R v Chief Rent Officer for Royal Borough of Kensington and Chelsea, ex parte Moberley

Rent Act 1977, section 67 — Question as to validity of an application by a tenant for the registration of an existing registered rent — Appeal by tenant from the decision of McCullough J dismissing her application for judicial review — Tenant had sought an order of certiorari to quash a registration by the rent officer increasing her rent — The proceedings originated in a mistaken belief by the tenant in 1983 that her landlords would be able to increase her rent of £14 per week, registered in 1980, without any fresh registration — In order, as she thought, to forestall such an increase she applied to the rent officer to re-register her existing rent of £14 per week, and the landlords were, as the legislation required, given notice of her application — The rent officer explained to the tenant that her rent could not have been increased without an application to him by the landlords — He informed the tenant that it was open to her to request a withdrawal of her application, which, if the landlords consented to it, would put an end to the proceedings — The tenant claimed later to have withdrawn the application, but the rent officer stated that no request to withdraw had been received — He proceeded to make his determination and registered a rent of £16 per week — In her appeal the tenant submitted that section 67(1) and (3) allowed only two kinds of application, an application for registration of an initial rent and an application to register a rent different from the registered rent; there was no warrant for the view that an application could be made to re-register at the same figure an existing registered rent — Paras 4 and 5 of Schedule 11 to the Act confirmed this construction — Held that this submission was correct — The opposite view would lead to strange results; as section 67(3) restricted only applications for a different rent, it would be possible to make several applications to register the same rent, thus effectively prolonging the period during which a landlord could not obtain an increase of rent — The consequence was that the application to the rent officer to re-register the existing registered rent was invalid and the determination of the new rent which he made as a result of that invalid application must be quashed — The court in the exercise of their discretion would grant the order of certiorari sought — In view of this decision on the point of construction, the court did not consider certain other grounds advanced by the appellant, including a contention that an application to the rent officer could be withdrawn without the other party’s consent at any time before registration This was an appeal by Miss Sheila Moberley, a tenant of Room 13 at 38 Penywern Road, London SW5, from a decision of McCullough J dismissing an application for judicial review for the purpose of quashing a registration by the rent officer of a rent of £16 per week for the appellant’s accommodation. The appellant appeared in person; Duncan Ouseley (instructed by the Treasury Solicitor) represented the respondent, the chief rent officer for the Royal Borough of Kensington and Chelsea. Giving judgment, NOURSE LJ said: This is an appeal from a decision of McCullough J given on November 29 1984 in proceedings for judicial review. The applicant, Miss Sheila Moberley, is the tenant of Room 13, 38 Penywern Road, London SW5. That property is situated in the Royal Borough of Kensington and Chelsea. By her application Miss Moberley seeks the quashing of a determination of the rent of those premises by a rent officer for the Royal Borough on December 7 1983. The chief rent officer for the Royal Borough is accordingly the respondent to these proceedings. By his determination the rent officer assessed Miss Moberley’s rent at £16 per week inclusive of services and use of furniture. Her rent had last been determined in 1980, the relevant application having been made on July 25 of that year. It was then fixed at £14 per week inclusive of services and the use of furniture. That earlier rent was registered on October 15 1980. Under the relevant statutory provisions it took effect as from the date of the application on July 25. The material facts, which I take almost verbatim from the judgment of the learned judge, are these. In 1983 Miss Moberley was fearful that after the end of the three-year period her landlords would be free to increase her rent without further reference to the rent officer. That in fact was a mistake. There could of course have been no increase without a further determination. However, acting under her misapprehension, Miss Moberley, on October 13 1983, applied for a fresh registration of the existing rent of £14 per week. The landlords were duly given notice of that application. They replied, saying that they thought the rent should be increased. On November 22 the rent officer, Mr Souster, went to 38 Penywern Road, where he met Miss Moberley. He asked her why she had asked for the registration when her rent could not be increased unless the landlords first applied to the rent officer themselves. She explained her belief and, when Mr Souster had explained the true position to her, she said that had she known that she would not have made her application. Mr Souster then, in my view very properly, informed her that it was open to her to make a request in writing seeking to withdraw her application. He said that, provided the landlords consented to the withdrawal, he would take no further action. So far as Mr Souster and anyone else in his office were concerned, no written