82 Torrington Road, Ruislip LON/00AS/HMB/2019/0005

FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No LON/00AS/HMB/2019/0005
Between
Mrs A Byrne and Mr C ByrneApplicantMr R H C Preston , acting by his attorneys Mrs A Poulton and Mr R PrestonRespondent
Before
Judge PittawayMr M Cairns MCIEHIn person for the ApplicantThe Sethi Partnership, solicitors for the RespondentDate 17 March 2020Property: 82 Torrington Road, RuislipType of application: Application for costs Judge Pittaway

DECISION

[1]The tribunal determine that the respondents had reasonable grounds for believing that the tenants had surrendered/abandoned the property on 26 September 2018.[2]Accordingly, the tribunal determine that it does not have jurisdiction to consider an application made by the applicants on 30 September 2019, as this application was made more than twelve months after 26 September 2019.[3]If it had been necessary to do so, the tribunal would have found that the respondent had not committed an offence under section 40(3) of the 2016 Act; the applicant has not proved beyond reasonable doubt that the respondent has committed an offence under Section 1 (2), (3) or (3A) of the Protection from Eviction Act 1977 as alleged. The application[1]On 30 September 2019 the Tribunal received an application under section 41 of the Housing and Planning Act 2016 (“the 2016 Act”) for a Rent Repayment Order (“RRO”) in respect of 82 Torrington Road Ruislip (‘the Property’) on the basis that the landlord had committed an offence under the Protection from Eviction Act 1977.[2]The application had been brought by Mrs Byrne, who claimed rent in respect of the period from September 2017 to September 2018 from the respondent. During this period the applicants the rent payable was £1,900 per month, part of which was paid by way of housing benefit.[3]The applicants occupied the property under an assured shorthold tenancy dated 30 May 2017 (for a term of one year to 31 May 2018) and then under a renewed assured shorthold tenancy dated 24 May 2018. Both tenancy agreements contained a mutual break clause, exercisable by either party on two months’ notice after the first four months of each tenancy had elapsed.[4]On 9 October 2019, the Tribunal issued Directions, which named the respondent as Mrs Anne Poulton represented by Mr Robert Preston under a Power of Attorney. The directions set out the issues which the Tribunal would need to consider. The respondent was advised to seek independent legal advice. Both parties were directed to file bundles of documents with the Tribunal which they have done. Background[5]The property is an unfurnished four bedroom house. The tribunal heard evidence that the property had been refurbished immediately prior to the applicants taking occupation with new carpets, a new kitchen and family bathroom. The tribunal had before it in the bundles photographs of the property.[6]Neither party requested an inspection and the tribunal did not consider that one was necessary. The hearing[7]The hearing took place on 29 January. The applicants appeared in person. The respondent was represented by Ms Kelleher of counsel.[8]From the copy tenancy agreements in the bundles it was clear to the tribunal that both Mr and Mrs Byrne were the tenants under the tenancy agreements and with the parties agreement the tribunal added Mr Byrne as an applicant, pursuant to Rule 10(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (the “Rules”)[9]The bundle provided by the respondents made it clear that Mrs Poulton and Mr R C Preston hold an enduring power of attorney dated 5 April 2007 for their father, Mr R H C Preston. Mr R H C Preston has therefore been substituted as respondent pursuant to Rule 10(1). It is noted that he is acting by his attorneys, Mrs Poulton and Mr R C Preston.[10]The tribunal heard evidence from the applicants, Mrs Poulton and Mr R C Preston. Mr Byrne and Ms Kelleher made submissions on behalf of the applicants and the respondent respectively.[11]The tribunal has had regard to the witness statements in the bundles, the evidence it has heard and the submissions on behalf of the parties in reaching its decision. As appropriate these are referred to in the reasons for the tribunal’s decision. The law[12]The relevant legal provisions are set out in the Appendix to this decision. The tribunal’s decision and reasons Jurisdiction[13]By section 41(2) of the 2016 Act a tenant may only apply for a RRO if the offence was committed in the period of twelve months’ ending on the day when the application was made.[14]In the Applicant’s Response to the Respondent’s Bundle Ms Byrne states that she offered to hand deliver the application to the tribunal. In fact she was told by the tribunal that it was sufficient to post the application and she states that she posted the application and fee by first class post on the morning of Friday 27 September. The application was received by the tribunal on 30 September 2019.