[2024] UKUT 314 (LC)

Although section 13(4) requires an application to the FTT to be in a prescribed form, and although Form No. 6 is prescribed, the effect of regulation 2 of the 2015 Regulations is that any form which is “substantially to the same effect” will confer jurisdiction on the FTT just as completely as if the prescribed form had been used. Such a form of application is entirely compliant with section 13(4) and is not defective, so there is no need to consider the consequences of non-compliance with the statutory procedure.

Mr Cohen submitted that Ms Atesheva’s email of 31 December 2023 included all of the material information required by the prescribed form and was substantially to the same effect. Specifically it set out: (i) her name; (ii) the property in question; (iii) the date the new rent was to take effect; (iv) the name and address of Halifax (which she understood to be the managing agent but which the tenancy agreement identifies as her landlord); (v) the new rent; and specifically (vi) appealed to the First-tier Tribunal to undertake a review of the rent increase.

In considering the effect of Ms Atesheva’s communication with the FTT I do not think that weight should be given to the fact that the information supplied was contained in an e-mail, rather than on a printed form. What matters is the information conveyed to the recipient, not the way in which it is presented. If support for that approach is required, it can be found in Tadema Holdings v Ferguson [1999] EWCA Civ 3045, which concerned the validity of a landlord’s notice under section 13(2), 1988 Act. The landlord had used a previous edition of the prescribed form. Part of the tenant’s argument focused on differences in the layout and presentation of the notes included in the new form, which were different from the old, although it was not suggested thatthe information itself was substantially different. In the Court of Appeal Peter Gibson LJ (with whom Ward LJ agreed) rejected the submission that the old and new forms were not “substantially to the same effect”, saying this:

“The fact that information is provided in a different format does not seem to me to amount to a difference of significance. Indeed, in my view, that is precisely the sort of difference which Regulation 2 was aimed at making immaterial.”

It is also important to remember that the form is an application to the FTT. It is not addressed to the landlord (nor is the tenant required to send a copy to the landlord). The few explanatory notes which it contains are intended to assist the tenant in filling in the form, not to convey information to the recipient; in my judgment the omission of the introductory notes did not by itself prevent Ms Atesheva’s e-mail from being substantially to the same effect as Form No. 6.

The important question for the purpose of this appeal is therefore whether the information contained in the e-mail was substantially to the same effect as the information required by Form No. 6.

Statutes often require notices to be served in a prescribed form and, when they do, they often allow a form “substantially to the same effect” to be used instead. Guidance on how the relevant comparison is to be undertaken is available from a number of cases under the Landlord and Tenant Act 1954.

In Sun Alliance & London Assurance Co Ltd v Hayman [1975] 1 WLR 177 an old form of notice under the 1954 Act had been used. The Court of Appeal decided that whether a notice is substantially to the same effect depends on a comparison between the words used and the corresponding words of the prescribed form to see whether the words used “mean substantially the same” as the words which should have been used. The fact that the recipient was not misled was irrelevant.

In Tegerdine v Brookes (1977) 36 P&CR 261, another case under the 1954 Act in which certain notes included in the prescribed form had been omitted, Bridge LJ posed the question: if the omitted notes had been included, would they have formed part of the substance of the notice? The same question was posed by Aldous LJ in Sabella Ltd v Montgomery [1998] 1 EGLR 65, where he said that whether two notices were substantially to the same effect depended on the importance of the differences between them, not on their number. In the same case Sir Richard Scott V-C said that Tegerdine was authority that a valid notice may omit parts of the prescribed form that are simply irrelevant to the rights and obligations of the recipient.

In Johnson v Richmond Housing Partnership Ltd [2022] UKUT 80 (LC) the Tribunal (Judge Cooke) determined that an application to the FTT under section 13(4), 1988, made using Form No. 6 but omitting to include the correct notice of increase (and including one from a previous year), was nevertheless made in a form “substantially to the same effect” as the prescribed form.

I accept Mr Cohen’s submission that the information he identified was all required by the prescribed form and included in the e-mail. But it is also necessary to consider whether any information requested by Form No. 6 was missing from the e-mail and why it might have been requested in the prescribed form. There were a number of such pieces of information.

Question 3 of the prescribed form contains five questions about the premises themselves, to be answered by ticking one of a series of multiple choice answers: “What type of accommodation do your rent?” “If it is a flat or room(s) what floor(s) is it on?” “The number and type of rooms, e.g. living room, bathroom etc”. “Does the tenancy include any other facilities, e.g. garden, garage or other separate building or land?” “Does the tenant share any of the accommodation with either the landlord or another tenant or tenants?” The purpose of requesting this information is clearly to provide the FTT with some basic facts about the nature, size and characteristics of the dwelling it is being asked to value.

