Government moves amendments to overturn Supreme Court win

In Rakusen v Jepsen [2023] UKSC 9, the Supreme Court confirmed the correctness of the interpretation of the Housing and Planning Act 2016 put forward by Tom Morris on behalf of the successful appellant in the Court of Appeal: that a rent repayment order (RRO) cannot be made against a superior landlord.

Commenting on the ‘policy’ objections raised by Safer Renting, one of the intervenors, Lords Burrows and Briggs accepted that “the interpretation we take renders RROs less effective than they perhaps could be if they were to be made available against superior landlords”. They added this.

“But in our view that development would undermine the clear definition of an RRO, as set out in section 40(2) of the 2016 Act, and would therefore require new legislation. In other words, if this is thought to be a problem any reform would be a matter for Parliament and cannot be achieved through a distorted interpretation of the relevant provisions in the 2016 Act”.

Parliament may be about to take up their Lordships’ invitation. On 15^th November 2023, the Parliamentary Under-secretary of State at the Department for Levelling Up, Housing and Communities introduced new amendments to the Renters Reform Bill to reverse the Supreme Court’s decision. Section 40 of the Housing and Planning Act 2016 is proposed to be replaced in its entirety with a new section specifying that an RRO can be made against a superior landlord who commits a relevant offence. It will also become possible to make an RRO against more than one landlord, with a new section 46A to be inserted dealing with apportionment of liability between landlords.

The proposed amendments can be found here on pages 52 and 53.

In Rakusen v Jepsen, Lords Briggs and Burrows observed that “although not always true in law, in this case the simple answer to the question posed is also the correct answer”. The proposed amendments will make the RRO machinery considerably more complex and, if enacted, will likely give rise to many difficulties of interpretation to be settled by the tribunals and courts.

In Rakusen v Jepsen, Tom Morris acted for the successful respondent, instructed by Liam Hale at Winckworth Sherwood.

Justin Bates and Charles Bishop acted for Safer Renting, instructed by Giles Peaker at Anthony Gold.