[2024] UKUT 415 (LC)

39 Dunkirk Road is a small two bedroom house in Burnham on Crouch. It was originally let by the appellant, Moat Homes Ltd, to Mr George Banks under a weekly assured tenancy, in writing. That tenancy was assigned to the respondent, Miss Michelle Carlo, in 2014.

The tenancy commenced on 4 June 2012 and included a clause, clause 3, headed “Changes in net rent”, which said this:

“Changes in net rent

(a)

The net rent payable under this agreement will be reviewed in April every year, regardless of when the tenancy started.

(b)

We may increase or decrease the rent by giving you four weeks’ notice in writing. The notice will set out the proposed net rent and service charge.”

On 26 February 2024, Moat gave Miss Caro notice that it proposed a new rent of £191.74 to take effect from 1 April 2024 in place of the previous rent of £178.03. The notice was in the form prescribed for use as a landlords’ notice proposing a new rent under an assured periodic tenancy of premises situated in England in accordance with section 13, Housing Act 1988. It included guidance notes advising that if the recipient of the notice did not agree to the rent increase which had been proposed, they could refer the notice to the FTT.

Following that advice, Ms Caro applied to the FTT on 18 March requesting a determination of the rent payable under the tenancy with effect from 1 April. Thereafter, the FTT gave directions for the parties to make representations about the appropriate rent, but Moat ignored those directions and did not participate in the proceedings. On 20 May 2024, after considering the representations which Ms Caro provided in writing, the FTT determined that the new rent under section 14, 1988 Act should be £180 a week.

It was not until the FTT had determined a new rent that Moat became interested in the process. It sought permission to appeal on the grounds that the tenancy was not one to which section 13 applied because clause 3 was a provision which allowed the landlord to increase or reduce the rent and so brought the tenancy within the exception in section 13(1)(b). The FTT granted permission.

Miss Caro’s assured tenancy is not for a fixed term but is from week to week. It is therefore not a statutory periodic tenancy and section 13(1)(a) does not apply to it.

Because it is from week to week, Miss Caro’s tenancy is an assured periodic tenancy. Section 13(1)(b) will therefore apply unless the tenancy contains a provision bringing it within the exception i.e. a provision under which the rent for a particular period of the tenancy will or may be greater than the rent for an earlier period. The FTT did not consider whether clause 3 of the tenancy agreement is such a provision, because Moat took no part in the proceedings and Miss Caro no doubt assumed that the guidance contained in the notice of increase applied to her tenancy.

I have considered all of the points made by Miss Caro in her letter to the Tribunal of 18 November. She is entitled to be critical of Moat for failing to cooperate with the FTT. The points she makes about the value of different properties and the work she and her predecessor did to her home were all addressed by the FTT when it determined the very small increase it considered appropriate. But the FTT was not alerted to the issue raised in the appeal and, now that it has been raised, that issue cannot be ignored because it is about the limits which Parliament has placed around the FTT’s power to set rents.

It is clear that Miss Caro’s tenancy is not one to which section 13 applies. It is excluded by clause 3 of the agreement which is exactly the sort of contractual provision for increasing rent which is described in the exception in section 13(1)(b). It follows, as it did in Contour, Chouan and Salvation Army Housing Association, that the FTT did not have jurisdiction to determine a new rent.

Because it did not have the necessary jurisdiction, the FTT’s decision of 20 May 2024 must be set aside. Miss Caro’s rent with effect from 1 April 2024 has been the sum of £191.74 specified in the notice given by Moat on 26 February 2024.