DECISION

Introduction

1. This appeal is against a decision of a Residential Property Tribunal of the Midland Rent Assessment Panel (“the RPT”) made on 22 October 2012 by which it determined that no valid application under paragraph 32 of Schedule 5, Housing Act 2004 (“the 2004 Act”) had been made to it by the appellant within the applicable time limit of 28 days, and refused to extend time for the making of such an application. The application in question concerned a decision of the respondent, Nottingham City Council, under section 64 of the 2004 Act, to licence the use of 292 Alfreton Road, Nottingham (“the Property”) as a house in multiple occupation for a period of two years from 1 May 2012. The appellant’s complaint was that the licence had been granted for only two years rather than for the maximum period of five years permitted by section 68(4) of the 2004 Act.

2. The appeal raises two issues:

(1) Whether an informal letter written by the appellant to the RPT on 30 March 2012, which it is agreed did not contain sufficient information to satisfy the requirements governing applications to the RPT contained in regulation 6(1) of the Residential Property Tribunal Procedure and Fees (England) Regulations 2011 (“the 2011 Regulations”), ought nonetheless to have been accepted as a valid appeal lodged within time by the exercise of the power contained in regulation 6(4) of the 2011 Regulations to relax or dispense with any of the requirements of regulation 6(1).

(2) Assuming the letter of 30 March 2012 was not a valid application, and that the conditions for relaxing or dispensing with the requirements of a valid application are not met in this case, whether the RPT erred in the exercise of its discretion when it refused to extend time for the making of the application.

3. At the request of both parties I have determined the appeal on the basis of their written representations.

The relevant procedural rules

4. Local housing authorities are given powers in relation to the licensing of houses in multiple occupation (“HMOs”) by Part 2 of the 2004 Act. Schedule 5 of the 2004 Act, which is given effect by section 71, deals with procedural requirements and with appeals against licence decisions. At the time with which this appeal is concerned a right of appeal lay to the RPT under paragraph 31 of Schedule 5 against a decision of a local housing authority to refuse to grant an HMO licence, or in relation to any of the terms of an HMO licence. Since 1 July 2013 (in England) the right of appeal now lies to First-tier Tribunal (Property Chamber).

5. Paragraph 33 of Schedule 5 to the 2004 Act deals with time limits for appeals and provides, so far as relevant, as follows:

“33(1) Any appeal under paragraph 31 against a decision to grant, or (as the case may be) to refuse to grant, a licence must be made within the period of 28 days beginning with the date specified in the notice under paragraph 7 or 8 as the date on which the decision was made.

(3) A residential property tribunal may allow an appeal to be made to it after the end of the period mentioned in sub-paragraph (1) or (2) if it is satisfied that there is a good reason for the failure to appeal before the end of that period (and for any delay since then in applying for permission to appeal out of time).”

6. The 2004 Act does not prescribe any form of application for the exercise of the right of appeal; that is left to be dealt with by tribunal procedure rules.

7. At the relevant time the 2011 Regulations applied to RPT proceedings to determine applications in respect of premises in England. Regulation 6(1) concerned the provision of particulars of an application and (so far as relevant) it provided as follows:

“6(1) an application … must be in writing and must contain the following particulars –

(a) the name and address of the applicant;

(b) the name and address of the respondent where known to the applicant or, where not known, a description of the respondent’s connection with the premises;

(d) the applicant’s connection with the premises;

(e) the applicant’s reasons for making the application including the remedy sought;

(f) where known to the applicant, the name and address of any interested persons;

(g) a statement that the applicant believes that the fact stated in the application are true;

(h) be dated and signed; and

(i) in respect of each application to which a paragraph in the Schedule to these Regulations applies, the documents specified in sub-paragraph (2) of that paragraph.”

The “interested persons” referred to in paragraph (1)(f) are identified in regulation 2 of the 2011 Regulations as any other person who would have been entitled under the 2004 Act to make the same application.

8. The documents which are required to be contained in an application under paragraph 6 relating to a decision granting or refusing an HMO licence are specified in paragraph 16(2) of the Schedule to the 2011 Regulations. The documents comprise a copy of the local housing authority’s notice under paragraph 1 of Schedule 5 to the 2004 Act (inviting representations before the grant of the licence), a copy of the notice under paragraph 7 of Schedule 5 (containing the reasons for the decision to grant the licence and the date on which the licence was granted) and a copy of the licence itself.

