Lester, R (On the Application Of) v London Rent Assessment Committee [2003] EWCA Civ 319

Case No C1/2002/2461; 2461A

[2003] EWCA Civ 319

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

(ADMINISTRATIVE COURT AND DIVISIONAL COURT)

Sir Richard Tucker (Sitting as a Deputy High Court Judge)

Venue Royal Courts of Justice

Date Wednesday 12 March 2003

Strand,

London, WC2A 2LL

Before

LORD JUSTICE WALLER

LORD JUSTICE TUCKEY

LORD JUSTICE SEDLEY

Between

The Queen on the application of Katie LesterClaimant/

The London Rent Assessment CommitteeDefendant/Respondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr Robert Latham (instructed by McMillen Hamilton McCarthy) for Appellant

Mr Timothy Morshead (instructed by The Treasury Solicitor) for Respondent

Judgment

As Approved by the Court

Introduction

[1]This appeal raises a point on the construction of section 13(4) of the Housing Act 1988. If a landlord serves a notice on an assured tenant under section 13(2) of the Act proposing an increase in rent, that will be the rent unless, according to the words of section 13(4), “before the beginning of the new period specified in the notice …. the tenant by an application in prescribed form refers the notice to a rent assessment committee.” By section 14 of the Act where the tenant “refers to a rent assessment committee a landlord’s notice of increased rent, the committee shall determine the rent …. ” unless the parties otherwise agree in writing. Does ‘refer’ mean that the rent assessment committee (the RAC) must have received the notice in prescribed form before the beginning of the new period, or would despatch of the form by posting or other means before the beginning of the new period be enough? Could there be an intermediate position i.e. despatch by post or other means with the reasonable expectation that the notice would be received prior to the beginning of the new period?

[2]It is common ground in this case that the RAC did not as a fact receive the notice before the beginning of the new period. Thus if the first suggested construction involving actual receipt was correct, that would be the end of the matter. If despatch alone, or the intermediate suggestion, was the correct answer, there is an issue as to whether there was evidence before the rent assessment committee that the notice in this case had been despatched by post.

The Facts

[3]Since about 2 September 1995 the appellant has been the tenant of flat 6, 29 Leigh Road, London N5. On 12 September 2001 the landlord (Unistar Properties Limited) acquired the freehold interest in the property and thereby became the landlord of the appellant. The appellant is an assured tenant within the provisions of Chapter 1 Part 1 of the 1988 Act.

[4]On 6 February 2002 B Bailey & Co the landlord’s managing agent, served a notice pursuant to section 13(2) of the 1988 Act proposing an increase in the rent as from 20 March 2002 (a Wednesday). The landlord used the prescribed form (form 4).

[5]In the body of the notice it stated:

“This is to give notice that as from 20th March 2002 your landlord proposes to charge a new rent. The new rent must take effect at the beginning of a new period of the tenancy and not earlier than any of the following:- (a) the minimum period after this notice was served,[then the minimum periods for the different types of tenancies are specified] (b) the first anniversary of the start of the first period of the tenancy except in the case of: [not applicable in this case] (c) if the rent under the tenancy has previously been increased by a notice under section 13 or a determination under section 14 of the Housing Act 1988, the first anniversary of the date on which the increased rent took effect. [again not applicable in this case].”

The notice specified the existing rent as £58.00 per week and proposed the new rent of £150.00 per week.

[6]The notes on the form provided as follows:

“What to do if this notice is served on you You should read this notice very carefully. Your landlord is proposing a new rent. If you agree with the new rent proposed, do nothing. If you do not agree and you are unable to reach agreement with your landlord or do not want to discuss it directly with him, you may refer this notice to your local rent assessment committee prior to the date specified in section 3, using the form headed “Application Referring a Notice Proposing a New Rent under an Assured Periodic Tenancy or Agricultural Occupancy to a Rent Assessment Committee.”

You can obtain this form from a rent assessment panel or a law stationer (Oyez form HA 34). The rent assessment committee will consider your application and will decide what the rent for the premises will be. The committee may set a rent that is higher, lower or the same as the landlord has proposed in section 5. ….. [inapplicable] If you need help or advice please take this notice immediately to a citizens’ advice bureau, a housing advice centre, a law centre or a solicitor.”

