Landlord and tenant – Determination of rent – Jurisdiction – Appellant tenant holding tenancy of flat – Respondent landlord seeking to increase rent – Appellant challenging notice of increase – First-tier Tribunal (FTT) deciding no jurisdiction to determine market rent – Appellant appealing – Whether substantial compliance with requirements of notice referring increase of rent sufficient to give FTT jurisdiction – Appeal allowed
The appellant held an assured shorthold tenancy of flat 28, James Derby House, Twickenham. On 19 February 2021, the respondent landlord sent him a notice of increased rent complying with section 13(2) of the Housing Act 1988, stating that from 5 April 2021 the rent would be increased from £112.49 to £114.18 per week.
Section 13(4) of the 1988 Act provided that the increased rent would take effect on 5 April 2021 unless before that date either the landlord and tenant agreed otherwise or: “the tenant by an application in the prescribed form refers the notice to the appropriate tribunal”.
The appellant wished to challenge the notice of increased rent. Accordingly, he made an application to the First-tier Tribunal (FTT) using Form 6 prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015. His application was received by the FTT on 1 April 2021, so it was in time. However, he enclosed with it the notice of increased rent for 2020-21 instead of the one served on him on in February 2021 about the rent for 2021-2022.
The FTT therefore decided he had not met the requirements of section 13(4); and that, as a result, it had no jurisdiction to determine a market rent for the property.
The appellant appealed. The appeal was determined under the Upper Tribunal’s written representations procedure. The respondent did not participate in the appeal.
Held: The appeal was allowed.
(1) The tribunal in giving permission to appeal identified two reasons why the FTT might have jurisdiction where the tenant had used the correct form but attached the wrong notice. First, it was arguable that the tenant had complied with the statutory requirement by making his application in a form “substantially to the same effect” as the prescribed form, as permitted by regulation 2 of the 2015 Regulations. Secondly, the FTT might have jurisdiction because the appellant had achieved substantial compliance with the statutory requirement, so that his application was valid but defective: Natt v Osman [2013] EWCA Civ 584; [2015] EGLR 11 considered.
In the present case, the FTT had jurisdiction for both those reasons. The appellant’s error was a minor one and did not mislead the landlord (which knew when the notice of increased rent had been served and knew that the latest notice was the one the tenant had to be challenging). It was straightforward to regard the appellant’s use of the FTT’s version of Form 6, despite his error in attaching the wrong notice of increase, as an application in a form substantially to the same effect as the prescribed form.
(2) As to “substantial compliance” with the statutory requirement, a distinction might be made between two broad categories: (i) those cases in which the decision of a public body was challenged, often involving administrative or public law and judicial review, or which concerned procedural requirements for challenging a decision whether by litigation or some other process; and (ii) those cases in which the statute conferred a property or similar right on a private person and the issue was whether non-compliance with the statutory requirement precluded that person from acquiring the right in question. In the first category, in accordance with the more recent interpretative approach, the courts had asked whether the statutory requirement could be fulfilled by substantial compliance and, if so, whether on the facts there had been substantial compliance even if not strict compliance: Natt v Osman applied.
(3) This case fell within the first category, since it was about the procedure for challenging the landlord’s notice by litigation. This was a procedure where the statutory requirement could be fulfilled by substantial compliance. The form asked for a number of items of detail, for example about the number of rooms, shared facilities, improvements to the property and the provision of services, and it would be ridiculous to suppose that a mistake in such material would deprive the FTT of jurisdiction.
In the present case, the error was not in the form itself but in the attachment. The error caused confusion to the FTT but it could not have confused the respondent, which was aware that a notice of increased rent had been served and was aware of the timetable for challenge. The application was made in substantial compliance with the statutory requirements and so the FTT had jurisdiction to give directions for the tenant to correct the error. The error was in fact corrected before any such directions were given and the application should have proceeded.
(4) Accordingly, the FTT had jurisdiction to consider the notice of increased rent sent to the appellant in February 2021 and his application to the FTT could proceed.
Eileen O’Grady, barrister
Click here to read a transcript of Johnson v Richmond Housing Partnership Ltd
