Housing – Housing Act 2004 – Prohibition order – Appeal – Appellant failing to appeal against prohibition order within time limit in para 10(1) of Schedule 2 to 2004 Act – Discussions with respondent council over alternative works to remedy specified hazards – Appellant’s son carrying out improvement works and later re-letting premises without first giving respondent opportunity to re-inspect – Whether appellant having “good reason” for delay in appealing so as to justify extension of time under para 10(3) – Whether entitled to rely on earlier representation by respondents as to their support for appeal out of time – Whether waiver by respondents – Appeal dismissed
The appellant owned premises in London SE5 which she let out as nine self-contained living units. In late March 2011, the respondent council issued prohibition orders, under Part 1 of the Housing Act 2004, prohibiting the use of the premises until specified works were carried out to remedy hazards to the occupiers. The required works involved the conversion of the nine units into five 5 bedsits. The statutory period for appealing, under para 10 of Schedule 2 to the 2004 Act, expired 28 days after the making of the orders, in late April 2011. The appellant brought no appeal. Instead, her son, who managed the premises, engaged in discussions with the respondent about possible alternative improvements that would still retain nine flats.
In April 2011, while those discussions were ongoing, the respondents wrote to the appellant’s son, in response to his concerns about the impending appeal deadline, indicating that they would support an appeal out of time and would ensure that the appellant had the opportunity to make a legal challenge to the prohibition orders. The appellant’s son submitted plans for his proposed works and, in response to his request for a withdrawal of the prohibition orders, the respondents indicated in October 2011 that they would re-inspect the premises once the agreed works had been completed and would withdraw the orders if the works were satisfactory.
In April 2014, after the appellant had carried out substantial works and some of the flats had been re-let, the respondents re-inspected the premises pursuant to an order of the magistrates’ court and informed the appellant that they were considering prosecution for an offence of using the premises in contravention of the prohibition orders, contrary to section 32 of the 2004 Act.
The appellant then sought to appeal against the orders out of time. She relied on the respondents’ April 2011 letter as: (i) providing a “good reason” for her delay in seeking to appeal, such that the first-tier tribunal (FTT) should give permission to appeal out of time pursuant to para 10(3) of Schedule 2; or, alternatively (ii) constituting a waiver by the respondents of their right to object to any appeal. The FTT refused permission to appeal out of time but gave permission for an appeal to the Upper Tribunal against that decision.
Held: The appeal was dismissed.
(1) When considering whether to give permission to appeal out of time, pursuant to para 10(3) of Schedule 2 to the 2004 Act, the FTT was required to be satisfied both that there was good reason for the failure to appeal before the end of the period of 28 days and also that there was good reason for any delay since then in applying for permission to appeal out of time. While the correspondence between the appellant and the respondents provided the appellant with a good reason for not appealing within the 28-day period, it did not justify the appellant’s subsequent delay in applying for permission to appeal out of time.
At the stage of considering an extension of time, the substantive merits of the proposed appeal were not relevant. Unless the FTT was satisfied that there was good reason for the delay in applying for permission to appeal out of time, then it could not go on to consider the merits, save in circumstances, not applicable in the instant case, where the merits themselves provided or supported the reason for the delay: Short v Birmingham City Council [2004] EWHC 2112 (QB); [2005] HLR 6 considered.
Each case was fact-specific and there might be cases where a tribunal could rightly be satisfied that there was a good reason for a delay of three years or even more. However, the circumstances of the instant case were such that the appellant had no reason for her delay in seeking permission to appeal out of time. The April 2011 letter did not amount to a representation that the respondents would support an appeal out of time however much time had passed, whatever the circumstances and irrespective of any changes or developments that had taken place. The representation was made in a particular context, and at a particular time, when the parties were negotiating the scope and content of the works necessary to comply with housing standards. The position changed as a result of the correspondence in October 2011, the effect of which was to qualify the earlier representation. The October correspondence made clear to the appellant’s son that the prohibition orders remained in place and that he was expected to contact the respondents and give them the opportunity to re-inspect the premises before any flats were re-let. In full knowledge of that position, the appellant’s son had re-let some of the units without informing the respondents, who had discovered that situation on an inspection made in April 2014, not at the initiative of the appellant’s son but pursuant to an order of the magistrates’ court. Had the appellant’s son contacted the respondents before re-letting to give them an opportunity to re-inspect, and the authority had either failed to inspect within a reasonable time or had re-inspected and concluded that the premises could not be re-let, then the appellant’s son could reasonably have expected at that stage to be able to challenge the prohibition orders in reliance on the April 2011 letter. However, by proceedings as he did, his conduct was such that he could no longer be said to have continued to act in reliance on the April 2011 representation.
(2) The conduct of the respondents could not amount to any waiver of their right to object to a late appeal. In taking enforcement action, the respondents were acting nor for their own benefit but the benefit of local residents generally and the occupiers, actual or potential, of the properties enforced against. The time limit contained in para 10(1) of Schedule 2 was intended to provide a clear structure for enforcement action and to ensure there was certainty for all affected. Paragraph 10(3) set out the circumstances in which appeals could be made out of time, provided that the intending appellant could cross the threshold there set down. Where parliament had clearly legislated for the circumstances in which a statutory time limit could be dispensed with, setting out clearly when appeals or applications could be made outside the statutory time limit, that provision was to be followed and there was no room for the operation of the doctrine of waiver. It was not possible for parties to waive the effect of para 10(1) and thereby oust the FTT’s power to govern its own procedure. In any event, the appellant’s case on waiver would have failed on the facts: Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850; (1970) 216 EG 31 distinguished.
Piers Harrison (instructed by direct access) appeared for the appellant; Wayne Beglan (instructed by the legal department of Southwark London Borough Council) appeared for the respondents.
Sally Dobson, barrister
