UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2013] UKUT 492 (LC)

LT Case Number: HA/4/2013

 

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

 

HOUSING – ENFORCEMENT ACTION – improvement notice – request for extension of time to appeal – criteria to be applied – para. 14(3), Sch. 1, Housing Act 2004 – proof of service by post - s. 233, Local Government Act 1972 – s. 7, Interpretation Act 1978 – appeal allowed

 

 

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE RESIDENTIAL

PROPERTY TRIBUNAL FOR THE NORTHERN RENT ASSESSMENT PANEL

 

 

 

BETWEEN NOTTINGHAM CITY COUNCIL Appellant

 

and

 

MICHAEL TYAS Respondent

 

 

Re: 160 Lenton Boulevard,

Nottingham

NG7 2BZ

 

 

 

Martin Rodger QC, Deputy President

 

 

Decision on written representations

 

 

 

 

 

No cases are referred to in this decision

DECISION

Introduction

1.           What test should a First-tier Tribunal apply when it is asked to extend the time for bringing an appeal against an improvement notice given by a local housing authority under Part I of the Housing Act 2004?

2.           That question arises in this appeal by Nottingham City Council against a decision of the Residential Property Tribunal for the Midland Rent Assessment Panel (“the RPT”) given on 9 November 2012, by which it extended time for the bringing of an appeal by Mr Michael Tyas against an improvement notice served by the Council on 9 December 2011.  It was Mr Tyas’ case that he had not received the improvement notice at the time it was given and had only became aware of it in June 2012.

3.           In paragraph 5 of its decision the RPT said this:

“In deciding whether to grant an extension of time the Tribunal has a wide discretion and must have regard to the whole history of the matter, the conduct of the parties, the nature of the proceedings, the needs of the Applicant, and the effect that granting an extension would have on other persons involved.  However, it is up to the person seeking the extension to satisfy the Tribunal that in all the circumstances it is in the interests of justice to grant the extension of time.”

4.           Applying that broadly framed test the RPT exercised its discretion in Mr Tyas’ favour.  The main issue in this appeal is whether the RPT asked itself the right question.

5.           The appeal is brought with the permission of the Tribunal, which I granted on 29 July 2013.  Mr Tyas has elected not to respond to the appeal and I have dealt with it as a review on the basis of written representations.

The facts

6.           The following facts are taken from the RPT’s decision and correspondence between the parties and form the basis of my consideration of the appeal.

7.           Mr Tyas is the owner of a house, which he lets to tenants, at 160 Lenton Boulevard in Nottingham (“the Premises”). 

8.           Following an inspection in November 2011 the Council formed the view that it was appropriate to require Mr Tyas to carry out certain improvements to the Premises.  The Council was satisfied that hazards existed which were within category 2 of the system of assessment of housing standards prescribed by the Housing Act 2004 (“the Act).  Category 2 is the less serious category of hazard in relation to which section 12 of the Act gives a local housing authority power to serve an improvement notice.

9.           On 9 December 2011 an officer of the Council sent an improvement notice by pre-paid first class post to the last known address of Mr Tyas, and completed a certificate of service confirming that he had done so.  At the same time the officer sent copies of the improvement notice to the occupants of the Premises and to a mortgagee.  The mortgagee acknowledged receipt of the Council’s letter on 12 December 2011, the next working day after posting.

10.        On 27 June 2012 the Council served a further notice on Mr Tyas, again by post and to the same address, which he received two days later.  The notice informed him that as he had failed to carry out the work required by the improvement notice the Council now intended to exercise its powers under Part 2 of Schedule 3 to the Act to enter the Premises and carry out the work itself, with a view to recovering the expenses it would incur from Mr Tyas.

11.        Mr Tyas responded to the Council’s letter on 30 June 2012.  He protested that some of the work which the Council intended to carry out had not previously been mentioned in exchanges between him and its officers, and he denied receiving any improvement notice in December 2011. 

12.        On 20 July 2012 an appeal by Mr Tyas against the improvement notice was received by the RPT.  A direction was given by a procedural chairman that the RPT would consider as a preliminary issue whether the appeal could be accepted, because it had been received more than 21 days after the date on which the improvement notice had been served.

The statutory scheme

13.        Part I of the Housing Act 2004 contains a scheme for assessing housing conditions and enforcing housing standards.  Sections 1-4 create a framework for classifying housing hazards as either category 1 or category 2 hazards.  Section 5 imposes a duty on a local housing authority to take appropriate enforcement action if it considers that a category 1 hazard exits.  Section 7 confers a power on an authority to take enforcement action if it considers that a category 2 hazard exits. 

14.                      In the case of either category of hazard the enforcement options available to an authority include the service of an improvement notice (sections 11 and 12), the making of a prohibition order (sections 20 and 21), or the service of a hazard awareness notice (sections 28 and 29). 