request asking for the application to be withdrawn was ever received. Accordingly, on December 7 1983, Mr Souster made his determination and registered the new rent of £16 per week. On December 22 Miss Moberley wrote to the rent officer saying,169 among other things, that she had withdrawn her application to register the rent and that no notice had been taken of that. On January 16 1984 she wrote again, sending a copy of a letter which she said was the letter of withdrawal and which she said she had delivered personally to the rent offices in Cromwell Road on November 22 1983. That letter said this: Dear Sir, re Re-registration of Rent. This is to inform you that I wish to withdraw my application to have the rent registered again for the above premises. On February 8 1984 the chief rent officer wrote to Miss Moberley and said this to her: There is no procedure in law for any retrospective withdrawal after the date of registration, so there the matter must rest. Miss Moberley, not being satisfied with the position, on February 11 1984 applied for leave to move for judicial review on a number of grounds. On June 28 of that year Glidewell J gave her leave to move on one ground, and when the matter came effectively before McCullough J on November 28 1984 he gave her leave to add three further grounds. The four grounds were summarised by the learned judge as follows. First, that the rent officer had ignored the letter of withdrawal which Miss Moberley said she had delivered on November 22 1983. Before the judge there was an issue of fact as to whether that letter had been delivered or not. Second, that the registration on December 7 1983 was of no effect because it was founded on an application from Miss Moberley which in itself was of no effect, since the relevant legislation, namely the Rent Act 1977, does not allow a tenant to apply for registration of a rent which is the same as that currently registered. That ground can conveniently be described as raising the construction point. The third ground is that Miss Moberley was wrongly told in the letter of February 8 1984 that there was no process of law whereby a registered rent could be removed. There she contends that she ought to have been informed that she could apply by way of judicial review for an order of certiorari. The fourth ground is that Mr Souster wrongly told Miss Moberley on November 22 1983 that she could withdraw her application only if the landlord consented to that withdrawal. She says that an application can be withdrawn unilaterally at any time before the rent is registered. The convenient course is for me to start with the construction point. The Rent Act 1977 was amended in 1980, but the amendments are not material to this case. I therefore refer to the Act in its unamended form. Section 67(1) is in these terms: An application for the registration of a rent for a dwelling-house may be made to the rent officer by the landlord or the tenant, or jointly by the landlord and the tenant, under a regulated tenancy of the dwelling-house. I need not refer to subsection (2) at this stage. Subsection (3) is in these terms: Subject to subsection (4) below, where a rent for a dwelling-house has been registered under this Part of this Act, no application by the tenant alone or by the landlord alone for the registration of a different rent for that dwelling-house shall be entertained before the expiry of 3 years from the relevant date (as defined in subsection (5) below) except on the ground that, since that date, there has been such a change in certain specified circumstances as to make the registered rent no longer a fair rent. Subsection (4) is immaterial. Subsection (5) defines the relevant date. By the combined effect of that subsection and section 72 of the Act, the relevant date in the present case was the date of the application which led to the registration of the 1980 rent, namely July 25 1980. Accordingly the effect of section 67(3) in this case was that no application by Miss Moberley alone or by the landlord alone for the registration of a different rent for the property, except on the ground of a change in any of the specified circumstances, could be entertained before July 26 1983. McCullough J dealt with the construction point in this way at p 6D of the transcript of his judgment: An application to register is made under section 67(1). There is nothing in section 67(1) which restricts its operation to an application for registration for the first time; therefore an application by either landlord or tenant, whether or not made for the first registration, is made under section 67(1), and there is nothing in section 67(1) which prevents an application being made for registration of a rent which is the same as that already upon the register. Section 67(3) gives protection to both landlord and tenant. The tenant benefits because, until the expiry of three years from what I may loosely call the last registration, the landlord cannot even apply for an increase unless there has been a material change in the circumstances. Similarly, the landlord benefits because until the expiry of the same three-year period the tenant cannot even make such an application. It may of course be advantageous for either to apply within the three-year period for registration of the existing rent, because if this results in a fresh registration of that rent, then the appropriate period, which used to be three and is now two years, starts to run again. There is nothing in section 67(3) which prevents such an application being made. Miss Moberley also referred me to Schedule 11 to the Act, paragraph 5(b), but I see