….. [inapplicable]

[7]Mr Robert Latham is critical of those notes if ‘refer’ means anything other than despatch because he says the notes do not make clear(a) that actual receipt by the rent assessment committee prior to 20 March 2002 would be necessary for the referral to be effective, and

(b) the notes do not make clear that unless the local rent assessment committee actually received the notice of the tenant, the new rent proposed by the landlord will be the rent as from 20 March 2002.

[8]The appellant did fill in the prescribed form as envisaged by section 13(4) of the 1988 Act for the purpose of referring the matter to the RAC. The form that she filled in is dated 8 March 2002. The appellant asserts that she posted that form on 18 March 2002 in a prepaid business reply service envelope for the attention of the secretary of the RAC. It is common ground that the notice was not in fact received by the RAC until 20 March 2002. In the notice the appellant gave certain details including details of repairs which she suggested the landlord had not carried out. With the notice she attached the notice received from the landlord and requested the matter be considered by the RAC.

[9]There were notes at the commencement of that form to assist the tenant. They included matters such as writing clearly and ticking certain boxes, but also included the following:

“This form must be completed and sent to your local rent assessment panel – with a copy of the notice served on you proposing the new rent – before the date it is proposed that the new rent will take effect.”

[10]If ‘refer’ means that the notice must be received by the rent assessment panel then the above note appears to be misleading. Mr Robert Latham goes further however than criticising that note in that he suggests it is possible to use the same to assist in the construction of the word ‘refer’ in section 13(4). “Sent”, he submits, and there really is no contest on this, means despatch by post or possibly other means. It does not carry any connotation of the necessity of receipt by the RAC.

[11]On 10 April 2002 the RAC wrote to the appellant informing her that there was to be a preliminary hearing as to whether they had jurisdiction to determine her application. The letter stated that the new rent had come into effect on 20 March 2002 and her application had been received on the same day. That preliminary hearing took place on 17 May 2002 and by written notification dated 22 May the RAC concluded that they had no jurisdiction to determine the application because the tenant’s application was “not received” before the new rent became effective.

[12]By letter dated 24 May 2002 the RAC were asked to provide full written reasons in support of their decision. Extended reasons were provided in a document dated 24 June 2002 and those reasons appear at pages 27-29 of the bundle. In those reasons the RAC set out the submissions made on behalf of the tenant that ‘refer’ did not mean ‘receive’. The RAC set out the tenant’s case that she had posted the application by first class post on Monday 18 March 2002. They further set out the case of the landlord which was to the effect that the tenant had been unable to provide any proof of posting and further that the natural meaning of the word ‘refer’ must be ‘receipt’. Their conclusion then was:

“The Committee considered both sets of representations very carefully. The tenant’s solicitor was unable to produce any evidence that the tenant’s application referring the notice to the Rent Assessment Committee had either been sent or received before the new rent became effective on 20 March 2002. Accordingly, the Committee decided that they had no jurisdiction.”

[13]An application for judicial review of the RAC’s decision came on before Sir Richard Tucker, and by a judgment given on 7 November 2002 he upheld the view of the RAC. The learned judge dealt with what can be described as the evidential issue first and held that the RAC were entitled to conclude that there was no evidence before them that the notice had been posted. The judge then dealt with what he described as the crucial issue and held that ‘refer’ meant ‘deliver to’, saying:

“In my view that is the ordinary and obvious meaning of the word. An application cannot be referred to a person until he has received it.”

What is the meaning of ‘refer’?

[14]Mr Robert Latham wished to start consideration of this aspect by reference to certain authorities decided in the European Court of Human Rights. This would be linked with an argument, if ultimately needed, that by virtue of section 3 of the Human Rights Act 1998, the word ‘refer’ in section 13(4) should in effect be read down in favour of the appellant; but even prior to any such argument he maintained that some assistance could be gained on construction by reference to such authorities. The authorities he suggested provided support for the following propositions;(1) the need for legal certainty;

(2) the need not to put an over strict interpretation on a procedural rule if that would deprive a citizen of access to justice; and

(3) the recognition that an applicant who has acted reasonably should not be deprived of that access to justice.

[15]Mr Robert Latham maintained that he obtained support for the above propositions from Miragall Escolano and others v Spain

(2002) 34 EHRR 24

and Perez de Rada Cavanilles v Spain

(2000) 29 EHRR 109

. In particular he relied on paragraph 37 in Miragall the first sentence of which provides:

“Since the issue concerns the principle of legal certainty, it is not merely a problem of interpretation of a legal provision in the usual way but of an unreasonable construction of a procedural requirement which prevented a claim for compensation being examined on the merits and thereby entailed a breach of the right to the effective protection of the courts. ”

[16]In Perez particular reliance was placed on paragraph 45 which states:

“The rules on the time limits for appeals are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty. Those concerned must expect those rules to be complied. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy.”

