Vinod Nair v Adiya Cherukovilakath & Ors

Introduction

1. This is an appeal from the First-tier Tribunal’s decision to make rent repayment orders against the appellant Mr Vinod Nair in favour of the respondents who are all his former tenants. The grounds of appeal challenge the FTT’s decision to proceed with the hearing of the respondents’ applications in the appellant’s absence, which the appellant says led to insufficient consideration being given to his financial circumstances and to adverse findings about his conduct.

2. The appeal has been decided under the Tribunal’s written representations procedure. The appellant was not been legally represented. Ms Todt was represented by Dr Roy Mohan; Mr Cherukovilakath and Ms Goodwin chose not to participate in the appeal. I refer to all three former tenants as “the tenants”, but only Ms Todt is a respondent to the appeal. The legal background

3. The Housing Act 2004 requires certain rented houses to be licensed, including some (but not all) houses in multiple occupation (“HMOs”). Section 72(1) of that Act provides that it is an offence to be in control of or to manage a property that requires an HMO licence and is not so licensed. 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 offence under section 72 of the 2004 Act .

4. The FTT may order a landlord to repay up to twelve months’ rent. In doing so, it is directed by section 44 of the 2016 Act to take into account a number of factors: “(4) In determining the amount the tribunal must, in particular, take into account— (a) the conduct of the landlord and the tenant, (b) the financial circumstances of the landlord, and (c) whether the landlord has at any time been convicted of an offence to which this Chapter applies.”

5. The Tribunal’s decision in Acheampong v Roman [2022] UKUT 239 (LC) provides guidance as to the points the FTT should have in mind when considering the quantum of a rent repayment order. The factual background and the FTT’s decision

6. The appellant is the registered proprietor of 96 Perry Vale, London SE23. The tenants all rented rooms there at different dates during 2023 and had all left by mid-September 2024.

7. In September 2024 MS Goodwin and Mr Cherukovilakath made an application for rent repayment orders against the appellant, on the ground that the property had been an unlicensed HMO while they were in occupation. In October 2024 Ms Todt applied for a rent repayment order. In April 2025 the FTT ordered that the two applications be heard together, and a hearing was listed on 5 June 2025.

8. The hearing took place in the appellant’s absence, for reasons that I shall explain. The FTT decided that the appellant had committed the offence under section 72(1) of the Housing Act 2004 between 19 October 2023 and 13 April 2024. That decision is not challenged in this appeal and so I need not say any more about it.

9. The FTT decided to make a rent repayment order in favour of the tenants. It heard evidence from them about the appellant’s conduct. It had before it written representations from the appellant, including a certificate from his accountant which stated that his earnings in 2024 had been £5,000, and his own written explanation of his financial circumstances. He said that in the tax year 2023-2024 he had earned £5,000, that his “current-year income” was £2,300, and that he had chosen not to claim public benefits but to rely on savings and assistance from his family. He said that a rent repayment order would cause severe hardship. He made extensive allegations of misconduct on the part of the tenants.

10. The FTT in deciding how much rent to order the appellant to repay went through the reasoning process suggested in Acheampong. It commented that the offence of operating an HMO without a licence was one of the less serious in respect of which an order could be made, but that this was a moderately serious example of the offence. It considered the conduct of the parties and accepted the tenants’ evidence that the appellant had been bullying and intimidatory, had positioned a camera to monitor the tenants’ behaviour, and had sent a very unpleasant anonymous email to one of them. It rejected allegations of misconduct on the part of the tenants.

11. It went on to say: “Whilst the Respondent had provided some evidence about his financial circumstances, these submissions were not complete. The evidence only related to a salary and did not explain the rental income or any self employed income that the Respondent may have received in the relevant period.”

12. The FTT made rent repayment orders of 65% of the rent for the relevant period in favour of each tenant, the total being just over £8,500.

13. The appellant asked for permission to appeal. He said he had made repeated applications to the FTT for the hearing to be conducted by video link, explaining that he could not attend in person because of his 24-hour caring responsibilities. He said that he had provided evidence of his responsibilities at an early stage. Mr Cherukovilakath and Ms Goodwin had not objected but Ms Todt had opposed his application and the FTT refused it on a number of occasions despite him having made his position clear early on. The Tribunal granted permission to appeal on the ground “that it is arguable that it was not possible for the applications for rent repayment orders to be dealt with fairly in Mr Nair’s absence, in circumstances where he had explained that he was unable to attend due to caring responsibilities, and where a hearing could have been held remotely.”

14. The Tribunal added: “I acknowledge that in granting permission to appeal I am in effect giving permission to appeal the directions given prior to the hearing, refusing the request for a video hearing. Those directions were not appealed. However, the question of Mr Nair’s attendance was a matter that the FTT had to consider at the hearing; the panel was aware of his absence and of the reasons he had given for it, and was required by the FTT’s rules to proceed only if they considered that it was in the interests of justice to do so. The panel does not appear to have given consideration to whether it was in the interests of justice to proceed, and it is arguable that it was not, in circumstances where the FTT was going to take a decision about the commission of a criminal offence and where evidence of fact was disputed.” The appeal

15. Having given permission to appeal the Tribunal gave directions for the intended respondents to file statements of case if they wished to take part and, as I said above, only Ms Todt did. On receipt of her statement of case the appellant filed a “rebuttal”, and has filed a number of other written submissions. He has made allegations of impropriety on the part of Ms Todt and her representative, none of which has any real relevance to the grounds of appeal. Ms Todt on the other hand has made clear her view that she had opposed the application for a remote hearing; she had made time to attend and she felt that the appellant’s refusal to come was not genuine and was part of a pattern of poor behaviour. She did not accept that the appellant would suffer any financial hardship in light of her knowledge of his lifestyle.

