Practice and procedure – First-tier Tribunal – Civil penalty – Appellant claiming no receipt of final penalty notices – Appellant appealing more than two years after sending of notices – First-tier Tribunal refusing to extend time and striking out appeal – Whether FTT erring in law – Appeal allowed
The respondent’s housing officers visited a house in Wisbech and concluded that it was an unlicensed HMO. The officers also found some fire and safety deficiencies.
On 2 April 2020, the respondent posted to the property two notices of intent to impose financial penalties under section 249A of the Housing Act 2004, addressed to the appellant as the person managing the HMO. The notices informed him of the respondent’s intention to impose a penalty of £17,000 for breaches of the Management of Houses in Multiple Occupation Regulations 2006 and a further penalty of £7,000 because he was managing an unlicensed HMO. An improvement notice was also served.
On 21 May 2020, the respondent issued two final notices confirming the penalties proposed in the original notices of intent. They were sent by first class post addressed to the appellant at the property.
The appellant lodged an appeal with the FTT against the financial penalties 25 months after the date the notices should have been delivered, long after the 28 days allowed by rule 27(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. He said that the delay was because he had not received the final notices.
The FTT struck out the application pursuant to rules 9(2)(a) and 9(3)(e) of the 2013 Rules. It concluded that the appellant had failed to provide good reasons for the delay and that the tribunal had no jurisdiction to hear the appeal. Alternatively, the extreme delay in making the application was an abuse of process and it was appropriate to strike the matter out. The appellant appealed.
Held: The appeal was allowed.
(1) Until a final notice was properly served, time for appealing did not begin to run and there was no onus on the intended recipient to begin an appeal.
The FTT had asked itself the wrong question, namely, whether the appellant had provided a good reason why time should be extended in his favour. There was a prior question of fact, namely, whether despite having been posted to the appellant’s proper address, the final notices had nevertheless not been given to him. The onus of proving that the notices had not been received, was on the appellant. He maintained that he had never been given the final notices. The question for the FTT was whether it believed him or not.
The FTT had invited the appellant to make representations to the tribunal as to why the proceedings should not be struck out. It did not seem fair for the FTT to have placed weight on the absence of a witness statement when the tribunal’s own invitation to the appellant was to provide representations.
(2) The 2013 Rules acknowledged the distinction between evidence and argument, and between a witness statement and submissions (synonymous with representations). Rule 18(1) gave examples of how the FTT’s case management powers might be exercised: it might give directions as to issues on which it required evidence or submissions (rule 18(1)(c)), and the nature of the evidence or submissions it required (rule 18(1)(d)). By rule 18(1)(g) directions might be given as to how any evidence or submissions were to be provided, which might include a direction for them to be given orally at a hearing, or by written submissions or witness statement.
(3) The directions given by the FTT were not well adapted to the critical issue in this case. If the FTT had wished to prescribe the way in which any evidence was to be given it had power to do so. However, it just gave the appellant an opportunity to make representations, which he did. It was not open to the FTT to disregard or diminish those representations merely because they did not come in the form of a witness statement. The representations still needed to be assessed, and a decision made whether the explanation was true, but the FTT did not undertake that exercise.
The fact that copies of final notices were not requested was supportive of the appellant’s case. It was consistent with his claim that he did not receive the notices during 2020 that his representative made no mention of them in December that year and did not ask for further copies.
(4) The FTT evidently found some difficulty relating the circumstances of the case to the terms of rule 9 of the 2013 Rules. It relied on rule 9(2)(a) on the grounds that the tribunal did not have jurisdiction and alternatively on rule 9(3)(d) on the grounds that the extreme delay in making the application meant that it was an abuse of process. Neither of those provisions was appropriate in this case.
Rule 26(1) provided that an applicant had to start proceedings before the tribunal by sending or delivering a notice of application. The procedural requirement in rule 27(2) to start the proceedings within 28 days of the date on which the decisions “was sent to the applicant” presupposed that the giving of the notice was successfully achieved; the Rules could not override the substantive requirement of paragraph 6 of schedule 13A to the 2004 Act that a final penalty notice had to be given to the applicant.
If that requirement had not been complied with there was nothing for the applicant to appeal against. If it had been complied with, and an appellant did not start proceedings by sending a notice of application within 28 days, rule 6(3)(a) gave the FTT power to extend or shorten the time for compliance, even if the application for an extension was made after a time limit had expired.
(5) In considering whether to exercise the power to extend time, the guiding principle was in rule 3 which described the FTT’s overriding objective to deal with cases fairly and justly. When a significant sum was in issue, as in this case, and when the issue of fact on which the right to appeal might turn depended on the credibility of the evidence of the recipient of a notice about the time he received it, it might be difficult for the FTT to reach a fair and just decision without giving the recipient the opportunity to give oral evidence.
The FTT’s decision would be set aside, and the matter remitted to the FTT for further consideration.
Anton van Dellen (instructed by direct access) appeared for the appellant; The respondent did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Naujokas v Fenland District Council