[17]I have no difficulty with the above propositions as such. But it is important to keep in view certain important considerations. First, the above cases were concerned with litigants who had rights which they were seeking to enforce; in the instant case the landlord is exercising the right which he would normally have of notifying an increase in rent, and the tenant’s right to prevent that increase only exists if the procedure laid out by statute is implemented. This is not in my view a true access to justice case. Second, one must keep in view the interests to be protected which are both those of the landlord and the tenant. Third, as far as I can see, legal certainty as a concept does not point to preferring one meaning of ‘refer’ to another. Indeed, I would understand the concept of legal certainty being referred to in the above authorities relating to there being at some stage an end to litigation which is provided for by having rules and time limits. Even if the principle is wider than that, and even if it might have been more certain to explain what ‘refer’ was intended to mean, once one knows what the meaning is then there is no difficulty about the certainty.

[18]It may be that in his concept of legal certainty Mr Robert Latham intended to include consideration of whether one meaning or another would lead to more problems when a decision had to be taken as to whether the notice had been received or whether it had been despatched. As debate in court demonstrated it was possible to contemplate problems whatever the right interpretation, but for the RAC it would clearly be highly inconvenient if it had to consider whether it had jurisdiction over disputes about which it in fact had no notice at all.

[19]In any event my starting point is to consider what the word ‘refer’ means in its ordinary natural meaning in the context of this statute. I agree with the judge and the RAC, that more naturally the word ‘refer to’ connotes ‘receipt by’. Mr Latham showed us definitions in the 1993 Oxford English dictionary. The first definition said to be relevant, 4a “Commit or hand over (a question, cause, or matter) to some authority for consideration, decision, execution, etc.” supports the above view. That definition, Mr Latham suggested, should be rejected in favour of the definition at 7, “Send or direct to a person, book, or other source for information. Also, direct to a fact, event, etc., by drawing attention to it.”

[20]Mr Latham suggested that the second definition was in his favour. I do not myself think that it is. The second definition is using ‘refer’ in a quite different sense. Certainly, if I refer to a fact or event, I am doing something quite different from referring a matter for consideration by a tribunal. If I send or direct someone to a book or other source for information, that is quite different to referring a matter for adjudication. The Oxford dictionary definitions tend in my view to support the argument of Mr Morshead and what I have described as natural meaning.

[21]The most persuasive argument of Mr Latham was based on the authority of Nash v Ryan Plant International Limited

(1977) ICR 560

. Section 21 of the Redundancy Payments Act 1965 provided:

“Notwithstanding anything in the preceding provisions of this Part of this Act, an employee shall not be entitled to a redundancy payment unless, before the end of the period of six months beginning with the relevant date, - (a) the payment has been agreed and paid, or (b) the employee has made a claim for the payment by notice in writing given to the employer, or (c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to a tribunal in accordance with regulations made under Part III of this Act.”

[22]The relevant regulations made under Part III of that Act provided under “Rules of Procedure” for the originating application to be ‘sent’. The question in Nash was whether posting prior to the relevant date was sufficient for the purposes of referring the matter to the tribunal, the notices in that case not having been received until after the relevant date. Phillips J giving the judgment of the appeal tribunal said this at 564 at F:

“In the sphere of transfer the meaning of some words is clear and of others more doubtful. We think that words such as “deliver” or “present” ordinarily require that the transfer shall be completed. Words like “send” or “despatch” do not. The argument on the appeal and our own first reactions to the word “referred”, seem to suggest that its meaning is imprecise, and that it is very much coloured, as meaning either “send” or “present,” according to the context in which it is found. For example, we think that if a manager, being asked by a friend what solution he had found to some problem with which he was dealing, having decided to seek advice and for that reason dictated and signed a minute to accompany it to his managing director were to say, “I have referred it to the managing director,” that would be accurate albeit the document and the minute had not yet reached the managing director. Support for the view that the word “referred” in section 21(c) was not intended necessarily to require the document to have been delivered may be found in the fact that section 21(b), which plainly requires delivery, expressly says so. Further, the absence of any escape clause when section 21 was first enacted would favour a construction which enabled despatch to be sufficient compliance with the section. Looking at section 21 alone we should regard the meaning of the words as unclear. However, the section requires the reference to be made in accordance with regulations made “under Part III of this Act.”

