B e f o r e :
Judge Elizabeth Cooke ____________________
____________________
Determination by written representations ____________________
HTML VERSION OF JUDGMENT ____________________
Crown Copyright ©
HOUSING – CIVIL PENALTY – First-tier Tribunal's discretion to extend time for appeal – whether refusal to extend time was disproportionate to the severity of the default - Denton v TH White Ltd [2014] 1 WLR 3926 and the considerations to which the First-tier Tribunal should have had regard
The following cases were referred to in this decision:
B PP Holdings v Commissioners for Her Majesty's Revenue and Customs [2017] 1 WLR 2945
Denton v TH White Ltd [2014] 1 WLR 3926
Jalay Enterprises Ltd v Ramsdale [2023] UKUT 247 (LC)
Introduction
This is an appeal by Mr Rafiul Islam from the decision of the First-tier Tribunal not to grant him an extension of time to appeal from a financial penalty imposed by the local housing authority. It has been decided under the Tribunal's written representations procedure. The appellant has not been legally represented. Written representations in response to the grounds of appeal were made for the Thanet District Council by a senior housing officer; but the council has not filed a respondent's notice; I refer to it as "the respondent" for brevity, but it is not a party to the appeal.
The background and the FTT's decision
Section 249A of the Housing Act 2004 enables a local housing authority to impose a civil penalty, also known as a financial penalty, upon a person who has committed one of certain housing offences, as an alternative to prosecution. Schedule 13A to the 2004 Act sets out the procedure for imposing a penalty, including the service of a Notice of Intent to impose a penalty and then a Final Notice. Paragraph 10 of that schedule provides that there is an appeal from the imposition of a penalty to the FTT.
Paragraph 10 of Schedule 13A does not specify a time limit for the appeal of a Financial Penalty to the Tribunal. However, Rule 27 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 states:
The FTT has a discretion to extend time if an application is made outside that 28 day time limit.
The respondent sent to the appellant a final notice, imposing a financial penalty of £7,500, dated 30 May 2024. The appellant's application to the FTT was received on 22 July 2024, just over three weeks out of time. The FTT conducted a hearing on 8 January 2025 to decide as a preliminary issue whether an extension of time should be granted.
The appellant gave six reasons why an extension of time should be granted, each of which the FTT rejected:
The FTT concluded:
The appellant appeals with permission from this Tribunal.
The appeal
The approach which should be taken by the FTT to procedural defaults was considered by this Tribunal in Jalay Enterprises Ltd v Ramsdale [2023] UKUT 247 (LC) , where at paragraph 1 the Deputy President said
The Court of Appeal in Denton v TH White Ltd [2014] 1 WLR 3926 gave guidance about the approach to be taken to procedural defaults in the courts, and the Supreme Court in BPP Holdings v Commissioners for Her Majesty's Revenue and Customs [2017] 1 WLR 294 has indicated that all tribunals should follow that guidance. Accordingly the FTT's decision should have been made after considering the matter in three stages:
It is important that a consistent approach is taken by all tribunals to avoid unfairness. It is not clear that the FTT in this case had the relevant principles in mind. In particular, it appears to have considered only whether the appellant had provided a good reason for the delay in making his application; its approach seems to have been that if there was no good reason for delay then the FTT's discretion could not be exercised in the appellant's favour.
In particular, the FTT appears to have given little or no consideration to the relevance of the applicant's email contact with the FTT a few days after the expiry of the time limit in which he explained that he wished to appeal the penalty notice. If the appeal is taken as having been commenced on that date the period of delay was trivial; even by 22 July the period of delay was not lengthy and a properly directed decision maker might have regarded it as less than serious. Nor does the FTT appear to have taken into account that the consequence of refusing to admit the appeal would be that a significant penalty would be imposed on the appellant without any judicial consideration at all.
The FTT was also in error about the appellant's fifth reason, namely the lack of prejudice to the respondent. The issue there is not whether it would be expensive for the respondent to defend the appeal, but whether the cost or other prejudice would be any greater by virtue of the appeal being made late. In the present case a delay of just over three weeks could not have made any difference to the respondent in terms of the cost, in time or money, of participating in the FTT proceedings.
The FTT was of course making a discretionary decision whether to extend time, and the Tribunal cannot interfere unless the FTT made an error of law or unless it can be seen that the decision was irrational. In this case the FTT failed to take into account material considerations, and the decision is set aside.
The Tribunal's decision
The Tribunal substitutes its own decision that time is extended for the appellant's appeal to the FTT. Looking again briefly at the three Denton considerations: first, the delay was short and caused no prejudice to the respondent; it was not a serious procedural default. Second, the appellant's reasons for being late were not the best; he failed to give proper consideration to the information he was given in the Final Notice and as a result got it wrong. And third, as to an evaluation of the relevant circumstances, the financial penalty was significant to the appellant, and to refuse to admit his appeal on the basis of a minor default was disproportionate.
Time is therefore extended; either party may ask the FTT for directions in order for the proceedings to recommence.
Judge Elizabeth Cooke
August 2025
Right of appeal
Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal's decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.