Question 4 of the prescribed form then asks when the present tenancy began. The purpose of that information is to assist the FTT in ascertaining whether the landlord’s notice of increase under section 13(2) was given prematurely (section 13(2) restricts the time at which a landlord may propose a rent increase so that, generally in the case of an assured tenancy, it must not be earlier than 52 weeks after the tenancy began).

Question 5 asks whether the tenant paid a premium in addition to rent. This information is relevant because, ordinarily, it is an implied term of an assured periodic tenancy that the tenant may not assign the tenancy or sublet the premises (section 15(1), 1988 Act) but that statutory prohibition will not apply if a premium is paid (section 15(3)(b)).

Question 6 asks a further series of questions about services: are any provided under the tenancy; is a separate charge made, and if so, how much; does the charge vary according to the relevant cost? These questions are relevant to the FTT’s task because the rent it is required to determine does not include any variable service charge but does include any other sum payable on account of services or furniture (section 14(4)). For the same reason, section 7 asks whether any furniture is provided under the tenancy.

Section 14(2), 1988 Act requires that tenant’s improvements be disregarded in determining a new rent. Question 8 therefore asks whether the tenant or a predecessor has carried out any improvements to the premises or replaced fixtures, fittings or furniture which were not her responsibility under the tenancy agreement.

Question 9 asks the tenant to state what repairs are the responsibility of the landlord and of the tenant. The question must be concerned with the terms of the tenancy agreement, rather than with specific items of disrepair, since the FTT is required by section 14(2)(c) to disregard any reduction in the value of the premises attributable to a failure by the tenant to comply with any terms of the tenancy.

Question 10 asks whether there is a written tenancy agreement. If there is, the tenant is asked to attach it to the application. The reassuring note that it will be returned as soon as possible suggests that the document required is the original agreement, not a copy.

Question 11 then asks if the tenant has an assured agricultural occupancy before the form ends with space for the tenant to sign a statement confirming that she has attached a copy of the notice proposing a new rent and applies for it to be considered by the FTT.

None of the information requested in questions 3 to 11 of the prescribed form was supplied by Ms Atesheva in her e-mail of 31 December and her second e-mail of 22 January added nothing to the first. It might be argued that it was implicit in her complaints about the condition of the property that responsibility for repairs fell on the Landlord rather than the tenant, but with that possible exception none of the other information was included. Nor did Ms Atesheva include a copy of her tenancy agreement or of the notice of increase (although she did provide details of the amount of the increase and the date of commencement which might be said to be the purpose of including a copy).

It might also be suggested that the omission of some of the information should be disregarded as irrelevant, as the approach taken by the Court of Appeal in Tegerdine would allow. One example might be the answers to question 5 (was a premium paid) or question 11 (is the tenancy an assured agricultural occupancy). But caution is required before dividing the prescribed form into relevant and irrelevant parts. The answer to both questions, whether it is positive or negative, has a bearing on the FTT’s task in determining a new rent. Whether a premium was paid affects the terms of the tenancy concerning alienation, which are likely to have an impact on value. Whether the tenancy is or is not an agricultural occupancy affects the earliest date from which a new rent can be requested. The fact that premiums are very unusual, and that South London is not an area where agricultural occupancy is likely to be encountered does not make it less important to know the answers to these questions. The same is true of the other matters to be addressed in the prescribed form; it is all information which may affect the rental value of the premises.

Making a comparison between the e-mail of 31 December and the prescribed form, it does not seem to me to be possible to conclude that they are “substantially to the same effect”. The e-mail does not impart substantially the same information as a properly completed version of Form No. 6 would. The missing information is relevant and without receiving it from someone, the FTT could not at that stage know with confidence whether the time for a determination had arrived, or the extent of the property or the terms of the tenancy which it was being asked to value. Since the provision of the information is part of the purpose of an application under section 13(4), without it the effect of the e-mail is not substantially the same as the effect of the prescribed form.

Of course, the information requested in the prescribed form cannot have been intended to be the last word on any of the matters concerned. Like the rent assessment committees which preceded it, the FTT is a judicial body. It is therefore required to establish the relevant facts for itself on the basis of evidence or admissions and it will necessarily give the landlord the opportunity to agree or disagree with the information provided by the tenant in her application. To facilitate that fact finding the FTT is also given power under section 41(2), 1988 Act, to require the landlord or the tenant to provide such information as it may reasonably require for the purposes of its functions. Nevertheless, the tenant’s application is intended to be the starting point of the fact finding exercise, and Ms Atesheva’s e-mail did not do the job sufficiently to comply with section 13(4).

I therefore conclude that Ms Atesheva did not apply to the FTT using the prescribed form or a form to substantially the same effect before 1 February 2024, the date specified by the landlord’s notice for the increased rent to commence.