Landlord and tenant – First-tier Tribunal – Procedure – Respondents tenants making online application to First-tier Tribunal for rent repayment order against appellant – Fee paid two weeks after application made – FTT making order – Appellant appealing – Whether application for rent repayment order lodged without payment of tribunal fee made within requisite time limit – Appeal dismissed
For two years from September 2021, the respondents were tenants of a flat belonging to the appellant which should have been licensed under the local housing authority’s selective licensing scheme but was not. On 5 June 2023, they filed an online application for a rent repayment order. The respondents asked to pay the application fee by online bank transfer and the FTT provided the necessary bank details. On 5 July, it confirmed that the payment had been successfully received.
Section 41(2) of the Housing and Planning Act 2016 provided that a rent repayment order might only be made if the housing offence in respect of which the order was sought was “committed within 12 months ending with the date the application was made”.
At the application hearing, the appellant acknowledged that he had committed the offence of managing an unlicensed house contrary to section 95 of the Housing Act 2004 between 1 October 2021 and 6 June 2022; on 7 June 2022 he applied for a licence and from that date the offence was no longer being committed.
The application was treated by the FTT as received on 5 June 2023, within 12 months of 6 June 2022, being the last date on which the offence had been committed. Therefore, the FTT decided that the application had been made within the period prescribed by section 41(2) of the 2016 Act and ordered the appellant to repay rent of £3,150.82 to each of the respondents The appellant appealed.
Held: The appeal was dismissed.
(1) The FTT’s overriding objective of dealing with cases fairly and justly was stated in rule 3(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 and then illustrated in rule 3(2) with a non-exhaustive list of what it meant to deal with a case fairly and justly. The list included avoiding unnecessary formality and seeking flexibility in the proceedings (rule 3(2)(b)). The FTT was required to give effect to its overriding objective when it interpreted its own rules (rule 3(3)(b)).
(2) Rule 26 stated that an applicant had to start proceedings before the FTT by sending or delivering a notice of application. The commencement of proceedings did not depend on the tribunal itself processing or issuing the claim. The basic rule that what was required was a notice of application was followed by additional requirements, mostly in rule 26(2) which dealt with the content of an application and the information which it should contain. Rules 26(4) and (5) then identified things which had to accompany the application. If the application was an appeal, it had to be accompanied by a copy of the decision appealed against (rule 26(4)); any fee payable had to be provided with the notice of application (rule 26(5)).
Each of those requirements had to be considered in the light of rule 8(1) of the 2013 Rules, which stated that “an irregularity resulting from a failure to comply with any provision of these Rules, a practice direction or a direction does not of itself render void the proceedings or any step taken in the proceedings”. Rule 8(2) then explained that if a party had failed to comply with such a requirement the FTT might take such action as it considered just, which might include waiving the requirement, or requiring the failure to be remedied.
(3) In the present case, the parties agreed that the rent repayment application was lodged on the very last day permitted by section 41(2) of the 2016 Act, but the application fee was not paid until two weeks later. The only default was in the failure to pay the fee within time. As a matter of interpretation of rule 26(1), proceedings were started by sending or delivering a notice of application which was a document, not a payment, and the fee itself was not part of that document. There was a separate requirement, imposed by rule 26(5), that the fee had to be provided with the notice of application; it was not part of the application. There was therefore no reason to elide what the maker of the 2013 Rules had kept separate or interpret the rule as if it said that an applicant had to start proceedings before the FTT by sending or delivering a notice of application and providing any fee payable.
On that interpretation of rule 26, proceedings were started by sending or delivering a notice of application, whether or not the requisite fee was paid at the same time. That was in accordance with the FTT’s overriding objective. It was also consistent with rule 8 which treated non-compliance with the FTT’s Rules and practice directions as an “irregularity” rather than a fatal flaw going to the validity of the step taken. Rule 8(1) was expressed in very wide terms to enable a notice of application which did not comply with the requirements of rule 26 nevertheless to be an effective means of commencing proceedings. The power given to the FTT to waive compliance with a particular requirement, or to require that it be complied with later than the rule itself might stipulate, was also consistent with an approach which did not treat compliance as essential to effectiveness.
(4) That view of the effect of rule 26 was in accordance with rule 11 which explained the consequences of a failure to pay a fee. Under rule 11(1), it was the FTT which “must not proceed further with the case until the fee is paid”. If, as rule 26(1) indicated, proceedings were commenced by the unilateral act of the applicant in sending or delivering the notice of application, the bar in rule 11(1) on the FTT proceeding further until payment was received did not cast doubt on the validity of the proceedings which had already commenced. The direction in rule 11(2) that where a fee remained unpaid for 14 days after becoming payable, “the case, if not already started, must not be started” referred to the taking of steps by the FTT or its staff.
Under rule 26, proceedings were started by sending or delivering a notice of application, whether or not the requisite fee was paid at the same time. The date on which a notice of application was lodged with the FTT was the relevant date for the purpose of limitation.
The appeal was determined on written representations.
Eileen O’Grady, barrister
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