9. Paragraph (4) of regulation 6 of the 2011 Regulations conferred a limited power on the RPT to dispense with or relax the requirements of paragraph (1), in the following terms:

“(4) Any of the requirements contained in paragraph (1) … may be dispensed with or relaxed if the tribunal is satisfied that –

(a) the particulars and documents contained in an application are sufficient to establish that the application is one which may be made to a tribunal; and

(b) no prejudice will be, or is likely to be, caused to any party to the application as a result of such dispensation or relaxation.”

The Facts

10. The facts relevant to the determination of the appeal are not in dispute and I take the following from the decision of the RPT and the documents produced by the parties.

11. On 5 October 2011 the appellant applied to the respondent, as the local housing authority, for HMO licences for the Property and for another of his houses, 298 Alfreton Road.

12. On 6 March 2012 the respondent notified the appellant of its decision under section 64 of the 2004 Act to grant the licences (having concluded, amongst other things, that the appellant was a fit and proper person to manage HMOs). The licence for the Property stated that it would come into force on 1 May 2012 and remain in effect for a period of 2 years from that date. It was subject to a large number of conditions, none of which appears to have been contentious, other than the two year term for which it was granted.

13. The letter of notification of 6 March 2012 informed the appellant that any appeal against the decision to grant the licence should be made to the RPT within 28 days beginning with the date on which the decision was made. The licence which accompanied the letter contained the same information together with two pages of notes which commenced with the following statement:

“These notes are intended as generally information to the recipients of this notice as a summary of their rights of appeal against the notice. The notes are not intended to be definitive and any persons considering an appeal are advised to seek independent legal advice and/or refer to the full version of the Housing Act 2004. Further advice can be obtained from the Residential Property Tribunal at [its website address].”

14. The notes included a further statement of the recipient’s entitlement to appeal to the RPT, including in relation to any of the terms of the licence. Under the heading “time limits for appeals” the notes recited paragraphs 33(1) and (3) of Schedule 5 to the 2004 Act (as set out at paragraph 5 above).

15. The notes concluded with a statement, headed “advice”, that if the recipient did not understand the notice or wished to know more about it, he or she should contact the local authority or seek independent advice.

16. The period of 28 days within which any appeal against the terms of the licence was required to be made expired on 3 April 2012. Four days earlier, on 30 March 2012, the appellant had written to the RPT in the following terms:

“I wish to appeal to the Residential Property Tribunal with regards to the duration of time that I have been awarded licences for by Nottingham City Council, namely for a period of two years rather than the usual five years. The two properties in question are 292 and 298 Alfreton Road, Nottingham.

Yours sincerely

Mr Peter Gill

Landlord”

17. On 3 April 2012 an RPT case officer wrote to the appellant thanking him for his letter of 30 March and enclosing “the relevant forms requested”. The forms provided were copies of the RPT’s standard application form relating to the licensing of HMOs.

18. The appellant waited until 30 April 2012 before completing one of the forms he had received, which related to the Property alone and made no mention of 298 Alfreton Road. The applicant provided all of the information required by the form. In section 9 he was asked whether there was any particular urgency for the determination of his application, in response to which he wrote “non-urgent.” Section 12 of the form required certain documents to be submitted and identified these in an appendix before pointing out that “failure to include the specified documents might make this application invalid.” In section 13 information concerning fees payable was provided and in section 14, under the heading “checklist” the appellant was advised to check that he had completed the form fully and was warned:

“The Tribunal will not process your application until this has been done and it has both a copy of the required documents and the fee.”

19. Having completed the application form supplied by the RPT, the appellant took no steps to post it until 2 May 2012 when he was due to depart with his wife on a short holiday. He took the application form with him to East Midlands Airport, apparently intending to post it on the way, but did not pass a post box. On arrival at the airport he was once again unable to find a post box and “in desperation” (as he subsequently explained) his wife gave the form to a stranger, waiting to collect a passenger at the airport, with a request that he be kind enough to post it on the appellant’s behalf.

