Gurusinghe & Ors v Drumlin Ltd (HOUSING – RENT REPAYMENT ORDER – Procedure) (2021) UKUT 268 (LC)
Just a quick note on this one – an appeal to the Upper Tribunal on an FTT decision on an application to add a new respondent to an RRO application as the proper landlord.
The tenants had made an RRO application for an unlicensed property. The named respondents had objected in reply that they were not the landlord. The application had been made in April 2020 and the relevant period claimed for was 10 September 2018 to 10 September 2019. In November 2020, the respondents applied to strike out the application on the basis that they weren’t the landlord and the applicants had been told this and who was the landlord. On 1 December 2020, the tenants, assisted by Justice for Tenants, applied to have the landlord added as a respondent.
The FTT refused the application on the basis that it had no jurisdiction to do so.
The 2016 Act imposed a strict limitation period of 12 months for any application for a rent repayment order. The Act made no provision for extending the 12 month deadline. The FTT agreed with the respondents’ argument that there was a distinction between a statutory limitation period, where the FTT had no power to extend time, and a procedural limitation period. T It also agreed with the reasoning of the FTT in Re 24 Eastfield Rd when it had determined that the time limit in the 2016 Act was jurisdictional and therefore could not be extended. The judge in that decision had also made it clear that the FTT’s general power to regulate its own procedure was expressly subject to the provisions of the Tribunals, Courts and Enforcement Act 2007 (‘the 2007 Act’) and any other enactment. It was therefore limited by s. 41 (2) (b) of the 2016 Act, which only afforded the FTT the jurisdiction to make a rent repayment order if “the offence was committed in the period of 12 months ending with the day on which the application is made.”
The tenants appealed. The Upper Tribunal dismissed the appeal.
S. 41 (2) (b) of the 2016 Act prescribes a 12 months’ limitation period for applications for rent repayments orders by providing that a tenant may apply for a rent repayment order only if the relevant offence “was committed in the period of 12 months ending with the day on which the application was made”. The FTT has no power to extend that limitation period. It matters not that the limitation period is prescribed by the 2016 Act rather than by the 1980 Act; it is still a limitation period prescribed by primary legislation, in the form of a statute, which cannot be extended by the FTT because there is no statutory power to do so. Nor is there any statutory provision, or power conferred by any procedural rule created by secondary legislation, which would enable the FTT effectively to override that limitation period by substituting the correct respondent landlord to proceedings commenced within time but against the wrong respondent.
Section 35 Limitation Act 1980 powers did not extend to the First Tier Tribunal (although it does to the Upper Tribunal). The FTT was wholly correct that it had no power to allow the substitution of a party to an RRO application after the end of the statutory 12 month period for bringing an application. The UT could not, of itself, allow an appeal reversing a decision that the FTT had no jurisdiction to make, there was no error of law.
So, any substitution of parties in an RRO application must be done within the 12 months limitation. Where the landlord’s identity is (deliberately or otherwise( unlcear or obscured, this would be a very good reason not to leave issuing an application until near the end of the 12 months.