[2023] UKUT 190 (LC)

In BPP Holdings the Supreme Court acknowledged that the CPR do not apply to tribunals but noted the extent to which similar principles had gained acceptance since Denton v White. Lord Neuberger summarised the position, at [26]:

“In a nutshell, the cases on time-limits and sanctions in the CPR did not apply directly, but the tribunals should generally follow a similar approach.”

Without disagreeing in any way with that statement of principle, I nevertheless do not consider that Denton v White provides useful guidance in this case. Nor do I consider that the FTT asked itself the right question. In my judgment this is not a case about relief against sanctions, nor it is a case about the exercise of the power to strike out.

The issue in this case turns on a question of fact, namely, when did time begin to run for Mr Naujokas to appeal the civil penalty notices? The FTT found that time ran out on 20 June 2020, because that was the date 28 days after the date of posting of the notices. But it reached that conclusion before it considered Mr Naujokas’ explanation. The first question it asked itself in paragraph 12 was whether the appellant had provided a good reason why it should extend time in this case. Respectfully, I do not think that was the right starting point. Whether to extend time involves an exercise of discretion. A decision as to the date on which time began to run, and whether it had expired when a notice of application was served, is not a discretionary decision, and it requires a finding of fact.

Section 249A, Housing Act 2004 authorises the imposition of a financial penalty where it is satisfied beyond reasonable doubt that a person’s conduct amounts to a relevant housing offence. Section 249A(6) introduces schedule 13A dealing with matters of procedure, including the procedure for imposing financial penalties and for appeals.

Schedule 13A provides for the service of a preliminary notice of intent, the right to make representations and the service of a final notice once the housing authority has decided to impose the financial penalty. Paragraph 6 then provides:

“If the authority decides to impose a financial penalty on the person, it must give the person a notice (a “final notice”) imposing that penalty.”

Paragraphs 7 and 8 explain what information is to be contained in the final notice, including “information about rights of appeal”.

The requirement that the authority must “give the person a notice” must be read in the light of section 233, Local Government Act 1972 which provides for the service of notices by local authorities. So far as material, it provides as follows:

Service of notices by local authorities

Section 26 of the Interpretation Act 1889, referred to in section 233(4), is in substantially the same terms as section 7 of the Interpretation Act 1979 and provides as follows:

“26.

Meaning of service by post

Where an Act asked after the commencement of this 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 was used, then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the document, and unless the contrary is proved to have been effected at the time of which the letter would be delivered in the ordinary course of post.”

In this case it is now acknowledged that the address to which the first of the notices sent in May was sent was the “proper address” of Mr Naujokas for the purpose of section 233(4), in that it was his home address. The FTT was entitled to be satisfied on the basis of the evidence provided by the Council that the final notices were sent to that address on 21 May 2020. The effect of section 26, 1889 Act, is therefore that service was deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post “unless the contrary is proved”.

If Mr Naujokas were to prove that the notice sent to him on 21 May 2020 had not been received at that address (or possibly, if received, had been intercepted by some other person after it arrived in the house but before it reached him) then the Council would not have given him a final notice. The consequence would be that Mr Naujokas would not have been subject to a civil penalty until the later date when service was effected on him. His authorised representative received a copy of the final notice on 21 July 2022, and if no notice had been served before that date the appeal which was lodged on 20 July 2022 will not have been out of time. There would be no need for any other explanation and no question of relief against sanctions or a discretionary extension of time. The fact that Mr Naujokas and his legal representative were aware that a notice had been served because they were told as much in January 2021 and again in February 2022, would be irrelevant. Until a final notice is properly served time for appealing does not begin to run and there is no onus on the intended recipient to begin an appeal.

Where does that leave the FTT’s decision? In my judgment, it is open to challenge on three grounds. The first is that the Judge asked herself the wrong question, namely, whether Mr Naujokas had provided a good reason why time should be extended in his favour. For the reasons I have explained there was a prior question of fact, namely, whether despite having been posted to Mr Naujokas’ proper address, the final notices had nevertheless not been given to him. If the answer was that he had not, he offered no other explanation for the delay and the FTT’s decision to refuse an extension of time would have been unimpeachable. If the answer was that he had, the question of an extension of time did not arise. The onus of proving that the notices had not been received, was on Mr Naujokas. He maintained that he had never been given the final notices. The question for the FTT was whether it believed him or not.