20. It is not known what became of the application form handed to the convenient stranger at East Midlands Airport on 2 May but it was not until 2 July 2012, almost two months after returning from holiday, that the appellant first contacted the RPT to enquire whether any application had been received. The case officer informed him that no application had been received. In a letter to the case officer written on the same day the appellant recounted how the form had been entrusted to the stranger and went on:

“Until our conversation today I had not considered that he may not have posted it. However it could also have been lost in the post…. Until our conversation today I had no idea that my appeal went unreceived.”

21. Before deciding whether to admit the application, the RPT asked the respondent for its observations. The respondent pointed out that the application had not been received by the RPT within the 28 days allowed by paragraph 33(1) of Schedule 5 to the 2004 Act and objected to any extension of that deadline.

The RPT’s decision

22. The RPT directed that it would determine whether it had jurisdiction to determine any appeal against the terms of the HMO licence as a preliminary issue. It reached its decision of 22 October 2012 on the basis of the parties written representations.

23. Having found the facts which I have set out above the RPT posed two questions in paragraph 15 of its decision, namely:

“First, whether the Applicant made his appeal within the prescribed 28 day period; and, second, if that question is answered in the negative, whether the Tribunal should allow an appeal out of time pursuant to paragraph 33(3).”

24. In answer to its first question the RPT rejected the appellant’s submission that his letter of 30 March 2012 had itself been a sufficient appeal. The RPT found that it was impossible to treat the letter as an appeal for the purposes of the 2004 Act because of its very significant non-compliance with the requirements of regulation 6(1) of the 2011 Regulations. No reference was made to the power to relax or dispense with those requirements conferred by regulation 6(4) of the 2011 Regulations.

25. The RPT then addressed the second question and reminded itself that under paragraph 33(3) of Schedule 5 to the 2004 Act it could only allow an appeal to be made outside the 28 day period prescribed by paragraph 33(1) if it was satisfied that there was a good reason for the failure to appeal before the end of that period (and for any delays since then in applying for permission to appeal out of time). The RPT accepted the appellant’s account of what had happened at the airport but at paragraph 25 of its decision it gave the following explanation why it was not satisfied that he had shown any good reason for the failure to appeal within the prescribed period:

“All the evidence points to a lack of urgency on the part of the applicant throughout the process, for which the appellant offers no plausible explanation. He acknowledges (implicitly if not explicitly) that he read the information provided on the notice of decision and licence and that an appeal against the decision required some action on his part within 28 days. Yet he waited for 24 days before writing to the Tribunal. Having received the application form he waited for a similar period before completing, dating and signing the form. He then requested a total stranger at the airport to post the completed application form but he waited for another two months before contacting the Tribunal to check that the application form had indeed been received.”

26. Having decided both issues against the appellant, the RPT concluded that it did not have jurisdiction to determine an appeal against the terms on which the licence had been granted.

The issues in the appeal

27. Permission to appeal was granted by the Tribunal on 19 March 2013. Two issues were identified:

(1) Whether the RPT failed to have regard to regulation 6(4) of the 2011 Regulations which permits any of the requirements of regulation 6(1) to be dispensed with or relaxed.

(2) Whether in refusing to extend time for the making of the application the RPT had proper regard to the fact that the notes accompanying the HMO licence did not themselves make any reference to the 2011 Regulations or the form in which an appeal ought to have been made.

The first issue: the power to relax or dispense with the requirements of a valid application

28. Although the appellant has submitted copious written submissions since the grant of permission to appeal, having considered these I am satisfied that none of them is relevant to the limited issues on which permission has been granted. The substance of the appellant’s case on the relevant issues was contained in his original application for permission to appeal, and was that his letter of 30 March 2012, despite its deficiencies, was good enough to amount to a valid appeal. He states that at the time he wrote the letter the appellant had thought it was a valid appeal. He had been concerned to ensure that he complied with the time limit of 28 days and had “assumed that I would be given the opportunity at a later date to furnish the Tribunal with a more in depth account of the background to my appeal.” When he received the case officer’s letter of 3 April 2012, enclosing the standard application forms, he took this as “confirmation that my appeal had been received within the time limit.” Had his appeal been deficient in any material way he assumed that the case officer would have pointed that out to him.