nothing in that provision either which supports the construction for which she contends. For those reasons the learned judge rejected Miss Moberley’s arguments on the construction point. He also rejected her arguments in relation to the other three grounds and accordingly dismissed her application. Miss Moberley now appeals to this court. She has conducted her own case both here and below. Miss Moberley’s argument on the construction point is essentially a simple one. She says that section 67(1) is concerned with only two kinds of application: first, an application for the registration of an initial rent; and, second an application to register a rent different from the registered rent for the time being. She says that there is no warrant, either in section 67 or in the Act as a whole, for the view that section 67(1) enables an application to be made for the re-registration of an existing registered rent. As to that argument, I would observe first of all that it certainly is rather an odd notion that the Act should permit an application to re-register a rent which is already on the register. It seems to me that there are at least three solid reasons for concluding that it does not. First, if an application of the kind suggested were permissible, it might lead to many more applications being made than Parliament can reasonably be taken to have intended. Section 67(3) only restricts applications for a different rent. Accordingly, if applications to re-register existing rents were permitted under section 67(1), they could be made frequently and, in theory at least, they might be made several times during the three-year period. Bearing in mind the administrative problems involved, I cannot believe that Parliament intended that applications should, in the absence of special circumstances, be made more frequently than once every three years. Second, it would in certain circumstances be open to either a landlord or a tenant to manipulate applications in such a way as to defeat the purpose of section 67(3). To give an example which is the opposite of the rather more compelling one given by Woolf LJ during the course of the argument, a tenant who opined that the rate of inflation was likely to increase rapidly in about three years’ time could, one year after the registration of one rent, apply for its re-registration and, assuming that there had been no significant increase during the first year, effectively prolong from three to four years the period during which his landlord was unable to secure a higher rent. Again, I cannot believe that the Act was intended to have that sort of result. Third, Miss Moberley has referred us to paras 4 and 5 of the Eleventh Schedule to the 1977 Act, which contains detailed provisions relating to applications for registration of rent. I will start by reading the first part of para 5: After considering, in accordance with paragraph 4 above, what rent ought to be registered or, as the case may be, whether a different rent ought to be registered, the rent officer shall, as the case may require, — (a) determine a fair rent and register it as the rent for the dwelling-house; or (b) confirm the rent for the time being registered and note the confirmation in the register. It appears to me, on a fair reading of that provision, that what is to be considered is either an application for the registration of an initial rent or one for the registration of a rent different from that which is for the time being suggested. There seems to be no third category. Moreover, it will be noted that para 5 refers to a consideration in accordance with para 4. Turning to para 4(1), I find that it is expressed in these terms: Where representations are made as mentioned in paragraph 2 above or the rent officer is not satisfied that the rent specified in the application is a fair rent or, as the case may be, that the rent for the time being registered is no longer a fair rent, he shall serve a notice under this paragraph. Once again, it seems to me that that provision recognises, and recognises only, the two kinds of application to which I have referred. I find it very difficult to think, as Mr Ouseley for the chief rent officer submits, that it is intended also to embrace an application for the re-registration of an existing registered rent. If that was what170 was intended, para 4(1) could have been drawn in these simple terms: ‘Where representations are made as mentioned in paragraph 2 above or the rent officer is not satisfied that the rent specified in the application is a fair rent, he shall serve a notice under this paragraph.’  I say that because on Mr Ouseley’s argument the existing rent would, ex hypothesi and just like an initial rent or a different rent, be specified in the application itself. In the circumstances it seems to me that the provisions of paras 4 and 5 of the Eleventh Schedule serve only to confirm the view at which I would have been prepared to arrive merely on the construction of section 67(1) and (3) and the purpose of the Act as a whole. It seems very doubtful whether Miss Moberley’s argument on the construction point was pushed home in front of the learned judge as clearly and fully as it has been in this court. However, having heard her argument, to whose quality I would like to pay the same tribute as did the judge, I am left in no doubt that it is correct. It does not seem to me that the countervailing considerations to which the judge referred in the passage which I have quoted from his judgment can fairly displace that view. I would therefore decide the construction point in favour of Miss Moberley and hold that section 67(1) does not enable an application to be made for the re-registration of an existing registered rent. What then is the effect of that disablement?  