15.        Section 12 of the Act concerns improvement notices relating to category 2 hazards.  Such a notice may relate to any dwelling, flat or house in multiple occupation and requires the person on whom it is served to take the remedial action specified in the notice. By section 30 of the Act, once an improvement notice becomes operative, it is an offence for the person on whom the notice was served to fail to comply with it. 

16.        The general rule laid down by section 15(2) is that an improvement notice becomes operative at the end of the period of 21 days beginning with the day on which it is served.  21 days is also the time limit within which a recipient may appeal to the RPT against an improvement notice under Part 3 of Schedule 1 to the Act (Schedule 1, paragraph 10(1)). 

17.        In the event of an appeal section 15(5) of the Act applies and the notice does not become operative until the appeal process is completed and the notice is finally confirmed.

18.        Paragraph 14(1) of Schedule 1 to the Act specifies a period of 21 days beginning with the date on which an improvement notice was served as the time within which any appeal must be made.  Paragraph 14(3) creates a power to extend that time, as follows:

“A residential property tribunal may allow an appeal to be made to it after the end of the period mentioned in sub-paragraph (1) or (2) if it is satisfied that there is a good reason for the failure to appeal before the end of that period (and for any delay since then in applying for permission to appeal out of time).”

19.        Regulation 4(2) of the Residential Property Tribunal Procedures and Fees (England) Regulations 2011 (“the 2011 Regulations”) made provision for requests to the RPT for permission to make any application after the end of the period stipulated in the Act as the period within which the application must be made.  Any such request was required to give reasons for the failure to make the application before the end of the relevant period and for any delay since then.  The 2011 Regulations no longer apply, following the establishment of the new tribunal structure and the creation of the First-tier Tribunal (Property Chamber) which assumed the jurisdiction of the RPT with effect from 1 July 2013.

20.        Section 246 of the Act contains provisions relating to the service of documents, and extends section 233 of the Local Government Act 1972 (which concerns service of notices by local authorities) to all of those bodies which are local housing authorities for the purposes of the Act.  Section 233(2) of the 1972 Act provides that any document may be given or served either by delivering it to the intended recipient, or by leaving it at his proper address, or by sending it by post to him at that address. 

21.        The fact that a notice may be sent by post causes section 7 of the Interpretation Act 1978 to apply.  It provides as follows:

“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

The RPT’s decision

22.        The application for an extension of time appears to have been dealt with by the RPT on the basis of written representations only.  In its decision the RPT first referred to regulation 4 of the 2011 Regulations, and then directed itself in the broad terms which I have quoted in paragraph 3 above.  It then reviewed the facts, considered the conduct of the parties, the subject matter of the improvement notice, and the interests of the occupants before concluding that it would grant the extension of time requested by Mr Tyas.

23.        In paragraph 11 of its decision the RPT made the following comments about the suggestion by Mr Tyas that he had not received the improvement notice sent on 9 December 2011:

“Given the uncertain nature of the postal service in the run up to Christmas, the Tribunal is not persuaded that it is safe to assume in such circumstances, when the notice was actually received by the Applicant, or if it was received at all.  Equally, it has to be said that it is not uncommon in similar applications for an Applicant to allege that the Notice was never received, and among other issues, that begs the question as to whether it is unreasonable to expect a local authority serving an important legal notice of this nature (which trigger a sequence of events that involve time limits) to at least obtain a certificate of posting from the Royal Mail.  This is available at no cost and upon request at any Post Office, and while it would not provide conclusive evidence of receipt by the addressee, it would clearly and independently establish the date when the Notice was sent.”

24.        In paragraph 17 of its decision, after stating that it would allow the application, the RPT went on:

“For the sake of clarity, the Tribunal accepts that the Respondent has complied with sections 246 of the Housing Act 2004 and section 233 of the Local Government Act 1972 and that the Notice was, for legal purposes, served on the Applicant in December 2011.  However, section 233(2) is in part a deeming provision and while the Applicant may have been deemed to have been served with the Notice, he may not have actually received it in December 2011 or at all.  Accordingly, while the Tribunal is allowing the applicant to make an appeal out of time, it is not saying that the Notice was not served in accordance with the appropriate legislation.”

The Appellant’s submissions

25.        The Council submits that the evidence before the RPT that the improvement notice had been posted in a letter addressed to Mr Tyas at his last known address ought, as a matter of law, to have caused it to conclude that the notice had been served on him.  It was not necessary for the Council to prove that the notice had been received.  The RPT did not say that Mr Tyas had rebutted the statutory presumption of service created by section 7 of the Interpretation Act 1978, and unless it was persuaded that Mr Tyas had not received the notice the RPT should have refused the application for an extension of time.

Discussion

26.        As I indicated when granting permission to appeal, the decision of the RPT is open to a more fundamental objection even than that identified by the Council in its submissions. In their submissions to the RPT no reference was made by either party to the statutory criteria for extending time for appeals against enforcement notices, nor did the RPT direct itself by reference to paragraph 14(3) of Schedule 1 to the Act.  The effect of that provision is that after the expiry of the 21 days allowed for bringing an appeal an extension of time may only be granted by a tribunal “if it is satisfied that there is a good reason for the failure to appeal before the end of that period (and for any delay since then I applying for permission to appeal out of time).”  The statutory test is focused closely on the reason or reasons for the time limit having been missed.

