[2024] UKUT 358 (LC)

For a period of two years from September 2021 the respondents were tenants of a flat belonging to the appellant which should have been licensed under the local housing authority’s selective licensing scheme but was not. On 5 June 2023 they filed an online application to the FTT for a rent repayment order. A fee was payable and their representative, Mr McGowan of the organisation Justice for Tenants, asked to pay it by an online bank transfer. On 22 June the FTT provided the necessary bank details to enable the payment to be made.

The FTT’s letter of 22 June acknowledged receipt of the respondent’s on-line application, provided details of the relevant bank account and reference and asked the respondents to confirm within 14 days that payment had been made. On 5 July it confirmed that the payment had been successfully received.

At the hearing of the application, subject to a defence of reasonable excuse which the FTT did not accept, the appellant acknowledged that he had committed the offence of managing an unlicensed house contrary to section 95, Housing Act 2004 between 1 October 2021 and 6 June 2022; on 7 June 2022 he applied for a licence and from that date the offence was no longer being committed. The FTT decided that the application had been made within the period prescribed by section 41(2) of the 2016 Act and ordered the appellant to repay rent of £3,150.82 to each of the respondents.

The FTT was referred to the decision of the Court of Appeal in Page, which was said to mean that an application was not made until the required fee was paid but decided that it did not apply to an application which was not governed by the Civil Procedure Rules. It noted that although rule 26 of the FTT Rules requires that any application to it be accompanied by the appropriate fee, the FTT’s own application form allows for the fee to be paid online, and it is the FTT’s practice that fees paid within 14 days of notification of the relevant bank details are accepted. The application was therefore treated by the FTT as having been received on 5 June 2023, which was within 12 months of 6 June 2022, being the last date on which the offence had been committed.

When it refused an application for permission to appeal the FTT explained that when an application is submitted online it is not possible for the applicant to pay a fee in either of the ways it is equipped to accept it, namely by cheque or by bank transfer.