[15]In Ms Kelleher’s submission the tribunal cannot look at events that occurred more than twelve months before the application was made. She submitted that the tribunal had no jurisdiction to go behind the date that the tribunal received the application which she agrees was 30 September 2019.[16]In the “Applicant’s Response to the Respondent’s bundle” Ms Byrne states, at paragraph 2) on page 1, that the “12-month time limit for one of the key events would be ending that weekend”. She invited the tribunal to rely on Rule 15(2).[17]Rule 15(2) relates to dates set out in directions for undertaking acts; it does not extend the period within which an application can be made to the tribunal under section 41(2) of the 2016 Act.[18]It appears to the tribunal that in advising Ms Byrne to post the application the tribunal had in mind the Upper Tribunal decision in Salehabady v Trustees of the Eyre Estate [2017] UKUT 60 (LC) in which it was held an application is made when posted. Ms Kelleher was not correct in submitting that the application was only made on 30 September 2019 when the application was received. It was made on the day (27 September) that Ms Byrne posted the application to the tribunal.[19]The tribunal therefore has to decide when the tenancy of the property ended. If it ended before 27 September 2018 the tribunal does not have jurisdiction to consider the application as it does not have jurisdiction to consider offences committed more than twelve months before the application was made, as by Section 41(2) of the 2016 Act a tenant may only apply for a RRO if the offence relates to housing that at the time of the offence was let to the tenant. When did the property cease to be let to the applicants?[20]The parties agree that by 30 September 2018 the tenancy had ended but they disagree as to the actual date that it ended. If it had not ended by 27 September 2018 the applicants’ application was made in time. If it ended before then the application was made out of time.[21]It is agreed by the parties that the locks of the property were changed on 28 September 2018. It is the applicants’ submission that they had not given up occupation of the property on that date and that they intended to return over the weekend to remove their remaining belongings and tidy the property. The applicants claim that they had no intention to vacate the property until 30 September 2018, and point the tribunal to their e mail of 10 September to Tricia Brannigan of Lawrence Rand in which they stated, “we should be out by the end of this month…”.[22]The tribunal heard evidence from Mrs Poulton that she was told by a neighbour that a removal van had been at the property on 26 September 2018. This is what caused the respondents to put a letter through the letter box of the property, in which they advised the applicants of their intention to inspect the following day.[23]Mrs Poulter and Mr Preston both gave evidence that they believed that the tenants had vacated the property permanently on 26 September. In her witness statement Mrs Poulton explained that on advice from the managing agent she had notified the applicants of her intention to inspect on 28 September (incorrectly referred to as 29 September in her letter) and posted this though the door. She believed the agents tried to contact the applicants without success. On 28 September Mrs Poulton and Mr Preston entered the property with the managing agent and found their letter unopened. They believed from their inspection of the property that the tenants had vacated permanently. They considered that the belongings left by the tenants were no more than rubbish or broken. On the advice of the agent an “eviction notice” was placed on the door of the property giving the tenants 4 days’ notice to contact them; otherwise the house would be cleared on 2 October. On the advice the advice of the agent the locks were changed.[24]The applicants argued that although they had vacated the property on 26 September 2018 they had not intended that their surrender of the tenancy should take effect until the end of the month. In support of this argument they referred the tribunal to the e mail of 10 September in which Mrs Byrne stated that they intended to vacate the property at the end of September. The respondents gave evidence that following the applicants vacating the property with, they believed, their belongings on 26 September they assumed that the applicants had surrendered/ abandoned the property.[25]The tribunal notes that no specific date is given in Mrs Byrne’s e mail for the termination of the tenancy; and that the actions of the respondents in posting an “eviction notice” on the property on 28 September suggests that they were uncertain as to whether the tenants had formally surrendered their tenancy. It also notes the statement in Ms Byrne’s “Applicant’s Response to the Respondent’s Bundle” she refers to “12-month time limit for one of the key events would be ending that weekend”; presumably the anniversary of the date that the tenancy ended. As 30 September 2018 was a Monday this appears to be an admission that at the latest the tenancy expired on 29 September 2018.