Atesheva v Halifax Management Ltd

Landlord and tenant – Rent determination – Section 13(4) of Housing Act 1988 – Appellant assured shorthold tenant making reference to First-tier Tribunal to challenge proposed rent increase – Application made by email not in prescribed form – Whether email substantially to same effect as prescribed form – Whether FTT having jurisdiction to determine new rent – Appeal allowed The appellant was an assured shorthold tenant of 34C Vicarage Grove, London SE5. The respondent was her landlord. The monthly rent was £1,900 payable on the first day of each month. On 20 December 2023, the respondent gave the appellant notice in the prescribed form under section 13(2) of the Housing Act 1988 Act proposing a new rent of £2,400 a month to commence on 1 February 2024. The form included guidance notes telling the recipient that if they did not accept the proposed increase, they might refer the notice to the FTT using Form 6, which they could obtain from the FTT or a legal stationer. On 31 December 2023, the appellant contacted the FTT by email. She received an immediate automated reply informing her of the aim to respond within 10 working days and asking her to refrain from contacting it during that period. At the foot of the automated reply was a link to the FTT’s website which said that copies of tribunal forms and further information were available. The FTT responded on 7 February 2024 directing the appellant to the prescribed form. Later the same day, the appellant submitted her application using that form. In March 2024, the FTT struck out the reference on the basis that it had no jurisdiction because the application had not been made before the date on which the proposed increase was due to take effect. The appellant appealed. Held: The appeal was allowed. (1) The effect of section 13(4) of the 1988 Act was that the increase proposed by the landlord took effect unless the tenant referred it to the FTT “before the beginning of the new period specified in the notice… by an application in the prescribed form”, or the parties agreed a different increase. The reference to something being “prescribed” meant prescribed by regulations made by statutory instrument (the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 (as amended)). Here, the prescribed form was form 6 in the schedule to the Regulations (regulation 3(f)). Regulation 2 of the 2015 Regulations introduced a degree of flexibility by providing that any reference to a numbered form was to the form bearing that number in the schedule to the Regulations, “or to a form substantially to the same effect”. The issue was whether the appellant’s email was sufficient to confer jurisdiction on the FTT to determine the rent payable under her tenancy.   (2) In considering the effect of the appellant’s communication with the FTT, no weight should be given to the fact that the information supplied was contained in an email, rather than on a printed form. What mattered was the information conveyed to the recipient, not the way in which it was presented: Tadema Holdings Ltd v Ferguson [1999] PLSCS 263; [1999] 32 HLR 866 considered. The question was whether the information in the email was substantially to the same effect as the information required by form 6, which depended on a comparison of the words used and the corresponding words of the prescribed form to see whether they meant substantially the same as the words which should have been used. The fact that the recipient was not misled was irrelevant. A valid notice might omit parts of the prescribed form that were simply irrelevant to the rights and obligations of the recipient: Sun Alliance & London Assurance Co Ltd v Hayman [1975] 1 EGLR 63; Tegerdine v Brookes [1978] 1 EGLR 33 and Sabella Ltd v Montgomery [1998] 1 EGLR 65 considered. Comparing the email of 31 December and the prescribed form, it was not possible to conclude that they were “substantially to the same effect”. The tenant’s application was the starting point of the fact-finding exercise and the appellant’s email did not do the job sufficiently to comply with section 13(4).   Accordingly, the appellant did not apply to the FTT using the prescribed form, or a form to substantially the same effect, before the date specified by the landlord’s notice for the increased rent to commence. (3) There was no doubt that a reference of a notice of increase received by the FTT on or after the date on which the proposed increase was due to take effect was not valid and did not give the FTT jurisdiction to determine a new rent: R (Lester) v London Rent Assessment Committee [2003] PLSCS 55; [2003] 1 WLR 1449. In this case, the appellant had referred the notice of increase to the FTT within the time limit set by section 13(4). She did so by her email on 31 December, a month before the deadline, in which she asked the FTT to review the proposed increase and provided details of the property, the increase and the date from which it was due to take effect. The question was whether the consequence of her failure to make her application in the prescribed form, or substantially to the same effect, was the same as making no application at all until after the deadline had passed. The correct approach was to look carefully at the whole of the structure within which the requirement arose and ask what consequence of non-compliance best fitted the structure as a whole: A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27; [2024] PLSCS 148 considered. (4) Pursuant to section 13(4), unless a notice was served in time, the statutory machinery for obtaining an increase came to an end on the date specified in the landlord’s notice and the rights of the parties were changed. The Act did not provide any route back from that change.  It was necessary that the notice be identified, since it had to be referred to the tribunal, and it was likely to be essential that the tenant either provided a copy of the notice itself or sufficient information to enable the notice to be clearly identified. But it was difficult to see why any additional information was necessary to achieve the objective of referring the notice to the tribunal. Accordingly, the email was sufficient to refer the notice of increase to the FTT and to give it jurisdiction to determine the open market rent payable from 1 February. The reference of the notice of increase would be remitted to the FTT for determination. The appeal was determined on written representations. Eileen O’Grady, barrister Click here to read a transcript of Atesheva v Halifax Management Ltd