Housing – Rent repayment order – Limitation – Appellant tenants applying to First-tier Tribunal for rent repayment orders – FTT deciding lacked jurisdiction to make RROs because applications made too late – Appellants appealing – Tribunal determining meaning of “period of 12 months ending with the day on which the application is made” – Date and time at which defence taking effect – Appeals dismissed
These appeals both raised the issue of how long a tenant had to apply for a rent repayment order against a landlord, who had been managing a house in multiple occupation without a licence, after they had acquired a defence to the offence in section 72(1) of the Housing Act 2004.
In the first appeal, the appellants held a tenancy of Flat 501, Jerome House, Lisson Grove, London, from the respondent landlord. Section 41(2)(b) of the Housing and Planning Act 2016 provided that a tenant might apply for an RRO only if the offence was committed in “the period of 12 months ending with the day on which the application is made”. The FTT decided it did not have jurisdiction because the appellants were two days too late as the defence in section 72(4)(b) (of having applied for an HMO licence) took effect from the first moment of the day; the last day on which the offence was committed was 3 May 2022 and the 12-month period began at the first moment of 5 May.
In the second appeal, the respondent owned Flat 3, 8 Reighton Road, London. On 16 November 2022, the respondent applied for an HMO licence but could not pay the fee because the local authority’s website was not functioning. The FTT held that the last date on which the respondent committed the offence was 15 November and it had a reasonable excuse defence (under section 72(5)) from 16 November onwards. The application to the FTT was made on 15 November 2023, and was therefore out of time.
Held: The appeals were dismissed.
(1) In calculating the period that had elapsed after the occurrence of a specified event such as the giving of a notice, the day on which the event occurred was excluded from the reckoning. When the relevant period was a month or a specified number of months after the giving of a notice, the general rule was that the period ended upon the corresponding date in the appropriate subsequent month: Lester v Garland (1808) 33 ER 748, Stewart v Chapman [1951] 2 KB 792 and Dodds v Walker [1981] 1 WLR 1027 considered.
The corresponding date rule clearly applied where one had to compute time after a specified event. The rule was well-established and had the virtue of simplicity and it was to be inferred that the same rule was to be followed in computing a period before a specified event. If the statute had required that the offence must have been committed within the 12 months before the appellants applied to the FTT, then the corresponding date rule would apply and the period would run from the first moment of 4 May 2022.
(2) However, that did not follow from the wording of section 41(2)(b) of the 2016 Act. A period of 12 months ending on a particular date was not the same, as a matter of ordinary language, as the period of 12 months before that date. The language implied that the start and end date were each within the period. It therefore started not on 4 May 2022, whose beginning was more than 12 months away from any point during 4 May 2023, but at the first moment of 5 May 2022.
Had parliament intended consistency with the way that limitation periods were expressed, it would have used the language of such periods to specify the period in question, by referring to 12 months “before” the application to the FTT or “after” the last day on which the offence was committed. Instead, a distinctly different form of words was used whose plain meaning was different and was not within the contemplation of the limitation cases or of the cases that used the corresponding date rule. Accordingly, the period was one of 12 months, it started on 5 May 2022 and ended with the date on which the application was made, 4 May 2023.
(3) The offence under section 72(1) of the 2004 Act was a continuing offence and fractions of a day were to be excluded for the sake of simplicity and for the avoidance of impossible questions. There was no authority that required the interests of potential civil claimants who faced a limitation period to be taken into account when determining when a particular event happened in any civil case, let alone in a criminal context where the issue was when did a defence take effect.
The period specified in section 41(2) of the 2016 Act was not the same kind of limitation period as those imposed by the Limitation Act 1980. A limitation period derogated from the ordinary rights of claimants. Section 41(2)(b) was part of a series of provisions that created a time limited right for tenants to apply for an RRO. That was not a right that they would have at all absent this suite of provisions; nothing was taken away from them. Instead, provisions aimed at the penalisation and deterrence of housing offences gave the tenants a right to apply for an RRO for a limited period, rather than giving them an open-ended right.
(4) The present appeals were matters of criminal liability. Faced with a choice between deciding that a landlord was committing an offence throughout the day on which they applied for a licence, and deciding that they had a defence throughout the day on which they applied for a licence, the tribunal chose the latter. As fractions of a day had to be ignored, the landlord had a defence in the morning because he applied for a licence later in the day. If there was any ambiguity, the tribunal should lean in favour of the potential offender.
The last date on which the respondent in the first appeal committed the section 72(1) offence was 3 May 2022, and the last date on which the respondent in the second appeal committed the offence was 15 November 2022. Accordingly, both appeals failed. The FTT was right to conclude that it had no jurisdiction to make a rent repayment order in either case.
In the first appeal, Justin Bates KC and Peter Sibley (acting pro bono) (instructed by JMW Solicitors LLP) appeared for the appellants; Karol Hart (of Freemans Solicitors) appeared for the respondent; In the second appeal, the parties appeared by their representatives.
Eileen O’Grady, barrister
