A decision as to the date on which time began to run, and whether it had expired when a notice of application was served, was not a discretionary decision.
It required the FTT to make a finding of fact on that issue.
In Naujokas v Fenland District Council [2023] UKUT 190 (LC); [2023] PLSCS 136 the FTT struck out an appeal made by the appellant landlord against financial penalties totalling £24,000 imposed by the respondent local authority for housing related offences.
The respondent alleged that the final notices were delivered to the landlord at his home address in May 2020.
Rule 27(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 provided that an appeal must be lodged within 28 days of the date on which the decision was sent to the appellant.
The landlord lodged his appeal in July 2022, 25 months after the time limit had expired. The landlord argued that he had not received the notice until July 2022 and therefore his application was in time.
The FTT accepted that the final notices were delivered to the landlord in May 2020 and that he had not provided any good reason as to why time should be extended.
In striking out the appeal the FTT relied on rule 9(2)(a) on the basis that it did not have jurisdiction and, in the alternative, rule 9(3)(d) on the basis that the extreme delay in making the application was an abuse of process.
On an appeal brought by the landlord, the Upper Tribunal (Lands Chamber) found that 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.
Time did not begin to run until a final notice had been properly served. The correct starting point was to determine the question of fact of whether the final notices, although posted to the landlord’s proper address, had nevertheless not been given to him.
The onus of proving that the notices had not been received, was on the landlord. He had maintained throughout that he had not been given the notices. It was a matter for the FTT whether it believed him or not.
In considering whether to exercise its discretion to extend time, the FTT was required to have regard to the overriding objective in rule 3.
When a significant sum was in issue, and the right to appeal turned on a question of fact that may depend on the credibility of the evidence of the appellant, it would be difficult for the FTT to reach a fair and just decision without giving the appellant the opportunity to give oral evidence.
Elizabeth Dwomoh is a barrister at Lamb Chambers
