Landlord and tenant – First-tier tribunal – Procedure – Respondent landlord notifying applicant tenant of increased rent for dwelling under section 13(2) of Housing Act 1988 – Applicant referring notice to First-tier Tribunal (FTT) out of time – FTT deciding lack of jurisdiction – Tenant applying for permission to appeal – Whether FTT having jurisdiction to deal with referral of notice out of time – Application dismissed
The applicant tenant succeeded to an assured periodic tenancy of 16 Honley Road, Catford, London, following his mother’s death. On 2 March 2017 the respondent landlord caused a notice to be served under section 13(2) of the Housing Act 1988 proposing that the rent should be increased to £1,500 pcm from 7 April 2017. On 24 April 2017, the respondent wrote to the applicant pointing out that he was still paying rent at the old rate and asking him to pay the difference. On 1 May 2017, the appellant replied that he had not seen the notice. He stated that he had been very ill for a year and assumed that one of the people who had been “house-minding” while was ill had discarded the notice along with junk mail. He stated that he would contest the increase by applying to the First-tier Tribunal (FTT) under section 14(1) of the 1988 Act to determine the rent. On 19 May, six weeks outside the time limit specified in section 13(4) of the 1988 Act, the appellant referred to the FTT which held that it had no jurisdiction to determine the rent because the referral had been brought out of time.
The appellant’s application for permission to appeal fell to be redetermined by the Upper Tribunal after its initial decision to refuse permission was quashed by the High Court on a judicial review made pursuant to permission granted under CPR 54.7A and the principles in R (on the application of Cart) v Upper Tribunal [2011] UKSC 28 (the second appeal test).
Held: The application was dismissed.
(1) In deciding to quash the refusal of permission to appeal, the judge failed to address either the relevant legislation or the jurisdictional issue referred to in the reasoning of the FTT and the Upper Tribunal. He neither identified any error of law in that reasoning nor applied the second appeal test required by Cart and CPR 54.7A(7). He merely repeated the appellant’s assertion that it was “unreasonable and unfair” for him not to be allowed to reargue his case, without identifying any legal principle (or legal authority) which would entitle the Upper Tribunal to depart from the absolute language in section 13(4) of the 1988 Act. Where the High Court made an order granting permission to apply under CPR 54.7A, the judge’s reasoning was very important, particularly where the applicant was a litigant in person and had failed to identify any legal error. A statutory tribunal could not arrogate to itself jurisdiction which Parliament had not conferred on it. The Upper Tribunal as a “superior court of record” was able to create precedent and appeals lay from it to the Court of Appeal, not the High Court. Except for the Cart jurisdiction, the Upper Tribunal was treated as having equivalent status to the High Court. An Upper Tribunal judge was not obliged to follow an earlier High Court decision if convinced that it was wrong. The effect of the High Court order in the present case was that the previous refusal of permission to appeal by the tribunal had been quashed and the decision on whether to grant permission to appeal had to be retaken. However, the jurisdictional issue remained.
(2) The relevant legislation went further than simply imposing a time limit, in absolute terms, within which a tenant might challenge a landlord’s notice by referring the matter to the FTT. It mandated that if, within that time limit, there was no such referral, the rent stated in the landlord’s notice became legally payable. Given the explicit language of section 13(4) and 14(1) and, in particular, the provision that a tenant’s failure to make an application in accordance with section 13(4) resulted in the rent payable being altered to that specified in the section 13(2) notice, the FTT had no jurisdiction under section 14(1) of the 1988 Act to deal with a purported referral received outside the time limit in section 13(4). On the facts, the FTT lacked jurisdiction because of the clear language of the 1988 Act which did not allow for any different outcome and did not provide for any discretionary enlargement of the time limit. Because that was a matter going to the statutory jurisdiction of the FTT, the absolute nature of the time limit in section 13(4) could not be disregarded. It was the duty of the tribunal to give effect to it. Accordingly, the FTT and the judge in the Upper Tribunal were correct to refuse permission to appeal: R (on the application of Cart) v Upper Tribunal [2011] UKSC 28 followed.
(3) Article 6(1) of the European Convention on Human Rights provided no legal basis outside the express language of the 1988 Act which would authorise a more flexible application of section 13(4) and 14(1). The statutory imposition of a time limit for the service of a notice, in this case by a tenant, was commonly found in legislation dealing with private law, contractual relationships between individuals and entities, such as the letting of residential, agricultural and business premises. There were many examples in property legislation of timetabled machinery which determined whether the alteration of a legal relationship (or its terms) might or might not take place, with or without a hearing before a court or tribunal. One objective of such machinery was to achieve legal certainty for the parties to a contract. An increase in rent was a normal incident of a landlord and tenant relationship that the rent might be increased in accordance with the legislation. The time limits laid down by the 1988 Act were not onerous and the legislation required forms to be used which made it plain what action needed to be taken and that action was relatively straightforward: Pomiechowski v District Court of Legnica, Poland [2012] 1 WLR 1604 and Adesina v Nursing and Midwifery Council [2013] 1 WLR 315 not applied.
The applicant appeared in person; Mark Dencer (instructed by Whitehead Monckton, of Maidstone) appeared for the respondent.
Eileen O’Grady, barrister