No doubt the regulations must be construed in the light of the Act, which is paramount; and, if the wording of the Act were clear, no wording of the regulations which prescribed a procedure inconsistent with that wording could be ultra vires. But where, as we think, the wording of the Act is unclear, in that the word “referred” is capable of more than one meaning, it seems to us that it is legitimate to seek guidance as to the meaning from the language of the regulations in force at the material time. The word in rule 1(1) of the Regulations of 1974 is “sending.” The verb “to send” has various meanings. It may mean to despatch, or to despatch so that in the ordinary course of post the missive would arrive, or to despatch so that it is received. The first or the second meaning would be sufficient for the employee; the third would not. Though these various meanings are possible, there is no doubt that the ordinary meaning, and therefore in the absence of special circumstances the appropriate meaning, is to despatch: see Retail Dairy Co. Ltd. V Clarke [1912] 2 K.B. 388 and Sandland v Neale [1956] 1 Q.B. 241. So we are here dealing with a provision which requires a question to be referred within a particular period by a written application being sent. It seems to us that the time requirement is satisfied if within that period the application is sent albeit it is not received. Mr Purse has told us that so far as the Secretary of State can tell such a view would not produce practical inconvenience, and it seems to us that there are advantages in it. It is a view which has received the support of an industrial tribunal in another case: McCutcheon v Sykes-Macfarlane Ltd. (1967) 2 I.T.R. 621, and of Professor Grunfeld, The Law of Redundancy (1971), p. 265, though in neither case with any supporting argument. For the reasons given, we think that view is correct and we therefore allow the appeal and remit the case to be heard.”

[23]In reliance on the above Mr Latham points to the fact that under section 13(4) there is no escape clause so far as a tenant is concerned. Mr Latham would also pray in aid the note on the prescribed form 5 which the tenant has to fill in. Mr Latham submits that as in Nash where the subsidiary legislation provided a guide to the meaning, so here, where a form is produced pursuant to subsidiary legislation referred to in the relevant primary legislation, that will provide a guide to the meaning. I should say that the relevant subsidiary legislation in its present form was in no different form when passed contemporaneously with the 1988 Act. The importance of this escape clause he says is emphasised in the case which later distinguished Nash, i.e. Secretary of State for Employment v Banks

(1983) ICR 48

where Neill J, giving the judgment of the Employment Appeal Tribunal, held that it was the escape clause which had led to the decision in Nash. Under the Employment Protection (Consolidation) Act 1978 with which Banks was concerned there was an escape provision and that led to ‘refer’ meaning ‘receipt’ as appears from Neill J’s judgment at page 50.

[24]Mr Latham put his argument very attractively and forcefully. Assume a dramatic increase in rent is proposed by the landlord, and assume a tenant posted the required notice 10 days before the relevant date but the notice became lost in the post. In such circumstances the RAC has no discretion to extend time. That, he submitted, would be most unfair on the tenant who had done everything reasonable to bring into play the machinery under section 13. How could it be right, he asked, that the tenant should be denied the opportunity to challenge the rent? It was reasonable to interpret ‘refer’ as ‘despatch’ as Phillips J had done in Nash, and in the light of the notes on the form. Despatch is the interpretation that the court should place on the word in section 13(4).

[25]There are important distinctions between the position of the employees being considered in Nash and the assured tenant that we have to consider under section 13(4). First, the employees were in a situation in which prima facie they had a claim, but the procedural rule would have denied them that claim if ‘refer’ was to be construed as ‘receipt’ because there was no escape clause. Second, in Nash the absence of the escape clause simply led to the word ‘refer’ becoming ambiguous; it was not that absence which led to ‘refer’ being given the meaning ‘send’.

(c) of The Redundancy Payment Acts 1965 in the following terms:

“referred to a tribunal in accordance with regulations under Part III of this Act.”

With that language in the primary legislation it was not difficult to use the subsidiary legislation as an aid to interpretation.

[26]In relation to an assured tenant seeking to take advantage of section 13(4), the tenant has no right unless and until the machinery is invoked. The absence of an escape clause is therefore much less potent. The subsidiary legislation under which the prescribed form was produced is furthermore not referred to in a way which allows the notes to be used as an aid to construction.

