Housing – Rent repayment order – Procedure – Appellants applying for joinder of true landlord as respondent to application for rent repayment order after expiry of statutory limitation period – First-tier tribunal (FTT) dismissing application for substitution – Appellants appealing – Whether FTT having power to substitute new respondent to application for rent repayment order after expiration of limitation period – Appeal dismissed
The appellant tenants applied to the First-tier Tribunal (FTT) to substitute D Ltd in place of C Ltd as one of the two respondents to the appellants’ application for rent repayment orders under Part 4 of the Housing and Planning 2016.
The appellants argued that their landlords had committed an offence, under section 72(1) of the Housing Act 2004, of having control in relation to, or managing, an unlicensed house in multiple occupation (HMO) at 41 Calthorpe Street, London WC1 which comprised a four bedroom, self-contained flat within a three-storey converted house with a shared kitchen and one bathroom and one shower-room. The flat was occupied by the four appellants.
The appropriate HMO licence was not held during the relevant period which ran from which ran from 10 September 2018 to 10 September 2019; and the application for such a licence was not made until 5 February 2020, significantly after the expiry of the tenancy and the relevant period.
The respondents applied to strike out the application under rule 9(3)(d) and (e) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 on the basis that neither of the respondents was the landlord of the flat and therefore no rent repayment order could be made against either of them. The registered proprietor of the long leasehold title to the flat was D Ltd, a company incorporated in the Isle of Man.
The appellants applied for D Ltd to be substituted as a respondent in the place of C Ltd. The FTT determined that it had no jurisdiction to do so as the 12-month limitation period, prescribed by section 41(2)(b) of the Housing and Planning Act 2016, had expired by the date of the application. The appeal was determined on written representations.
Held: The appeal was dismissed.
(1) Section 41(2)(b) of the 2016 Act prescribed a 12 months’ limitation period for applications for rent repayment orders by providing that a tenant might apply for such an order only if the relevant offence “was committed in the period of 12 months ending with the day on which the application was made”. The FTT had no power to extend that limitation period. It mattered not that the limitation period was prescribed by the 2016 Act rather than by the Limitation Act 1980; it was still a limitation period prescribed by primary legislation, in the form of a statute, which could not be extended by the FTT because there was no statutory power to do so. Nor was there any statutory provision, or power conferred by any procedural rule created by secondary legislation, which would enable the FTT effectively to override that limitation period by substituting the correct respondent landlord to proceedings commenced within time but against the wrong respondent: William Hill Organisation Ltd v Crossrail Ltd [2016] UKUT 275 (LC); [2016] PLSCS 192 followed.
(2) Had section 35 of the 1980 Act, and the procedural rules made thereunder, extended to the FTT, they would have conferred the power to make the necessary order for substitution. That was because it was now clearly established that the correct approach to any application for the substitution of a new party for the party named in the claim form, on the basis that the latter party was named by mistake, was whether it was possible to identify the defendant by reference to a description which was material to the particular claim from a legal point of view. Thus, substitution would be allowed where a claimant had made a mistake as to the identity of the true landlord of premises to which the claim related. However, section 35, and the rulemaking powers which it conferred, had no application to the Upper Tribunal, still less to the FTT: Evans Construction Co Ltd v Charrington & Co Ltd [1983] QB 810 and Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701; [2008] 1 WLR 585 considered.
Thus, the FTT was correct when it determined that it did not have the necessary jurisdiction to allow the substitution of a party after the expiry of the applicable limitation period. In doing so, it was merely applying a long-established rule of practice, which continued to apply in cases where recourse to section 35, and the procedural rules made in accordance with that section, had no application, as in the present case.
(3) Since the FTT’s decision was correct in law, the tribunal had no jurisdiction to allow an appeal from its decision. The escape route, afforded by section 25 of the Tribunals, Courts and Enforcement Act 2007, which vested the Upper Tribunal with the powers of the High Court in relation to the attendance and examination of witnesses, the production and inspection of documents, and “all other matters incidental to the Upper Tribunal’s functions” was not available to the FTT in the present case because no similar statutory provision applied to the FTT. Nor could the Upper Tribunal avail itself of its powers under section 25 in a case such as the present, where it was exercising its appellate jurisdiction, because that was confined by the 2007 Act to correcting errors of law on the part of the FTT. In William Hill, by way of contrast, the Upper Tribunal was exercising its original jurisdiction, equivalent to that of the High Court, when discharging its function of resolving a dispute as to the level of an award of statutory compensation for disturbance.
(4) Accordingly, the FTT’s decision was correct in law. There was no power to substitute a party in these proceeding after the 12-month time limit had expired. That time limit ran until 10 September 2020, 12 months after the expiration of the tenancy agreement. Therefore, D Ltd could not be substituted for C Ltd since the application for substitution was made in December 2020. The application to add or substitute a party could have been made in time, before 10 September 2020, as the appellants and their representatives had the information required to make such a decision at that time so that any discretion should be exercised in favour of D Ltd.
It was unnecessary to consider whether, in the exercise of any discretion, the substitution should have been ordered because there was no jurisdiction, whether in the FTT or the Upper Tribunal, to order such substitution.
Eileen O’Grady, barrister
Click here to read a transcript of Gurusinghe and others v Drumlin Ltd
