[2024] UKUT 358 (LC)

What must an applicant do to commence proceedings in the Property Chamber of the First-tier Tribunal?

The issue in this appeal is whether the effective commencement of tribunal proceedings by making an application in the First-tier Tribunal, Property Chamber (the FTT) requires that the appropriate fee must first be paid or tendered.

When the same question has been asked in respect of court proceedings the answer given, following the dictum of Eveleigh LJ inAly v Aly [1984] 1 WLUK 936, has generally been that a litigant must do all that is within their power to set the wheels of justice in motion according to the procedure that is laid down for the pursuit of the relief they seek. In Page v Hewetts Solicitors [2012] EWCA Civ 805 the Court of Appeal held that time stopped running for the purpose of the Limitation Act 1980 when a claim form was delivered in due time to the court office, accompanied by a request to issue and the appropriate fee. Failure to pay the appropriate fee in time (or to tender a cheque in the right amount) proved fatal in Page v Hewetts Solicitors [2013] EWHC 2845 (Ch), but a failure to pay the correct court fee in time does not invalidate proceedings which have already been issued by the court, and the Court of Appeal has left open whether it would have that effect where the proceedings had been filed in time but not issued (see Butters v Hayes [2021] EWCA Civ 252, at [23]-[24]).

The issue arises out of a decision of the FTT handed down on 11 June 2024 in a rent repayment order case. It is a requirement of section 41(2), Housing and Planning Act 2016 that a rent repayment order may only be made under Part 2, Chapter 4 of the Act if the housing offence in respect of which the order is made was “committed within 12 months ending with the date the application was made”.

Procedure in the FTT is governed by the Tribunal Procedure (First-tier Tribunal) (Property Chamber Rules 2013 (the FTT Rules). Rule 26 is titled “starting proceedings”. It begins as follows:

Article 4(2) and Schedule 1 to the First-tier Tribunal (Property Chamber) Fees Order 2013 provide that a fee is payable on filing an application to commence proceedings in a residential property case and that it is due “at the same time as the application is made”.

In April 2020, at the start of the Covid-19 pandemic, when the FTT’s offices were closed and staff were working remotely, the facility to make payment of tribunal fees on-line was introduced. Guidance to users about starting proceedings was issued by the FTT on 29 April 2020 and stated that where a fee was required it could be paid using on-line banking. The date that the application or appeal was lodged with the tribunal would be regarded as the date of receipt for the purpose of any statutory time limit, and the applicant would then have 14 days to pay the fee. They would do so using the appropriate bank account details and a unique payment reference which would be provided by the FTT.

The procedures described in the 2020 guidance have subsequently become absorbed into the FTT’s standard ways of working and are explained in the text of the forms which it publishes for use in making applications for which a fee is payable. The relevant application form for rent repayment applications is Form RRO1. It explains that an applicant may pay the required fee by cheque or postal order or by an on-line banking payment. If the latter option is chosen the applicant is told they will be sent details for paying on-line. A checklist at the end of the form explains that if the applicant has opted for on-line payment a unique payment reference will be sent by the FTT office which must be used when paying the fee.