Who needs rules?

Part 2, Housing and Planning Act 2016 (banning orders, rogue landlord database etc) came into force in April 2018. In very general terms, it created various new jurisdictions for the First Tier Tribunal (Property Chamber), e.g. a local authority applied to the FTT (PC) for a banning order; challenges to fixed penalty notices go to the FTT etc.

On 31 August 2018 (so, several months after the main provisions came into force), the FTT published new application forms for these new applications. They’re at the bottom of this page here.

Now, I’m not one to pass up a helpful form. But it got me thinking – what else is the FTT behind on? And then it struck me – the FTT(PC) Procedure Rules haven’t been updated to refer to these new jurisdictions under the 2016 Act and so they don’t apply. That leads to some pretty worrying consequences.

(a) The absence of procedural rules obviously isn’t good, but the FTT (as with any inferior tribunal or court) always has sufficient inherent jurisdiction to regulate its own proceedings (see Mean Fidler v Islington ACQ/29/2001) then it can presumably work around that for a bit by issuing directions in the usual way.

(b) There is no time limit for appealing! The time limit is in the FTT rules, not in the Tribunals, Courts and Enforcement Act 2007 (nor is there – as far as I can tell – a time limit in the 2016 Act for appealing from the FTT to the UT). Isn’t that a problem?

(c) It also means that the forms published by HMCTS are not mandatory; they are not prescribed by the FTT rules nor by a Practice Direction (which FTT r.26 can do, ‘tho as r.26 doesn’t apply anyway). So I don’t have to use them if I don’t want to.

Isn’t this all just a bit of a mess? It isn’t as big of a mess as, say, the legal nonsense that is shared ownership or the byzantine complexities of leasehold enfranchisement valuation. But it is still a mess.

 

About J

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.
Posted in Housing law - All.

5 Comments

  1. Pingback: Landlord Law Blog Roundup from 3rd September

  2. Dear J, Sorry but I think you are mistaken. I’m sure Siobhan McGrath, the President of the Property Chamber, would have been happy to correspond with you about this if you had wanted to ask before publishing. In any event, her response is as follows:
    1. The procedural rules were updated last year to include cases under the 2016 Act – see the amended definition of “residential property case” and SI 2017/723 rr 3 and 4.
    2. As to appeals, the 2016 Act does include time limits for all types of appeal including financial penalties and appeals in respect of rogue landlord database decisions. The Housing Act 2004 does not include a time limit for appeals in financial penalty cases. The procedural rules make provision in rule 27 where no time limit for starting proceedings is prescribed by or under another enactment. The time limit in those cases is 28 days from the date on which not of the decision was given. This is of course subject to the Tribunal’s power to extend time.
    3. The appeal/application forms are not mandatory – this allows flexibility to change content and ensure that the forms are up to date. This has not caused any difficulty. As far as I am aware the forms have been routinely used in applications to date.

  3. Ah ha! Thanks Nik. I was misled by Westlaw which hasn’t updated the FTT rules to reflect these amendments. So that is the answer to questions 1 and 2. Much appreciated.

    And thanks for confirming it was a conscious choice not to prescribe the form.

  4. Just to be clear on this , if I may, regarding point 2 above , there is a 28 day appeal limit for final civil penalties from the date the decision or notice is served ?

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