[27]The current prescribed form of tenant’s application is form 5 in the Assured Tenancy etc (Forms) Regulations 1997 (SI 1997 No. 194) (now amended by SI 2002 No 337). This significantly post dates the 1988 Act and the relevant regulations as of 1988 were SI 1988 2203. For the moment, assuming in favour of Mr Latham that he could gain the same assistance from the 1988 regulations, which is disputed by Mr Morshead (see paragraph 27 of the respondent’s skeleton), the problems facing Mr Latham attempting to rely on any note on form 5 are insurmountable. First, the Form Regulations were not made under section 74 of the Rent Act 1977 which is the substantive Rule making power under which the Secretary of State may make regulations prescribing not only the “form of any … application …” but also “the procedure to be followed … by Rent Assessment Committees whether under this Act or otherwise.” If the form had been prescribed under regulations to that section, and if in the body of the form ‘despatch’ or ‘sending’ had been provided for, then there might have been the beginning of an argument for Mr Latham. Even then he would have been faced with the dictum of Viscount Dilhorne at pages 884D – 885C in Jackson v Hall

[1980] AC 854

. That dictum would suggest that prescribed forms generally cannot be an aid to the construction of a statute. But what Mr Latham has to rely on in this case is a note intended to be of assistance to the person filling in the form on a form produced under regulations which simply identify the prescribed forms provided for by, inter alia, section 13(4). Such a note simply cannot be used as an aid to construction of the primary legislation.

[28]It follows that in contrast to the position in Nash when considering section 13(4) no reliance can be placed on the note on form 5.

[29]I am accordingly quite unpersuaded that ‘refer’ can be given anything other then its natural meaning in section 13(4). Mr Latham sought to gain some support from the fact that important textbooks in this area express no view on the meaning of ‘refer’ e.g. The Encyclopaedia of Housing; Law and Practice; Woodfall “Landlord and Tenant” and Hill and Redman “Law of Landlord and Tenant”. In my view more is to be gained from the fact that the editor of Megarry’s Assured Tenancies (2nd edition, 1999) at paragraph 17-16 expresses the view consistent with what I have called the ordinary meaning of the word ‘refer’.

[30]Support for the view is also gained from the following practical points. First, it is the referring of the notice to the RAC which imposes on the RAC a statutory duty to determine the rent, absent written agreement between the parties. How can the RAC be expected to comply with that duty without knowledge of the notice that is being referred to them? Second, in the course of giving effect to that duty, the RAC must start a process so that the matter can be argued out as between landlord and tenant. Even without reference to any regulations, obviously it must be up to the RAC to inform the landlord in order to commence that procedure, because there is no obligation on the tenant to inform the landlord of any dispute in relation to the rent proposed by the landlord. This obligation on the RAC is clarified by regulation 2(2) of the 1971 regulations which requires the RAC to serve a copy of the reference made by the tenant on the landlord, imposing no obligation on the tenant to have done so.

[31]If the natural meaning of the word ‘refer’ is as I have indicated, is there any other argument open to the appellant? It was suggested by Mr Latham, albeit rather tentatively, that if the construction of the word ‘refer’ was as I have indicated, that would involve there being a breach of the rights of the appellant under the Human Rights Convention. That, Mr Latham would suggest, would lead to the court having to consider whether by virtue of section 3 of the Human Rights Act 1998 some reading down in favour of the appellant should not take place.

[32]The only suggested infringement of a Convention right involves an alleged infringement of Article 6. Article 6(1) as is well known provides:- “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing, within a reasonable time by an independent and impartial tribunal established by law.”

[33]Thus the argument has to be that by construing section 13(4) as ‘receipt’ rather than ‘despatch’ the court will be preventing the determination of the civil rights of the appellant. The appellant however does not have a right to have her rent determined other than by contract or by statute. The tenant has no right by virtue of any contract and she only has the right by virtue of the statute if the procedure laid down by the statute is adopted. To have a procedure which has to be followed to obtain a right is not a denial of a right. Section 3 cannot assist the appellant.

[34]On the crucial issue this appeal must be dismissed.

[35]In those circumstances it is unnecessary to consider whether if despatch or posting had been the appropriate construction, there also ought to have been implied into that construction some obligation to post so that receipt was achieved in the ordinary course of post. Furthermore, it is unnecessary to consider the other issue on this appeal i.e. whether the RAC were right in concluding that there was no evidence that the appellant had in fact posted the notice in this case. I would however add by way of some comfort to the appellant that if the last point had arisen, my inclination would have been to refer the matter back to the RAC to consider the evidence as to whether there was in fact posting.