[26]The tribunal note the letter from LB Hillingdon sent to the respondent’s solicitor which states that on 16 October 2018 Mr Byrne e-mailed L B Hillingdon, stating that they vacated the property on 26th September 2018.[27]On the face of the limited evidence before it the tribunal finds that the tenants vacated the property on 26 September 2018 and that this action ended their tenancy. it does not have jurisdiction to consider offences committed more than twelve months before the application was made. If it had been necessary to determine this, was an offence committed by the respondents at a time when the property was let to the applicants?[28]For a tenant to be entitled to apply for a RRO one of the offences listed in section 40(3) of the 2016 Act must be committed by the respondent. The applicants allege that the respondent committed an offence under Sections 1(2) and 1(3) and 1(3A) of the Protection from Eviction Act 1977 (the “1977 Act”)[29]Section 1(2) of the 1977 Act provides that a person is guilty of an offence if he unlawfully deprives a residential occupier of his occupation of the premises unless he proves that he believed, and had reasonable cause to believe that the residential occupier had ceased to reside in the premises.[30]Section 1(3) of the Protection from Eviction Act provides that a person is guilty of an offence if he acts in a manner calculated to interfere with the peace or comfort of the residential occupier or members of his household with the intention of causing the residential occupier to give up occupation of any premises.[31]Ms Byrne alleged that the respondents committed offences by harassing the family, threatening them with a Christmas eviction, being verbally abusive, failing to return their deposit which was not properly protected, entering the property before that date upon which the tenants intended to leave, retaining and disposing of certain of their belongings, attaching an invalid eviction notice to the property and demanding £7000 for repairs (some of which cost may have related to fair wear and tear by tenants over a two year period). In the event that the tribunal had had to consider the amount of an RRO some of these factors might have been relevant to their decision, as going to the conduct of the parties but they are not relevant to the present decision.[32]The tribunal has found that the respondent had reasonable cause to believe that the applicants had ceased to reside in the property by 26 September 2018. Accordingly, the entry onto the property by the respondent on 28 September 2018 and the respondent’s subsequent actions (such as changing the locks on that date) cannot amount to conduct depriving the applicants of their occupation of the property.[33]Of the other events complained others also occurred after 26 September 2018; namely the failure to return the deposit and the demand for £7,000 for repairs to the property. Accordingly, even if these events were offences for the purposes of the 2016 Act they were not committed at a time the property was let to the applicants, and therefore would not have entitled the applicants to apply for an RRO. The tribunal note the return of the deposit has already been dealt with by an adjudication under the Deposit Protection Service Dispute Resolution Rules.[34]Some of the events complained of certainly occurred during the period of the tenancy; the alleged threat of a Christmas eviction and the allegation that the respondent, acting by his attorneys was abusive.[35]In relation to Mrs Byrne’s assertion that the respondents had threatened the applicants with a Christmas eviction Ms Kelleher explained that what the respondents had done was remind the applicants of the break clause in their tenancy which would entitle the respondents to serve notice determining the tenancy effective in December 2018. It was her submission that the respondent did not threaten the applicants with a Christmas eviction but rather pointed out the break clause in the tenancy agreement. In her submission they invited the tenants to leave before such notice was served saying that the respondent would not hold the applicants to the contractual period of notice.[36]The tribunal saw an e mail from Mrs Poulton and Mr Preston dated 12 July 2018 in which they stated, “we are happy for you to find another property and move out before the notice period”; and one dated 21 July 2018 in which they said they had instructed their solicitor to serve a section 21 notice and “if you find a property soon that you which(sic) to move into then we would be more than happy to break the contract to help you”. The tribunal assumes that the section 21 notice referred to is section 21 Housing Act 1988. Again on 24 July Mrs Poulton and Mr Preston emailed stating that they were looking forward to the applicants vacating the property “at the end of the notice period” and expressing the hope that the applicants “find a property sooner rather than later so that we can have our property back as soon as possible.”