[2025] UKUT 161 (LC)

The appellant’s application for permission to appeal relied on the information provided by the FTT’s staff when they served the application on the appellant, which was that the application had been received by the FTT on 28 November 2023. The FTT made no finding about the date on which the application was made, but it now appears that it had before it a copy of the email to which the application was attached. That shows, as Mr Lederman accepted, that the application was sent on 27 November 2023 at 23.37.

The FTT was not asked to determine the question now raised, which has only come into focus as a result of the Tribunal’s decision in Moh v Rimal Properties. As the issue is an issue of law which does not depend on any disputed issue of fact, and as it goes to the jurisdiction of the FTT to make the rent repayment order, it was appropriate that permission to appeal be given.

Section 41(2)(b) of the 2016 Act provides that a tenant may only apply for a rent repayment order if the offence was committed “in the period of 12 months ending with the day on which the application is made”. On the basis of the Tribunal’s decision in Moh v Rimal Properties the relevant period of 12 months ended on 27 November 2023, and included the whole of that day. The first day of the 12 month period was 28 November 2022. The appellant made an application for an HMO licence on 29 November 2022, and he was therefore committing no offence on that day, but (subject to his defence of reasonable excuse) he had been committing an offence on the previous day, 28 November. As that was the first day of the period of 12 months ending on 27 November 2023 the application will have been made in time if the view which I took in Jevan v Athansiadi is correct, namely that an application is “made” for the purpose of section 41(2)(b) when it is sent electronically and not when it arrives or is opened or processed by the tribunal.

For the appellant, Mr Lederman said that he would like to reserve his position on whether Moh v Rimal Properties was correctly decided. The case which he had intended to advance when he drafted the grounds of appeal fell away when the date on which the application had been sent to the FTT became clear (if the application had been made on 28 November, as the FTT’s staff originally implied, the application would have been a day late).

Mr Lederman based his case on jurisdiction on the proposition that the FTT could not be satisfied that an offence of being in control of or managing an unlicensed HMO contrary to section 72 of the Housing Act 2004 had been committed if, by the time the application was made, it was too late for a prosecution for the offence to be brought in the Magistrates Court. By section 127 of the Magistrates Courts Act 1980 an information or complaint alleging that offence had to be laid within six months from the time the offence was committed. Mr Lederman submitted that after the expiry of those six months it was too late to base an application for a rent repayment order on the same offence. I do not accept that submission. There is no support for it in the 2016 Act, and the express time limit in section 41(2)(b) is strongly against it. The expiry of a statutory limitation period does not rewrite the past or undo an offence which has already been committed, and a rent repayment order can be made despite there no longer being any possibility of a prosecution being brought for a relevant housing offence.

Mr Lederman also took issue with the Tribunal’s conclusion in Jevan v Athansiadi that an application was made when it was sent electronically. He referred to the decision of the Court of Appeal in Camden Borough Council v ADC Estates Ltd (1990) 61 P & CR 48 in which an application for planning permission was found to have been made not on the day on which it was put in the post, but only when it was received by the appropriate local planning authority. But there is no evidence in this case of when the email was received, nor was the FTT asked to consider that question. Mr Lederman suggested that an email sent after normal office hours should not be treated as having been received until the commencement of normal office hours on the following working day. I do not accept that submission, which appears to be unprincipled, and which would make statutory time limits dependent on the administrative arrangements of a particular recipient. If receipt is necessary before an application is made, I can see no good reason to treat the moment of receipt, whatever the hour of day, as the relevant point in time. In this case the only evidence is of the date the email was sent and in the absence of evidence to the contrary, that should also be taken as the date of receipt. On that basis the application was made within time.

I am therefore satisfied that the FTT did have jurisdiction to make a rent repayment order and that the appellant’s first ground of appeal fails.