Does the Covid-19 lockdown mean I can delay starting my appeal or application to the Tribunal?

Monday, May 4th, 2020 - By Robin Stewart, Solicitor, Anthony Gold Solicitors

Robin Stewart, Solicitor, Anthony Gold Solicitors

The Covid-19 pandemic has affected every part of the justice system, with most hearings being conducted by telephone or videoconference where they are not postponed. The Property Chamber of the First-tier Tribunal is in some ways in a better position than other courts and tribunals since most of its work is not truly urgent and can be delayed. The Tribunal will move at a slower pace for the time being, and in London it has effectively stalled completely for non-urgent work until the end of May (read here).

It is still possible to start new cases in the Property Chamber, although a different procedure from usual is in place. As set out in a temporary Practice Direction (read here) and in more detailed Guidance for Users during COVID-19 Pandemic (read here), new cases should now be started by emailing the forms to the Tribunal, although paper forms may be used where people are unable to use email.

The Property Chamber is only able to accept fees by cheque or postal order. The Tribunal’s guidance states that fees will be accepted if they are posted to reach the Tribunal office within 28 days of the application or appeal being made but, as Mark Loveday of Tanfield Chambers points out here (click on footnote 56), without an amendment to the Fees Order, an application submitted without a fee is technically invalid, so it would still be safest to send the fee on time with a copy of the application [*see footnote].

Urgent cases must be marked as such and the Tribunal address them as a priority.

The decision to postpone all Property Chamber cases in London from 19 March (before the lockdown came into effect), demonstrates that judges in this jurisdiction were quick to comprehend the scale of the current crisis, even as other courts tried to carry on. There is no doubt that judges in the Property Chamber will be sympathetic where the parties to cases have been affected by the crisis.

However, this does not mean that starting new cases can or should be delayed until the crisis has passed. None of these deadlines have been extended.

Deadlines to start new applications and appeals

There are various different types of deadlines to start new cases, an each has its considerations.

Fixed deadlines: The deadlines for a tenant to make an application for a Rent Repayment Order is fixed. Section 41(1) of the Housing and Planning Act 2016 permits a tenant to make an application only if the offence committed by the landlord was committed “in the period of 12 months ending with the day on which the application is made”. If the application is made later than this, it will be time barred, and the Tribunal has no discretionary power to extend this.

Procedure rules deadline: In other types of case, such as appeals against financial penalties under Schedule 13A Housing Act 2004, the legislation does not set out any particular time limit to start an appeal. In such cases the default deadline in the Property Chamber’s procedure rules will apply (as confirmed in Pearson v City of Bradford Metropolitan District Council [2019] UKUT 291 (LC)(read here)). That is, the appeal must be started within 28 days of the day after the decision under appeal was sent to person bringing the appeal. However, the Tribunal has discretion to extend the deadline and allow a late appeal to proceed. The rules do not set out any particular criteria which the Tribunal must take into account and in Pearson this power was described as an “unfettered discretion”.

Extendable deadlines set out in legislation: The final type of deadlines is those which are set out in primary legislation, but which give the Tribunal power to extend time in certain circumstances. The framework for appeals relating to property licensing issues is set out at Schedule 5 to the Housing Act 2004. Appeals against decisions to grant or refuse licences must be made within 28 days of the decision. The Tribunal may hear an appeal which is filed late if it is satisfied that there is a good reason for the failure to appeal before the deadline and for any delay since then in applying for permission to appeal out of time.

The difference between the second and third group is a subtle one and one which usually would not make any difference. Where the Tribunal has an ‘unfettered discretion’ it is likely to start by asking whether or not there is a good reason for the delay in bringing the appeal. However, in the third category of cases the Tribunal is prevented from allowing appeals to proceed simply because it sympathises with the applicant – there must be a good reason for the delay. This also means that the Tribunal cannot apply a blanket extension of time for the third category of cases.

Landlords should also be conscious that delaying an appeal can also have other knock on effects. For example, an improvement notice if appealed, it does not become operative until the appeal is concluded. If not appealed, the notice is final and conclusive as to matters which could have been raised on an appeal, meaning that the landlord will have missed their opportunity to dispute the local authorities’ findings and instructions.

I have addressed only the types of case most relevant to property licensing, but anyone considering bringing an application to the First-tier Tribunal should consider what type of deadline applies to them.

Late applications and appeals

For the reasons explained above, it will be best to start applications on time whenever possible. When a late application must be made, it should be filed with the Tribunal as soon as possible, and it will be necessary to give an explanation for the reasons for the delay. Here, some detail will be required. It will not be sufficient to simply blame ‘the pandemic’ for the delay.

In Haziri v London Borough of Havering [2019] UKUT 0330 (LC)(read here) the Upper Tribunal rejected a challenge to the Property Chamber’s refusal to extend time to bring an appeal against a financial penalty. The delay in that case was only 10 days, not a very long delay, but one which was judged to be significant in the context of a 28-day deadline. The explanation given for the delay was not a satisfying one, the Upper Tribunal commenting: “Unsubstantiated and general references to “a number of compulsions” and “pressing circumstances beyond their control” were wholly inadequate for the purpose of providing an explanation.

If an appeal is to be filed late because of the pandemic, the applicant will need to give a clear explanation of what specifically prevented the application being made on time. Some reasons for delay are clearly good ones, but the explanation still needs to be given.

Practical steps to take

Whenever possible an application should be made on time. The most important thing will be to file the correct form with all of the correct details, and to pay the fee within 28 days of filing the appeal.

Detailed grounds of appeal can be helpful tactically and to narrow the issues, but these are not mandatory and if you are running out of time it will be better to file an appeal with only lightly sketched grounds rather than be late. The detailed argument can be added later in an expanded statement of reasons for the appeal.

Applicants who are not confident with technology should ask friends and relatives for assistance to file applications by email if possible. A typed signature on an application form will be acceptable, so the lack of a printer and scanner should not prevent people from making applications.

If an application is going to be unavoidably late, applicants should keep records and evidence of what caused the delay. They should then file the appeal promptly as soon as they can. The Tribunal is likely to be sympathetic, but an extension should not be taken for granted.

Where the Tribunal cannot extend time, applicants should try to get their papers ready as early as possible, and if they do miss a deadline it might not hurt to file the application as soon as possible anyway. The applicant might be mistaken about when the deadline actually falls, and it is always possible that the Tribunal will decide that it does have a discretionary power to extend time even where the legislation suggests otherwise.

Addendum: with effect from 29 April 2020, a person making an application or appeal to the Tribunal which requires a fee to be paid can now pay the application fee by on-line banking [read here]. The date that the application or appeal is lodged with the Tribunal will be regarded as the relevant date of receipt for statutory purposes. Applicants then have 14 days to pay the application fee.

Following receipt of the application or appeal and if the applicant has indicated that they wish to pay the fee by on-line banking, the office will email the applicant with the details needed for an online payment to be made.

The author of this blog, Robin Stewart, is a Solicitor in the Housing team at Anthony Gold Solicitors. His email is ros@anthonygold.co.uk.

Please note that the views and opinions expressed in these blogs are those of the author and do not necessarily represent the views of London Property Licensing. These blogs are designed to stimulate discussion and debate within the property industry. This article does not represent legal advice and should not be treated as such.

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