27.        It was therefore essential for the RPT to decide whether there was a good reason for the failure to lodge an appeal within the 21 days allowed.  That required the RPT first to identify what the reason for the failure was, and then to consider whether that reason was a good reason.  It was then necessary to ask the same questions in relation to the period of delay between the expiry of the permitted time for appealing and the date on which the appeal was actually brought. 

28.        Once the RPT was satisfied by the evidence of the Council that the notice had been consigned to the post in a stamped envelope addressed to Mr Tyas at his proper address, and so was deemed to have been served unless the contrary was proved, the onus of establishing the reason for the delay, and that it was a good reason, fell on the applicant.  The reason Mr Tyas put forward was that the notice had not reached him.  That was undoubtedly capable of being a good reason, if the RPT accepted that it was true. The most important matter for the RPT to have decided was therefore whether it accepted that Mr Tyas had been unaware of the notice until he received the Council’s letter of 27 June 2012 which referred to it.  Unless it was satisfied on the balance of probabilities that the notice had not been received, it could not be satisfied that there was a good reason for the delay in bringing the appeal.

29.        The RPT retained an open mind on that critical issue (as is clear from paragraphs 11 and 17 of its decision quoted above) and it did not either accept or reject Mr Tyas’ claim.  In paragraph 11 it gave one reason why the notice might not have been delivered (the uncertainties of the Christmas post) and one reason why it might choose to treat Mr Tyas’ claim not to have received the notice with scepticism (it is not uncommon for people in his position to deny receipt), but it did not weigh up other material evidence and it did not come to a conclusion.  In particular the RPT did not assess the significance of the fact the copies of the notice served on the mortgagee and on the occupants of the Premises, posted at the same time as the notice itself, arrived safely (which might be thought to diminish the significance of the supposed uncertainty of the Christmas post). 

 

30.        The RPT was not referred to section 7 of the Interpretation Act in the Council’s representations, and it went astray when it said that it was not persuaded that it was safe to assume that the notice had been received at all.  Provided that it was satisfied on the evidence that the notice had been properly posted, receipt of the notice was not something of which the RPT needed to be persuaded, because the Council had the benefit of the statutory presumption of service.  As the Council has correctly submitted in this appeal, section 7 required that the notice be assumed to have been received, unless the contrary was proved. 

31.        The RPT’s omission to decide whether or not the notice had been received by Mr Tyas might suggest that the presumption of service had not been rebutted, in which case the notice must be deemed to have been received.  That would lead to a dismissal of the application for an extension of time because it would not have been shown that there was a good reason for the failure to appeal in time.  I do not consider that that would be a safe disposal of this appeal.  It is apparent that the RPT was deflected from focussing on the critical question by its assumption that the discretion to extend time depended on a wide range of factors and on whether it was satisfied that in all the circumstances it was in the interests of justice for it to grant the extension of time.  That approach was wrong in principle, but it does not rule out the possibility that, had it asked itself whether there was a good reason for the delay, the RPT might have accepted Mr Tyas’ case that he had not received the notice.

32.        It seems to me that the appropriate disposal of this appeal is that it be allowed, and the case remitted to the First-tier Tribunal for reconsideration.

33.        I would add two further observations. 

34.        The first is in relation to the RPT’s questioning at the end of paragraph 11 of its decision whether it is unreasonable to expect a local authority serving an improvement notice at least to obtain a certificate of posting from the Royal Mail.  There is no obligation on a local authority to obtain such a certificate.  If it is disputed or not admitted that a notice has been posted at all, then it is for the authority to satisfy the tribunal on the balance of probability that it was.  A certificate of posting from the Royal Mail is one way in which the fact of posting could be proved, but it is not the only way and an authority may choose to rely only on a certificate or other evidence by its own officer.  If it does so, it will be for the tribunal to decide whether it is satisfied that the notice was posted and, if the tribunal is so satisfied, it will be for the intended recipient to establish that it was not received.

35.        Finally, in this case a procedural chairman of the RPT made a case management decision that the application for an extension of time should be determined on the basis of written representations alone.  I question whether that was appropriate.  Putting it bluntly, the main issue in this case is whether Mr Tyas is to be believed when he says that he did not receive the improvement notice.  The resolution of that issue may depend significantly on an assessment of his credibility.  In such a case a first-tier tribunal should be slow to make a case management decision which deprives the applicant of the opportunity to give evidence in person, and the authority of the opportunity to cross examine him.

Disposal

36. For these reasons the appeal is allowed and the application for an extension of time for bringing an appeal against the improvement notice is remitted to the First-tier Tribunal for re-determination.

 

 

 

Dated: 3 October 2013

 

 

 

 

 

 

Martin Rodger QC

Deputy President