Moh & Ors v Rimal Properties Ltd  (2024) UKUT 324 (LC)

An appeal from two rent repayment order applications, in both of which the FTT had decided it had no jurisdiction to make a rent repayment order because the applications were made outside the statutory period.

Section 41(2)(b) of the Housing and Planning 2016 says:

“(2) A tenant may apply for a rent repayment order only if:

…(b) the offence was committed in the period of 12 months ending with the day on which the application is made.”

In one of these case (both about licensing)

 On 4 May 2022 the respondent applied for an HMO licence at 13:44.

On 4 May 2023 the appellants made their application to the FTT at 15:36.

It is a defence to the property being unlicenced that an application for a licence has been made, from the point of the application. The FTT had found that the defence arose on the first moment of the day on which the application was made, so from the start of 4 May 2022, and the 12 months ending on the day the application was made began at the start of 5 May 2023, so the application was out of time.

In the other case, the landlord had made an application for a licence on 16 November 2022 but was to able to pay the fee because the council’s payment site was down. The landlord emailed the council that day and received a response saying they would be told when the payment site was back up. The fee was paid in December 2022. The RRO application was made on 15 November 2023.

The FTT held that although the licence application was not ‘duly made’ on 16 November 2022 (as that required the fee to be paid), the landlord had the defence of reasonable excuse from 16 November 2022, so the last day of the offence being committed was 15 November 2022. The application on 15 November 2023 was therefore out of time.

The tenants appealed, in one case with pro bono representation.

Two issues arose.

i) Was an offence committed on the day that a licnece was applied for?

ii) When did the the 12 months ending on the day the RRO application was made, end?

On issue i), the tenants argued that the law did not recognise a fraction of a day. The UT agreed, not least as the statute specified a date, not date and time.

However, in calculating the 12 months, the UT found that the  rule in Dodds v Walker (1981) 1 WLR 1027 did not apply here – that rule says that in calculating a month or number of months after an event, one simply goes to

the day of that month that bears the same number as the day of the earlier month on which the notice was given.

In this case it would encompass both 4 May 2022 and 4 May 2023.

That rule applied to ‘months after’, or would if expressed as ‘months before’ but the statute here provided for a specific final date, ‘ending on the date of the application’.

A period of 12 months ending on a particular date is not the same – as a matter of ordinary language – as the period of 12 months before that date. The language implies that the start and end date are each within the period. It therefore starts not on 4 May 2022, whose beginning is more than 12 months away from any point during 4 May 2023, but at the first moment of 5 May 2022.

On issue ii)  the UT again accepted that the common law did not recognise fractions of a day, against an argument advanced by the unrepresented tenants that the offence was committed for at least a part of the day. The question was whether the defence applied to the whole of the day the licence application had been made, or whether it arose on from the following day.

The UT found that there was no authority on the point, and cases on the Limitation Act 1980 were distinct.

I would add that the period specified in section 41(2) of the 2016 Act is not the same kind of  limitation period as those imposed by the Limitation Act 1980. As it was said in Segal, a limitation period derogates from the ordinary rights of claimants. The provision in section 41(2)(b) does no such thing. Instead it is part of a series of provisions that create a time-limited right for tenants to apply for a rent repayment order. That is not a right that they would have at all absent this suite of provisions; nothing is taken away from them. Instead, provisions aimed at the penalisation and deterrence of housing offences give the tenants a right to apply for a rent repayment order for a limited period, rather than giving them an open-ended right.

The UT went on the hold that the defence applied to the whole day on which the application was made.

If the cases on time limits are not authority for the answer to the present question, are they of assistance in terms of policy? I do not think so. The facilitation of applications for rent repayment orders is not an overriding consideration in determining this question. Far more important is the fact that this is a matter of criminal liability. Faced with a choice between deciding that a landlord is committing an offence throughout the day on which he applies for a licence, and deciding that he has a defence throughout the day on which he applies for a licence, I have no hesitation in choosing the latter. Put another way, because I have to disregard fractions of a day I prefer to say that the landlord has a defence in the morning because he applied for a licence later in the day, than to say that he is committing an offence all afternoon and evening even though he has already applied for a licence.

I therefore agree with the FTT which said: “If there is any ambiguity, we should lean in favour of the potential offender” (paragraph 62 of the Jerome House decision, paragraph 54 of the Reighton Road decision).

Both appeals dismissed.

Comment

A usual rule for civil litigation is not to leave things to the last day, not least because of the potential for confusion about when the last day is. It is, to say the least, a high risk strategy.

Now, while one may take a different view to the Upper Tribunal as to when the last day should be, that is no longer of any relevance. The 12 months is from the last day that the offence was committed, which, at least in licensing cases, is the day before the relevant licence application is made.