Does it invalidate the subsequent determination or is there some way in which it can be upheld?  As to that question, Mr Ouseley has referred us to the decision of the Divisional Court in Chapman v Earl [1968] 1 WLR 1315 and also to the later decision of this court in Druid Development Co (Bingley) Ltd v Kay (1982) 44 P & CR 76,* in which the earlier decision was distinguished. *Editor’s note: Also reported at (1982) 264 EG 1080, [1982] 2 EGLR 108. Chapman v Earl was a case under the predecessor legislation to the 1977 Act, where two tenants of the same landlord had completed on the prescribed forms, and submitted to the rent officer, applications for the registration of fair rents for their flats. However, neither tenant stated the rent which he sought to register. At first, that was not thought to be an objection. The matter proceeded in the normal way, rents were determined by the rent officer and the landlord appealed to the rent assessment committee, who slightly increased them. Then the landlord applied to the Divisional Court, and it was held, granting orders of certiorari, that the statement of the proposed rent was an essential condition to the exercise by the rent officer of his powers. Accordingly, a failure to specify a rent was a fatal defect which could not be waived. In the result, the court, in the exercise of their discretion, quashed the determinations of the rent assessment committee. I now return to section 67(2) of the Rent Act 1977, which I have not yet read. That subsection provides: ‘Any such application’ (ie any application under section 67(1)) ‘must be in the prescribed form and contain the prescribed particulars in addition to the rent which it is sought to register’. That is a provision comparable with those which were under consideration in the two earlier cases. Mr Ouseley submits that this is a case where the three-year period has now expired and an application specifying even a marginally different rent could have been entertained. Therefore, he says, there was adequate compliance with the requirements of section 67(2) and the case is covered by Druid Development Co (Bingley) Ltd v Kay. I cannot accede to that submission. If, as I have held, the application is not permitted by section 67(1), it never becomes necessary to consider section 67(2). If there is no power to make the application, there is no power for the rent officer to act on it. Alternatively, if the true view be that it is necessary to consider section 67(2), an application specifying a rent which cannot be re-registered must, at the least, stand on the same footing as one which does not specify a rent at all. The defect is a fundamental one. For these reasons I am of the opinion that the present case is either a fortiori to, or at the least on the same footing as, Chapman v Earl. The determination of the new rent is liable to be quashed. In all the circumstances, and subject to one final point, it would seem to me that Miss Moberley has made out her case on the construction point and its consequences, and that this appeal should be allowed on that ground. The final submission made by Mr Ouseley is that this court should, in the exercise of its discretion, refuse to make an order of certiorari in the present case. I have taken into account everything which Mr Ouseley has said on that point, including the fact that some hardship may indeed be caused to the landlord if he thought that the matter was properly in issue and that he had been given the opportunity to contend for a higher rent as from October 13 1985. I have also taken into account the fact that this is a case where the order is sought by the person who was herself responsible for making an application which she had no power to make. Having considered those points, I am not persuaded that there is any sound reason for our declining to make the order. That makes it unnecessary to consider any of the other three grounds of Miss Moberley’s application and we have not heard argument from Mr Ouseley on them, I propose to say nothing at all about them. I would allow this appeal. WOOLF LJ agreed and did not add anything. Also agreeing, SIR GEORGE WALLER said: I would very briefly say what my view was on the question of construction. In my opinion section 67, with subsections (1), (2) and (5), contemplates two possibilities, namely the registration of rent and the confirmation of a rent already registered. There is no provision in the section for re-registering a rent which has already been registered. Confirmation can take place only where an application has been made for a different rent. As my lord said, this view of the section is strengthened when one looks at Schedule 11, paras 4 and 5, and particularly para 5, which says: After considering, in accordance with paragraph 4 above, what rent ought to be registered or, as the case may be, whether a different rent ought to be registered, the rent officer shall, as the case may require, — (a) determine a fair rent and register it as the rent for the dwelling-house; or (b) confirm the rent for the time being registered and note the confirmation in the register. There is no provision there for re-registering a rent for which an application has been made to re-register the existing rent. The only opportunity of perpetuating for a further time the existing rent is where an application has been made for a different rent and the existing rent is confirmed. The appeal was allowed with costs in the Court of Appeal and below.