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.
Another example of the Rakusen fallout as we all try to quickly change respondent to keep a case alive
Indeed. This was pre Rakusen, but has obvious implications for cases caught in that position.
So might be prudent (as well as making application early as you conclude) to (in situations of respondent ambiguity) to be somewhat liberal with naming multiple possible respondents (and clarify/drop some later at pre-meeting/hearing)?
Within reason, ie, a prima facie reason to include them as a respondent – so as not to face rule 13 costs applications for unreasonable conduct.
But do you really think rule 13 costs would be granted where it is clear that the various possible respondents are deliberately playing silly buggers with identities? I’ve just got back (10pm) from executing 2 entry warrants in Kilburn where multiple HMO tenants have been given tenancy agreements with a range of different company names as landlords, so that nobody can really tell who they are dealing with. Naming a respondent in such cases is like pinning the tail on the donkey. I cant see even the most landlord friendly FTT judge finding that unreasonable
Indeed – if there is an apparent reason to include them as possible landlord, can’t see any rule 13 issues. Just suggesting you couldn’t just add in anyone connected to the property without some reason.
And there’s the rub Giles, making a connect between the various parties that have some basis in fact and reasonable logic. Last night we went out and spoke to around 9 different tenants in two flats, out of a possible 14 occupants, not all there at the time. Each had a different shonky company named as landlord. 15 seperate mobile phone numbers and rent collections through cash in a carrier bag, without receipts via an Uber driver.
The NRLA carping on about a few rotten apples but business as usual for so many. Legal processes are not geared up for the shite that goes on out there for so many
Thanks for this Giles. So with respect to the 12 month statutory period, if a tenant of an unlicensed HMO wanted to apply for an RRO, against a former landlord, but left the property on say 27 February 2020 they would have to make their application on or before 27 February 2021 or lose the right to apply. Is that correct?
Well, 26 Feb, I think. But yes, 12 months has always been the rule, this is not new.
Hi Giles,
Regarding the 12 month limit do you think there is any chance this will be increased? As seems not overly long. Also if it was increased do you it would only apply to offences after the said increase or before also? I may be wrong but would think only after as the 12 month limit is even in legislation so would not even be retrospective but retroactive?
The Renters (Reform) Bill has an increase to two years. Not retrospective, I think.
I apologize Giles. What I meant was the original charge/offence. Lets say x landlord did (or failed to do in some of the offences) in x year but it was over 12 months ago so (obviously) is out the question current but what if say it was later increased so now was within the specified time. Would this apply to only offences that were done after that change or would it apply to even things before that change? I suggest 12 months to very little time.
Oh, that isn’t being changed. But I don’t see that a 12 month period to bring an application is unduly short.
Thanks for getting back to me Giles. You say that it not unduly short – however in some of the offences it is not imminently obvious of anything untoward. For instance take continuing to use let a house when it has not been licence or has a prohibition order/said landlord is subject to a banning order. How is one realistically going to know those within 12 months? Far be it for me to also put a wannabe lawyer cap on but one could argue as all the grounds unless mistaken are offences there should be no time limit as unlike other countries the uk does not have a statute of imitations of offences. I would think far from being unclear the legislation does state categorically 1 year I would think any any increase would be prospective rather than retrospective in regard to the offence in question as retrospective changes are always (I think anyway) are enact things that were intended at the time of said thing. But would be interested in your take on that question.
Licences can be checked easily.
Prohibition order would be served on the property.
Banning order, I’ll grant you, may not be so easily established. Should be public register.
And it is within 12 months of the offence being committed, so where an ongoing offence, within 12 months of the last day.
There is no proposal to extend the ‘within 12 months of the offence’ period, only the rent period which can be applied for.