Robertson v Webb, Re Honley Road (LANDLORD & TENANT – rent determination) (2018) UKUT 235 (LC)

Just a brief note on this – where a landlord serves a notice of proposed increased rent under section 13 Housing Act 1988, the tenant can apply for a determination of the rent to be charged by the First Tier Tribunal. However, s.13(4) provides

Where a notice is served under subsection (2) above, a new rent specified in the notice shall take effect as mentioned in the notice unless, before the beginning of the new period specified in the notice,—

(a) the tenant by an application in the prescribed form refers the notice to the appropriate tribunal;

In this case, Mr R’s application to the Tribunal was after the date on which the new rent took effect under the notice. Mr R claimed not to have received the notice as he had been very ill and had house minders, who had not brought the notice to his attention.

The FTT found it did not have jurisdiction, and the Upper Tribunal refused an appeal. A judicial review of that decision was granted, apparently on the basis that

However, in this care there is a reasonable explanation for the delay and it is arguable that it is unreasonable and unfair not to allow the Claimant to argue the merits of the case before the Property Chamber

The appeal was remitted to the Upper Tribunal.

The UT was having none of it.

On these facts I have reached the firm conclusion that the Property Chamber lacked jurisdiction because of the clear language used in the 1988 Act which does not allow for any different outcome and does not provide for any discretionary enlargement of the time limit.  I am reinforced in that view by the approach taken in Lester by the Court of Appeal. Because this is a matter going to the statutory jurisdiction of the FTT, the absolute nature of the time limit in section 13(4) cannot be disregarded. It is 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 against the FTT’s decision that it had no jurisdiction to consider the rent. I reach the same conclusion and should therefore refuse permission to appeal.

The only remaining issue was whether art 6.1 of the ECHR should mean a more flexible interpretation of the time limits, in view of Pomiechowski v District Court of Legnica, Poland (2012) 1 WLR 1604. The UT found this did not help Mr R.

First, the statutory imposition of a time limit for the service of a notice, in this instance by a tenant, is commonly found in legislation dealing with private law, contractual relationships between individuals and entities, such as the letting of residential, agricultural and business premises. Non-compliance with a time limit often affects the respective rights of landlord and tenant. One party may gain and become entitled to exercise and enforce a right or benefit, whereas another may become subject to a liability or disbenefit which they are obliged to discharge or suffer. There are many examples in property legislation of timetabled machinery of the present kind which determines whether the alteration of a legal relationship (or its terms) may or may not take place, with or without a hearing before a court or tribunal. One objective of such machinery is to achieve legal certainty for the parties to a contract. The introduction of a “Pomiechowski discretion” into legislation of this type would substantially undermine that certainty, even allowing for the very narrow and highly exceptional nature of the discretion (see above).That is a powerful consideration.

Second, action of the kind taken in the present case by the landlord, namely to increase rent, is nowhere near as serious as deprivation of liberty, or removal from the UK, or permanent exclusion from a profession.  It is a normal incident of a landlord and tenant relationship that the rent may be increased from time to time in accordance with the legislation.  Sometimes that may give rise to issues of affordability for a current tenant.  But even if he or she finds it necessary to move out because they can no longer afford the accommodation, it does not follow that they will become homeless or that less expensive alternatives will be unsuitable or even less suitable.

Third, the time limits laid down by the 1988 Act for the tenant to take action are not onerous.  Fourth, the legislation requires forms to be used which make it plain what action needs to be taken, in particular by the tenant (see for example the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 SI 2015 No 620, as amended).  Fifth, that action is relatively straightforward, namely the sending by the tenant of a notice in form 5, to the FTT (contrast the more intensive action required by extradition legislation for persons in custody the subject of Pomiechowski).  Sixth, in the interests of legal certainty, the legislation not only prescribes a time limit for the tenant’s action but also the consequences of a failure to take such action, namely the substitution of the increased rent specified in the landlord’s notice from the date given in that notice.

In my judgment neither the legislation in the present case, nor the considerations involved, are remotely analogous to the statutory regimes addressed in Pomiechowski and Adesina. Accordingly, I am not persuaded that it is arguable that a “Pomiechowski discretion” should be read into section 13(4) and 14(1). For these reasons, the application for permission to appeal must be refused.

So, the s.13 time limits are strict. Outside those limits, the FTT has no jurisdiction to consider an application for determination.