16. The written submissions made by both parties are characterised by embittered complaints against each other, which do not assist the Tribunal or the parties.

17. In accordance with the Tribunal’s directions the appellant has produced a bundle of the material that was before the FTT. In it I can trace the applications he made for a remote hearing. What seems to have happened is this: a. The FTT sent out a listing questionnaire early in the proceedings; the appellant returned it on 31 January 2025 and said this on the form: “I have full time family care responsibilities that take me away from London makes it unable to have visibility of my availability for in person attendance for the dates mentioned. I shall make best efforts to attend the date posted.” b. On 5 February 2025 the FTT sent the appellant notice of a hearing at Alfred Place in London on 5 June 2025. c. The FTT sent the appellant a letter on 11 March 2025 stating that the hearing would be a video hearing and enclosing guidance about hearings during the pandemic.

18. It is impossible to guess why the FTT wrote to the appellant on 11 March 2025 with what I think must have been a standard letter used during the Covid pandemic. It must have been sent in error. But it was not until 19 May 2025 that the appellant emailed the FTT and asked for a remote hearing “due to personal and financial circumstances.” He chased for a response on 23 and 28 May. He received a reply from a case officer, on the instructions of a judge, on 28 May stating that since he had not informed the other parties or used the correct form the application would not be considered, but observing that the applicant had had ample time to make arrangements to attend.

19. The appellant replied by letter and said that his “ongoing family care responsibilities” were ongoing obligations which he managed “with limited flexibility”. He renewed his application on Form 1 dated 30 May 2025 and said: “I request permission to attend the hearing scheduled on 5 June 2025 remotely due to ongoing non-discretionary family care responsibilities. These responsibilities cannot be delegated and have been disclosed previously to the Tribunal. Further details are withheld respectfully in the interest of family privacy and dignity”

20. That application was copied to the tenants of whom, as I said above, only Ms Todt objected. At the same time, multiple allegations of procedural misconduct were being made by the appellant and Ms Todt against each other. The application for a remote hearing was rejected by a procedural judge on 2 June 2025; the appellant then sent another email saying that he had presented a full explanation of his circumstances including his care responsibilities, and the application was again rejected, by another, judge on 4 June 2025.

21. I have not listed every email from the appellant. But I have set out above everything that he told the FTT about his caring responsibilities. What is conspicuous from all his communications is that he did not at any point say what his responsibilities were or why they prevented him from attending. In no sense did he “explain”. In light of the content of the applications he made, it is very difficult to see how the FTT could have acceded to his request for a remote hearing.

22. It is important to bear in mind that although during the Covid pandemic remote hearings became commonplace, remote hearings are now no longer standard. They will be ordered when there is a good reason. But the appellant never presented one. He continually said that he had caring responsibilities but expressly refused to set out what they were (see paragraph 19 above). It was therefore not possible for the FTT, or indeed Ms Todt, to understand why he wanted a remote hearing. Faced with Ms Todt’s strong preference for an in-person hearing there was no basis on which the FTT could have acceded to his request.

23. I appreciate that family circumstances may be difficult to disclose. It would have been perfectly acceptable to explain the situation to the FTT on a confidential basis. The appellant had ample time to do so. His response to the listing questionnaire in January did not even suggest that he would be unable to attend, only that he would do his best to make arrangements.

24. As I said above, there is the curious incident of the FTT’s letter of 11 March 2025, but the appellant had been told there would be a hearing in person and it his email to the FTT on 19 May and his subsequent forms and emails do not suggest that the hearing had previously been listed as a remote hearing. He knew he needed to apply for a direction that it would not be in person. So I do not think he was misled by that letter.

25. The FTT at the hearing on 5 June 2025 did not say a great deal about the appellant’s absence. It said: “12. The respondent did not appear at the hearing. He made applications on two separate occasions for the hearing to be heard remotely which were refused by procedural judges on 29th May 2025 and on 2nd June 2025.

13. The applications were rejected by procedural judges each on the basis that insufficient evidence was provided of his inability to attend the hearing in person.

14. The respondent made written representations which were considered by the tribunal and are referred to below.”

26. Rule 34 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 says this: “If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal— (a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and (b) considers that it is in the interests of justice to proceed with the hearing.”

27. The FTT knew that the appellant had been notified of the hearing and was well aware of the date. It did not expressly consider rule 34(b) and ask itself whether it was in the interests of justice to proceed. Had it done so it would certainly have found that it was; the appellant had known about the hearing for months, and had given no explanation for his assertion that caring responsibilities made it impossible for him to attend. He had provided written representations and his case was known to the parties.

28. Accordingly I do not think there is any basis on which the FTT’s decision to go ahead in the appellant’s absence can be interfered with. It was a case management decision, in the FTT’s discretion, and was made for good reason.

29. The appellant argues that had he been present he would have argued for the award to be much reduced, both on the basis of conduct and on the basis of his finances. He suggests that a nominal order of £1 would have been appropriate. That is wholly unrealistic. The order made was not a high one. Even if the FTT had been persuaded to a different view of the parties’ various cross-allegations of conduct it is difficult to see that that would have shifted the dial by much. And having now seen what the appellant had said in his written submissions to the FTT about his financial circumstances I am not persuaded that it would have made any difference at all, since his evidence made it clear that he had savings. Conclusion

30. The appeal fails. The FTT had good reason to proceed in the appellant’s absence on 5 June 2025, and its order stands. The stay of enforcement imposed by this Tribunal pending the appeal is lifted. Judge Elizabeth Cooke 10 March 2026 Paragraph 2 corrected on 16 March 2026 as to the respondent’s representation. Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.