[37]The applicant gave evidence that the behaviour of the respondents which has given rise to this application began in July 2018. The tribunal heard evidence from Ms Byrne that verbal abuse was alleged by the applicants to have occurred at a meeting at the property on 12 July 2018, when the respondents attended at the property with their managing agent Peter Lawrence a director of Lawrence Rand, to inspect the state of repair. They allege that this was followed by abusive e mails and in particular an abusive text from Mr Preston dated 29 September 2018. The respondents deny that any shouting or verbal abuse occurred at the July meeting or that the e mails were abusive, although they accept that from then there was a breakdown in communication between the parties. Mr Preston apologised for the text complained of, which he explained he had sent when upset, following a visit to the property on 28 September 2018.[38]The tribunal find that the above e mails and the behaviour of the respondent’s attorneys and managing agent do not amount to a threat of eviction. Generally, the tribunal do not find their conduct to have been abusive. Mr Preston’s text was unfortunate but he has apologised for sending it, and as it was sent after he had reasonable grounds for believing that the tenants had vacated the property it cannot be said to have been sent with the intention of causing the residential occupier to give up occupation of any premises.[39]The tribunal would have had to have been satisfied beyond reasonable doubt that the respondent had committed an offence. It is not so satisfied on the evidence provided to it at the tribunal. The tribunal would have found on the facts that no offence has been committed. Name: Judge Pittaway Date: 17 March 2020 Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28 day time limit, such application must include a request for an extension of time and the reason for not complying with the 28 day time limit; the tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber). Appendix of Relevant Legislation Protection from Eviction Act 1977[1]Unlawful eviction and harassment of occupier. (1)In this section “residential occupier”, in relation to any premises, means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises. (2)If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises. (3)If any person with intent to cause the residential occupier of any premises— (a)to give up the occupation of the premises or any part thereof; or (b)to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof; does acts calculated to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence. (3A)Subject to subsection (3B) below, the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if— (a)he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or (b)he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence, and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises. (3B)A person shall not be guilty of an offence under subsection (3A) above if he proves that he had reasonable grounds for doing the acts or withdrawing or withholding the services in question. (3C)In subsection (3A) above “landlord”, in relation to a residential occupier of any premises, means the person who, but for— (a)the residential occupier’s right to remain in occupation of the premises, or (b)a restriction on the person’s right to recover possession of the premises, would be entitled to occupation of the premises and any superior landlord under whom that person derives title. Housing and Planning Act 2016 40 Introduction and key definitions(1) This Chapter confers power on the First-tier Tribunal to make a rent repayment order where a landlord has committed an offence to which this Chapter applies.(2) A rent repayment order is an order requiring the landlord under a tenancy of housing in England to – (a) repay an amount of rent paid by a tenant, or (b) pay a local housing authority an amount in respect of a relevant award of universal credit paid (to any person) in respect of rent under the tenancy.(3) A reference to “an offence to which this Chapter applies” is to an offence, of a description specified in the table, that is committed by a landlord in relation to housing in England let to that landlord. Act section general description of offence 1 Criminal Law Act 1977 section 6(1) violence for securing entry 2 Protection from Eviction Act 1977 section 1(2), (3) or (3A) eviction or harassment of occupiers 3 Housing Act 2004 section 30(1) failure to comply with improvement notice 4 section 32(1) failure to comply with prohibition order etc 5 section 72(1) control or management of unlicensed HMO 6 section 95(1) control or management of unlicensed house 7 This Act section 21 breach of banning order(4) For the purposes of subsection (3), an offence under section 30(1) or 32(1) of the Housing Act 2004 is committed in relation to housing in England let by a landlord only if the improvement notice or prohibition order mentioned in that section was given in respect of a hazard on the premises let by the landlord (as opposed, for example, to common parts). 