Appeals against the imposition of financial penalties under Housing Act 2004: extensions of time when appeals are submitted late

Thursday, June 29th, 2023 - By Mathew McDermott, Barrister at 42 Bedford Row

The Upper Tribunal (“UT”) has allowed an appeal brought by a landlord against a decision of the First-tier Tribunal (Property Chamber) (“FTT”) that had refused him an extension of time in which to bring a challenge against a council’s imposition of a £13,250 penalty.

In Kazi v. Bradford MDC [2023] UKUT 128 (LC), the freeholder of a house in multiple occupation in Bradford, Mr Kazi, was issued by Bradford MDC with a final notice of a penalty against him in the sum of £13,250 alleging that he was a person managing a house and that he had failed to comply in a number of respects with The Licensing and Management of Houses in Multiple Occupation (Additional Provisions) (England) Regulations 2007.

He had a right to appeal to the FTT against the penalty or its amount, but he had 28 days after Bradford MDC sent him the notice to do so. The notice itself was dated 23 June 2022 and it appears to have come to Mr Kazi’s attention on 27 June 2022.

Mr Kazi, who was 73-years-old, did not submit his appeal to the FTT until 19 August 2022.

By way of a covering letter to the FTT he acknowledged he was out of time and asked for an extension. He asserted that he was ill in the middle of July, tested positive for Covid on 7 August and had not been well enough to make the application earlier.

In refusing this request, Mr Kazi’s appeal against the imposition of the penalty was struck out. Whilst noting that it had the power to extend time if satisfied that there was a good reason for the delay the reasoning was brief:

The applicant provided written representations in relation to the lateness of the appeal which was received by the Tribunal on 22 August 2022. The Tribunal has considered those representations but concludes that the Applicant has failed to provide a satisfactory explanation as to why he was unable to follow the guidance issued and make his appeal within the time allowed. The final notice is dated 23 June 2022 and the Tribunal did not receive the appeal until 22 August 2022, almost two months later, which is a significant delay. The reasons given are insufficient to explain or justify a delay of this magnitude.

Mr Kazi’s appeal against this refusal was determined by Judge Elizabeth Cooke under the UT’s written representations procedure; her written decision is short.

It is fair to say the Judge Cooke was not impressed by the paucity of reasons given for refusing to allow the appeal out of time and, in particular, a general failure by the FTT to grapple with the reasons behind the delay.

Amongst other things, Judge Cooke noted that the FTT failed to engage with the fact that Mr Kazi was elderly and, within around two weeks of receiving the penalty notice, he contracted Covid. Unlike the FTT – who described the delay as ‘significant‘ along with a reference to ‘a delay of this magnitude‘ – Judge Cooke said the delay was less than a month and was commensurate with the length of time for which Mr Kazi said he was ill.

Ultimately, the appeal was allowed because of a failure to take into account a relevant consideration and a failure to explain why the reasons advanced by Mr Kazi were inadequate.

At first glance, a delay of just less than four weeks when the initial time limit in which the appeal was to be brought was itself four weeks may seem like a substantial delay requiring a persuasive explanation. In Haziri v. London Borough of Havering [2019] UKUT 330 (LC) Martin Rodger QC, Deputy President of the UT, observed that a delay of ten days in doing something which is required to be done in 28 days is capable of being regarded as significant – but that ultimately it is a matter of assessment for the FTT and, of course, each case rests on its own facts.

However, the FTT’s discretion to permit such an extension is broad and clearly Judge Cooke was of the view that the FTT simply failed to properly wrestle with the reasons behind that delay – rendering it somewhat unfair to class the delay as ‘significant‘.

Moreover, it is hard to disagree with Judge Cooke’s conclusion that the reasons given by the FTT for refusing the extension of time were inadequate and, generally speaking, poor. She also observed that the FTT may have been concerned with the lack of medical evidence, but if that was a problem it failed to say so.

Fundamentally, a key lesson from this appeal is that the FTT ought as a minimum to be identifying the reasons for the delay, assessing those reasons and then giving an explanation as to whether or not they are viewed as adequate.

The author of this blog, Mathew McDermott, is a barrister at 42 Bedford Row in London who specialises in landlord and tenant disputes. He can be contacted at civilclerks@42br.com.

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