[2024] UKUT 358 (LC)

With the permission of this Tribunal, the appellant now challenges the FTT’s determination that the application was made within time. It is agreed by the parties that the rent repayment application was lodged on the very last day permitted by section 41(2) of the 2016 Act, but the application fee was not paid until two weeks later.

In submissions prepared on the appellant’s behalf by Mr Philip Noble, he challenged the FTT’s characterisation of Page as a case under the Civil Procedure Rules; it was, he submitted, a decision concerning the meaning of the words “the date on which the claim was brought” as they are used in the Limitation Act 1980.

Mr Noble argued that, as a matter of law, a claim is only brought or an application is only made when all the necessary steps have been taken, including the payment of the fee. The fact that facilities are provided for an application to be made on-line does not relax the requirement of section 41(2), and the FTT’s procedures cannot do so either.

In submissions on behalf of the respondents, Mr McGowan suggested that the effect of the FTT guidance and the notes to Form RRO1 was to make the required fee payable 14 days after the applicant received the FTT’s unique reference number to enable it to be paid on-line.

Mr McGowan referred to the FTT’s general case management powers in rule 6 of the FTT Rules including rule 6(1) which gives it power, subject to statute, to regulate its own proceedings, and rule 6(3)(a) which enables it to extend time for complying with rules, practice directions or directions in an individual case. He also drew attention to rule 11(1), which provide as follows:

Mr McGowan submitted that guidance on when a claim is “made” should be sought in the FTT Rules and specifically rule 26(1). A party who wished to pay on-line could not do so until the FTT provided the necessary reference and in principle it should be enough for a party to do all in their power to commence a case within the relevant time limit without being at risk that the claim will be timed out by a delay in the FTT taking whatever administrative steps were required at its end. Support for this approach came from Page, although as that caseconcerned the Limitation Act 1980 the Court of Appeal’s decision was of limited assistance.