Where a tenant attempted to challenge a Section 13 notice out of time the Court held in Robertson v Webb that there was no room for discretion to extend the time.
The tenant had been served with a valid Section 13 notice proposing to increase the monthly rent. The tenant failed to pay the increased rent and when challenged by the landlord claimed that he had not received the notice. Some six weeks outside the time limit specified in the notice the tenant then attempted to challenge it in the First Tier Tribunal (FTT). The FTT held it had no jurisdiction because the referral had been bought out of time. The Upper Tribunal (UT) refused to grant permission to appeal but the refusal was quashed on a Judicial Review which referred the matter back to the UT for it to reconsider its refusal to grant permission to appeal.
Decision of the UT
FTT’s jurisdiction – The language of the Housing Act 1988 Section 13 is very explicit and the FTT simply has no jurisdiction to deal with a tenant’s referral which is made out of time. The time limit is expressed very clearly as well as the consequences of failing to challenge it within that time limit. The Section 13 notice had been validly served and the referral had been made out of time. In these circumstances the Act provides no discretion in respect of the time limit and as a result the FTT had no jurisdiction. The FTT could not alter that jurisdiction, even if it wanted to, and the UT equally had no power to alter the scope of the jurisdiction, even if the High Court might have thought it should.
ECHR Art 6 (Right to a Fair Trial) – The Upper Tribunal considered whether the FTT had a discretion to extend time in exceptional circumstances. The UT held that it did not and even if it did this case was not exceptional. Statutory time limits for the service of notices are very common in private contractual relationships with non-compliance affecting a party’s rights. These time limits are designed to create legal certainty which would be undermined if discretion was exercised to extend the time limit. Rent increases were very common in landlord and tenant matters and not comparable with deprivation of liberty or some other very serious detriment which would be considered exceptional.
The UT also held that the Section 13 process is not onerous, it is clear what action a tenant needs to take and when with the whole process being quite straightforward. Furthermore, the consequences of not acting within the time limit is also specified which is that the increased rent will become payable. Even if the FTT had a discretion in this instance case it would be wholly inappropriate to exercise it because the tenant had failed to do all he could reasonably do to bring the referral application timeously. The tenant had failed to demonstrate that he acted in a timely manner or that there were exceptional circumstances for his delayed application.
The importance of time limits is clearly demonstrated in this case and the consequences of any delay. Where landlords serve section 13 notices they should ensure that they complete it accurately and serve it pursuant to the conditions in the tenancy agreement. Where there is any doubt about how to serve a valid a section 13 notice, advice should be sought prior to sending the notice.