unlawful eviction. The judge held that comparison irrelevant: the question of when an offence ceased to be committed arises only for continuing offences, and there is no incongruity with once-and-for-all offences.
The landlord did not file a respondent's notice or grounds of opposition. Any party may seek permission to appeal to the Court of Appeal on a point of law.
What this means for tenants and landlords
For tenants, the ruling shows that the timing of an application can decide whether the tribunal has jurisdiction at all. Anyone considering a claim over a continuing licensing offence may want to check the dates involved, including when the offence ended, and get advice before a deadline passes.
For landlords, the ruling shows how the Upper Tribunal approached the 12-month period where an element of a continuing licensing offence ceased, in this case when the number of occupants fell below the licensing threshold. The decision was reached on the facts found by the FTT in this case.
Sources
- Ellen Stokki & Ors v Ahmed Abu Choudhury [2026] UKUT 11 (LC), Upper Tribunal (Lands Chamber), 9 January 2026: https://caselaw.nationalarchives.gov.uk/ukut/lc/2026/11