The second legitimate challenge to the decision concerns the way in which the Judge dealt with Mr Naujokas’ case that he had never been given a final notice. She was critical of the fact that he had not made a witness statement in paragraphs 9 and 11 of the decision. Instead, “the applicant’s representative stated that the notices posted in 2020 were not received”. But the case officer’s letter of 19 August 2022 had said nothing about a witness statement. Instead it had invited the applicant to “make representations to the tribunal as to why the proceedings should not be struck out”. It does not seem to me to be fair for the Judge to have placed weight on the absence of a witness statement, when the tribunal’s own invitation (addressed to his lawyer) was to provide representations.

The Rules acknowledge the distinction between evidence and argument, and between a witness statement and “submissions” (which I take to be synonymous with “representations”). Rule 18(1) gives examples of how the FTT’s case management powers may be exercised: it may give directions as to, at (c), “issues on which it requires evidence or submissions” and, at (d), “the nature of the evidence or submissions it requires”. By rule 18(1)(g) directions may be given as to “the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given orally at a hearing, or by written submissions or witness statement.

The directions given by the FTT were not well adapted to the critical issue in the case. If the FTT had wished to prescribe the manner in which any evidence was to be given it had power to do so. It could have required Mr Naujokas to produce a witness statement, supported by a statement of truth (with the result that a criminal sanction would apply if the witness statement contained material which was known to be false) or to attend at a hearing to give oral evidence, or both. It did not do that but instead gave him an opportunity to make “representations”. That is what Dr Van Dellen did on his behalf and I do not think it was open to the FTT to disregard or diminish those representations merely because they did not come in the form of a witness statement. It is true that the explanation given was no more than an assertion and did not speculate about why the notice might not have been received, but that is not inconsistent with the assertion being true as the maker of the statement may have had no other information to offer. The representations still needed to be assessed, and a decision made whether the explanation was true. The Judge did not undertake that exercise.

Finally, in explaining the background to the decision, at paragraph 7, the Judge referred to Dr Van Dellen’s email of 26 December 2020 and said that it asked for a copy of the notices. The same point was made by the Judge when she refused permission to appeal, saying that she had received no explanation why Mr Naujokas had waited until July 2022 to request copies of the notices “having first instructed a representative to request copies in December 2020”. But Dr Van Dellen’s email contained no request for copies of any document and referred instead to the fact that the writer had seen the three notices served on 2 April 2020 (the notices of intent and the improvement notice). The fact that copies of final notices were not requested is supportive of Mr Naujokas’ case. It was consistent with his claim that he did not receive the notices during 2020 that his representative made no mention of them in December that year and did not ask for further copies. The Judge appears to have misread the email and not to have appreciated that it was capable of assisting, rather than undermining, the appeal.

I should also say something about the procedural aspect of this appeal. The Judge evidently found some difficulty relating the circumstances of the case to the terms of rule 9. She relied on rule 9(2)(a) on the grounds that the tribunal did not have jurisdiction and alternatively on rule 9(3)(d) on the grounds that the extreme delay in making the application meant that it was an abuse of process. Neither of those provisions is appropriate to the question in this case.

Rule 26(1) provides that an applicant must start proceedings before the tribunal by sending or delivering a notice of application. The procedural requirement in rule 27(2) to start the proceedings within 28 days of the date on which the decisions “was sent to the applicant” presupposes that the giving of the notice was successfully achieved; the Rules cannot override the substantive requirement of paragraph 6 of Schedule 13A, 2004 Act that a final penalty notice must be given to the applicant. If that requirement has not been complied with there is nothing for the applicant to appeal against. If it has been complied with, and an appellant does not start proceedings by sending a notice of application within 28 days, the relevant rule is rule 6(3)(a) which gives the FTT power to extend or shorten the time for compliance, even if the application for an extension is made after a time limit has expired.

In considering whether to exercise the power to extend time the guiding principle is found in rule 3 which describes the FTT’s overriding objective to deal with cases fairly and justly. When a significant sum is in issue, as in this case, and when the issue of fact on which the right to appeal may turn depends on the credibility of the evidence of the recipient of a notice about the time he received it, it may be difficult for the FTT to reach a fair and just decision without giving the recipient the opportunity to give oral evidence.