29. Regulation 6(1) of the 2011 Regulations is a mandatory provision identifying the particulars which “must” be contained in any application to the RPT; nonetheless it was open to the RPT to dispense with or relax any of the requirements contained in Regulation 6(1), by exercising the discretionary power conferred by regulation 6(4). Before it could consider exercising that power it was first necessary for the RPT to decide in what respects the letter of 30 March 2012 was deficient. One relevant factor under paragraph (4)(b) is whether any prejudice would be caused by dispensing with or relaxing any of the requirements of a valid application; before that issue can be considered it is necessary to identify the extent of the indulgence required by an applicant.

30. Although the RPT recorded in paragraph 20 of its decision that it accepted the respondent’s submission that the letter was not a valid application because it failed to contain many of the particulars required by Regulation 6(1), it did not find it necessary to consider each of the requirements in a systematic way in order to determine whether or not they were satisfied by the appellant’s brief letter.

31. In this appeal the appellant has not sought to suggest that the letter of 30 March 2012 complied with all of the requirements of regulation 6(1), and he was clearly right not to do so. The letter included the appellant’s name and address, the name of the respondent (but not its address), the address of the Property (I reject the respondent’s suggestion that the missing postcode was essential), the appellant’s connection with the premises (he was described as “landlord”), his reasons for making the application (he was obviously dissatisfied with the duration of the licence) and the remedy he sought (implicitly he wanted the licence extended to “the usual five years”). The letter was also dated and (I presume) signed. The letter therefore satisfied many, but not all, of the requirements of regulation 6(1); it was deficient in the following respects:

(a) it did not state the respondent’s address;

(b) it did not state the name and address of “any interested person” (although since the applicant was the sole owner of the Property, there would appear not to have been any other interested person);

(d) it did not include a copy of the licence or the other supporting documents required by paragraph 16(2) of the Schedule to the 2011 Regulations.

32. Having identified the respects in which the letter of 30 March 2012 failed to satisfy the requirements of regulation 6(1), the next task for the RPT was to consider whether it would exercise its power under regulation 6(4) to dispense with or relax those requirements. The power to dispense or relax is a discretionary one but before it can be exercised the two conditions stipulated in paragraphs (4)(a) and (b) must be satisfied. There is no indication in its decision that the RPT addressed its mind to either of the conditions. In paragraph 20 it simply recorded its conclusion that because of the very significant non-compliance with the requirements of Regulation 6(1) “it is impossible to treat the applicant’s letter dated 30 March 2012 as an appeal.”

33. In a case such as this, where an applicant who is not professionally represented relies on a relatively informal written communication with the tribunal as satisfying the requirement that an appeal be lodged before the expiry of a time limit, any first-tier tribunal should give careful consideration to whether the conditions in Regulation 6(4) are satisfied. The particulars and documents relied on by the applicant must first be sufficient to establish that the tribunal has jurisdiction in relation to the matter; as sub-paragraph (a) puts it, they must be “sufficient to establish that the application is one which may be made to a tribunal.” The tribunal must then also be satisfied that no prejudice is likely to be caused to any party by the dispensation or relaxation of the relevant condition (hence the need to identify clearly the extent of the dispensation required). Only if an applicant has done enough to demonstrate that the first-tier tribunal has jurisdiction, and if no prejudice is likely to be caused to any party, can the tribunal then consider how to exercise its discretion. Although the discretion is a general one, in most cases the steps already taken by the applicant and the absence of prejudice are likely to point in favour of admitting the application and allowing it to proceed for substantive consideration. Some additional factor may nonetheless satisfy the tribunal that it would be consistent with its overriding objective of dealing fairly and justly with applications for it to refuse to exercise its power under regulation 6(4).

34. As the RPT either failed to consider the exercise of its discretion, or at least failed to demonstrate in its decision that it had done so, it falls to the Tribunal to consider afresh whether the requirements of regulation 6(4) are met.