[36]It would be wrong to leave this appeal without some further comment in relation to the note on form 5. Following the report of Sir Andrew Leggatt relating to Tribunals there has been published by the Council on Tribunals a framework of Standards for Tribunals. That emphasises that forms should be short and simple and “where there are timetables e.g. for the submission of documents, they should be made clear.” Furthermore I would suggest that the result of any failure to comply with specified procedures should also be made clear. In the instant case it is puzzling how the problem that has arisen on this appeal has not occurred before. The note on form 5 which says “sent” would seem to indicate that despatch or posting is sufficient. The note certainly does not make clear that ‘receipt’ is mandatory; it does not make clear that the RAC has no discretion to extend time; and it does not make clear that the effect of any failure of the RAC to receive prior to the relevant date will lead automatically to the rent proposed by the landlord taking effect without more. Notes on this form should say in bold letters that delivery to the office of the RAC prior to the relevant date was mandatory, that there was no discretion to extend time, and that the effect of non-receipt by the RAC before the relevantdate would be that the rent proposed by the landlord would be the rent from the relevant date.

[37]I agree for the reasons given by Waller LJ that this appeal should be dismissed.

[38]I agree that this appeal has to fail. I do not think, any more than I believe the other members of the court do, that this is necessarily a just outcome. It results simply from the fact that this court cannot (even if it felt equipped to) rewrite the present unsatisfactory legislative scheme for contesting a rent increase. The only surprising thing about the problem thrown up by the present case, as Lord Justice Waller has observed, is that it has not reached the courts before now.

[39]Miss Lester did what any reasonable tenant would do, namely assume that posting her application by first class post to the Rent Assessment Committee on 18 March 2002 was sufficient to comply with the requirement that it should have been referred to the Committee before the 20th. In this connection I consider that the Committee was unjustified is saying that it had no evidence of such posting. It had not only Miss Lester’s uncontroverted assertion but the fact of receipt two days later. The question is whether this amounted to a referral notwithstanding late arrival. I am prepared to accept that this is a true question of access to justice, but for the reasons which follow I do not think that this fact can modify the answer.

[40]I find difficulty in agreeing that ‘refer’ in its present context has an ordinary or natural meaning. As used, it seems to me to be a protean and problematic word. What in my view determines its present meaning is the fact that referral in this statutory scheme does more than initiate a consideration of the rent by the Committee. It freezes the legal right generated by service of the landlord’s notice to recover the increased rent. Yet if posting is enough to constitute referral, the effect must be the same whether the form is delayed in delivery or lost altogether. It must also be enough, on this hypothesis, to hand the form to someone else to deliver, with the same risks of loss or non-delivery. If so, not only might the Rent Assessment Committee become legally seized of an application of which it had no knowledge, but both the tenant’s and the landlord’s legal rights would be altered by it, again without the latter’s knowledge. Not least in the interests of legal certainty, none of this is acceptable.

[41]Nor, however, are the present arrangements. In his report Tribunals for Users (March 2001) Sir Andrew Leggatt recommended a unitary provision based on the Council on Tribunals’ model rules. These now require an appellant to send or deliver the notice “so that it is received at the appropriate office” by the necessary date. They add a discretion to enlarge time where to do so is reasonable and would cause no substantial injustice. This model is not problem-free either. Without a presumption of delivery in the ordinary course of the post (which today means specifying what that is), it leaves the risk of non-delivery on the applicant. While it may be simple enough in a major city to insure against such a risk by hand-delivering the application, it is certainly not so for people living in rural or remote places. But to lift the risk by presuming delivery encounters the very problem we have been addressing in this case – and a conditional ancillary power to enlarge time may simply replace one set of problems with another. One can see why the commendable principles now found in the Council on Tribunals’ Framework of Standards for Tribunals (November 2002) – that “Where there are timetables, e.g. for the submission of documents, they should be made clear”, and that “There should be a clear time limit for lodging all papers” – are necessary but in no way sufficient. More thought needs to be given to providing some form of – possibly electronic – assured receipt of applications of this kind, so that an effective referral is within everyone’s reach.

Order

appeal dismissed with costs; matter remitted to the costs judge for determination as to the liability of the Legal Services Commission.