Tenants and practitioners who advise them must ensure that any application to add or substitute a respondent in an application for a rent repayment order (RRO) is made before the expiry of the 12-month limitation period under section 41(2)(b) of the Housing and Planning Act 2016.
Section 41(2)(b) provides that a tenant may 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. In Gurusinghe and others v Drumlin Ltd [2021] UKUT 268 (LC); [2021] PLSCS 181, the Upper Tribunal (Lands Chamber) has underscored that the First-tier Tribunal does not have jurisdiction to extend the statutory time limit for an application for an RRO in circumstances where the statute itself makes no provision for the same.
The appellant tenants were the occupiers of a flat situated in Calthorpe Street, London WC1. They alleged that their landlord was guilty of the offence of having control of or managing an unlicensed house in multiple occupation, contrary to section 72(1) of the Housing Act 2004. The tenants occupied the flat from 10 September 2018 to 10 September 2019.
Owing to Covid-19 pandemic delays, the tenants were unable to apply to the FTT for an RRO until 26 April 2020. Unfortunately, the tenants subsequently discovered that they had erred in the identity of their landlord. On 1 December 2020, the tenants applied to substitute as respondent Drumlin Ltd, which was their actual landlord. This was after 10 September 2020, the date that the 12-month time limit for the purposes of section 41(2)(b) expired.
The appellants argued that the FTT had extensive powers under rule 10(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 to add, remove and substitute parties. The FTT disagreed and found that it lacked jurisdiction to add Drumlin Ltd.
Relying upon William Hill Organisation Ltd v Crossrail Ltd [2016] UKUT 275 (LC); [2016] PLSCS 192, the UT upheld the FTT’s decision. The UT observed that the FTT did not have jurisdiction to extend the limitation period under section 41(2)(b) of the 2016 Act. It was a time limit prescribed by primary legislation.
Under the provision of the 2016 Act, the FTT had no statutory power to extend the time limit. The 2016 Act did not contain a provision similar to that of section 35(3) to section 35(6) of the Limitation Act 1980, which permitted new claims to be commenced by way of the substitution of a party after the expiry of the relevant limitation period. Additionally, there was no power conferred by any procedural rule created by secondary legislation that would enable the FTT to override the limitation period.
Elizabeth Dwomoh is a barrister at Lamb Chambers