35. I first consider whether I am satisfied that the particulars contained in the letter were “sufficient to establish that the application is one which may be made” to the RPT. I take that to require that the information contained in an application must not simply be that the applicant wishes to lodge an appeal or other form of application, but also that the intended application is of a type which the RPT has power to deal with. Because the communication is to the tribunal itself, whether the necessary information is sufficiently conveyed should be considered from the perspective of a recipient who is knowledgeable and reasonably well informed of the RPT’s various jurisdictions. I bear in mind also that the 2011 Regulations give general case management powers to an RPT which would enable it to direct that any missing information be supplied if it was necessary or desirable for the purpose of managing the case (see regulation 27). On the other hand, the requirement is that the necessary fact of jurisdiction must be “established”, which suggests some degree of confidence on the part of the recipient of the application.

36. In his letter of 30 March 2012 the appellant identified that the subject of his proposed appeal related to licences which he had been awarded by the respondent in relation to two identified properties. A knowledgeable reader of the letter would probably assume that the licences related to residential property from the fact that the appellant stated clearly that he wished to appeal to the RPT. There was little else in the letter to establish that the proposed application was one which “may be made” to the RPT. I initially favoured the view that the minimum information required to establish the existence of jurisdiction on the part of the RPT was lacking. My inclination was that something more was required before a reader of such an exiguous application could be reasonably satisfied that it was of a type falling within the jurisdiction of the RPT. On reflection, however, I am satisfied that the letter did just enough to satisfy paragraph (4)(a) of regulation 6. I have reached that conclusion substantially because of the reaction of the RPT case officer who received the letter, and who responded to it (without any further prompting or clarification) by sending to the appellant the form appropriate to an appeal against an HMO licensing decision. Although compliance with the minimum requirements of paragraph (4)(a) of regulation 6 must be judged objectively, it seems to me to be highly relevant that the information provided by the applicant was sufficient in practice to communicate to the case officer the nature of the appeal he wished to pursue, and therefore to establish that it was a matter over which the RPT had jurisdiction.

37. I am also satisfied that no prejudice would be caused to any party if the deficiencies in the letter of 30 March 2012 were overlooked. None has been suggested by the respondent. The respondent has pointed out the various respects in which the letter failed to comply with regulation 6(1) but they all seem to me either to have been insubstantial or to have been made good by the application form which finally reached the RPT on 4 July 2012. Both the respondent and the RPT were well aware of the respondent’s address. It has not been suggested that there were any interested persons and there was therefore no requirement to name them. Although the applicant failed to confirm in his letter that he believed the truth of the facts stated in it, as required of an application by regulation 6(1)(g), very few, if any, facts were stated in the letter other than the applicant’s desire to appeal. In any event, the mere extent of compliance with the requirements of regulation 6(1) is not relevant in itself to the conditions which must be satisfied before those requirements may be dispensed with or relaxed under regulation 6(4)(a) and (b). If some prejudice could be shown to have been caused by such non-compliance that would be a different matter.

38. Having decided that, in the circumstances, the conditions in regulation 6(4) of the 2011 Regulations were satisfied, I also think it right in this case to dispense with the unsatisfied requirements of regulation 6(1) and to accept the letter of 30 March 2012 as an appeal against the respondent’s decision to grant an HMO licence for the Property for a term limited to only 2 years. The very extensive written material submitted by the applicant in support of the appeal (though not relevant to it) identify that the substance of his complaint is that he has been treated differently by the respondent, as regards the duration of the licence granted to him, as a result of an unrelated dispute over HMO fees. There may turn out to be no merit in that suggestion, but it is certainly worthy of investigation.

39. Accordingly, although the conclusion reached by the RPT in paragraph 20 of its decision that the letter of 30 March 2012 was not a valid application under regulation 6(1) of the 2011 Regulations was correct, I am nonetheless satisfied that it is appropriate to treat the letter as a valid application for the purposes of bringing an appeal under paragraph 31 of Schedule 5 to the 2004 Act.

Issue 2: was the RPT’s refusal to extend time flawed?

40. This issue is now academic: it is no longer necessary for time to be extended as the letter of 30 March 2012, which I have found to be sufficient to initiate an appeal, was received by the RPT within time. Nonetheless, as the point on which the Tribunal gave permission to appeal may be of wider significance, I will deal with the issue briefly.

41. The power under paragraph 33(3) of Schedule 5 to the 2004 Act to extend time for the bringing of an appeal is a discretionary power. It is for the RPT to decide whether it is satisfied that there is a good reason for the failure to appeal within the time allowed and for any delay since the expiry of that time in applying for permission to appeal out of time. It is not for this Tribunal to interfere with a lawful decision of the RPT to refuse to extend time. Only if a decision is one which it was not open to the RPT to make or which failed to have regard to relevant consideration or was so far outside the legitimate boundaries of its discretion as to be unlawful it is open to this Tribunal to interfere and substitute its own view.

42. The appellant has criticised both the respondent and the RPT in his grounds of appeal for supplying him with insufficient information to enable him to understand what material he was required to submit to the RPT, and within what timeframe, to enable him to satisfy the requirements of the 2011 Regulations. He points out that, as far as he was concerned, his letter of 30 March 2012 had already satisfied the only condition that the respondent had notified to him, namely the requirement that an appeal be made within 28 days of the date of the notice.

43. The appellant submits that it is the respondent’s duty to ensure that applicants are made aware of the appeal process under the 2004 Act and that a failure of the respondent to do so is a breach of the appellant’s right under Article 6 of the European Convention on Human Rights. In the appellant’s submission it is the responsibility of local housing authorities to inform applicants for HMO licences of the appropriate appeal procedure which they ought to follow if dissatisfied with the local authority’s decision.

44. The appellant himself candidly accepted that he had not attended to his application as he ought to have done once he returned from his short holiday on 7 May. It beggars belief that, having taken so cavalier an approach to the delivery of the completed appeal form, the appellant did nothing for almost two months to establish whether it had been received by the RPT. Having received nothing acknowledging the receipt of his appeal the appellant had no good reason for not making urgent enquiries of the RPT to establish whether it had arrived safely. I do not think his professed belief that he had met the time limit by his letter of 30 March provides any mitigation for the extraordinarily casual approach which the appellant took to his appeal thereafter. He himself acknowledges in his grounds of appeal that he was wrong to wait so long before making enquiries with the RPT. That acknowledgement, in my judgment, would be fatal to the appellant's appeal against the RPT's refusal to extend time.

45. In my judgment the respondent did all that was reasonably required of it to explain to the applicant his right of appeal and the time within which it was necessary for him to exercise it. No intelligent person (as the appellant clearly is) reading the decision notice, the licence or the accompanying notes could have failed to appreciate that any appeal had to be lodged within 28 days. Nor could they fail to appreciate that if they were in any doubt of the procedure to be followed for making such an appeal there were several sources which could be consulted, including the RPT and the respondent itself, all of which were clearly identified. The appellant’s complaint that his right to a fair determination was put at risk and that the respondent was at fault for the inadequacies of his appeal is unsustainable.

46. The RPT was, in my judgment, quite entitled to come to the conclusion which it recorded in paragraph 26 of its decision that it was not satisfied that there was a good reason for the delay between the expiry of the 28 day appeal period on 3 April and the receipt by the RPT of a completed appeal form, compliant with regulation 6, on 4 July 2012.

47. In those circumstances I am satisfied that the appeal on the second issue should be dismissed.

Conclusion

48. As I have found in favour of the appellant on the first issue, the dismissal of the appeal on the second issue is immaterial. The decision of the RPT on the preliminary issue of jurisdiction is set aside and the substantive appeal is remitted to the First-tier Tribunal (Property Chamber) for determination. The appellant must apply to the First-tier Tribunal for further directions for the determination of the appeal by not later than 20 June 2014.

Dated: 8 May 2014

Martin Rodger QC

Deputy President

United Kingdom Upper Tribunal (Lands Chamber)

BETWEEN PETER GILL Appellant

DECISION

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You are here: BAILII >> Databases >> United Kingdom Upper Tribunal (Lands Chamber) >> Gill v Nottingham City Council [2014] UKUT 195 (LC) (08 May 2014) URL: http://www.bailii.org/uk/cases/UKUT/LC/2014/195.html Cite as: [2014] UKUT 195 (LC)