41 Application for rent repayment order (1) A tenant or a local housing authority may apply to the First-tier Tribunal for a rent repayment order against a person who has committed an offence to which this Chapter applies. (2) A tenant may apply for a rent repayment order only if – (a) the offence relates to housing that, at the time of the offence, was let to the tenant, and (b) the offence was committed in the period of 12 months ending with the day on which the application is made. (3) A local housing authority may apply for a rent repayment order only if – (a) the offence relates to housing in the authority’s area, and (b) the authority has complied with section 42. (4) In deciding whether to apply for a rent repayment order a local housing authority must have regard to any guidance given by the Secretary of State. 43 Making of a rent repayment order (1) The First-tier Tribunal may make a rent repayment order if satisfied, beyond reasonable doubt, that a landlord has committed an offence to which this Chapter applies (whether or not the landlord had been convicted). (2) A rent repayment order under this section may be made only on an application under section 41. (3) The amount of a rent repayment order under this section is to be determined with – (a) section 44 (where the application is made by a tenant); (b) section 45 (where the application is made by a local housing authority); (c) section 46 (in certain cases where the landlord has been convicted etc). 44 Amount of order: tenants (1) Where the First-tier Tribunal decides to make a rent repayment order under section 43 in favour of a tenant, the amount is to be determined in accordance with this section. (2) The amount must relate to rent paid during the period mentioned in this table. If the order is made on the ground that the landlord has committed the amount must relate to rent paid by the tenant in respect of an offence mentioned in row 1 or 2 of the table in section 40(3) the period of 12 months ending with the date of the offence an offence mentioned in row 3, 4, 5, 6 or 7 of the table in section 40(3) a period, not exceeding 12 months, during which the landlord was committing the offence (3) The amount that the landlord may be required to repay in respect of a period must not exceed – (a) the rent in respect of that period, less (b) any relevant award of universal credit paid (to any person) in respect of rent under the tenancy during that period. (4) In determining the amount the tribunal must, in particular, take into account – (a) the conduct of the landlord and the tenant, (b) the financial circumstances of the landlord, (c) whether the landlord has at any time been convicted of an offence to which this Chapter applies. --- decision_2.pdf --- © CROWN COPYRIGHT FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AS/HMB/2019/0005 HMCTS code : P: PAPER Property : 82 Torrington Road, Ruislip Applicant : Mrs A Byrne and Mr C Byrne Representative : In person Respondent : Mr R H C Preston, acting by his attorneys Mrs A Poulton and Mr R Poulton Representative : The Sethi Partnership, solicitors Type of application : Application for costs Tribunal members : Judge Pittaway Mr M Cairns MCIEH Date of decision : 3 September 2020 DECISION 2 Covid-19 pandemic: description of hearing This has been a remote hearing on the papers. The form of remote hearing was P:PAPERREMOTE, A face-to-face hearing was not held because the tribunal considered that the application might be determined by summary assessment, pursuant to rule 13(7)(a), without a hearing, on the basis of the written submissions from the parties unless any party requested a hearing and neither party did. Submissions were received by e mail from both parties, The documents that the tribunal referred to are in a bundle of 216 pages received from the respondent, the contents of which the tribunal has noted. The decisions made and reasons are set out below. Decisions of the tribunal[1]The tribunal make no order for costs under rule 13(1)(a) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.[2]The tribunal do not set aside or re-make the whole or any part of their decision under rule 51 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.[3]The tribunal make no order for costs under rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. Preliminary[4]By a letter dated 14 April 2020 and sent to the tribunal and to the applicants by e mail the respondent seeks an order for costs under section 29(4) Tribunal Courts and Enforcement Act 2007 (the ‘2007 Act’) and rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (“The Rules”).[5]Rule 13(6) of the Rules provides that the tribunal may not make an order for costs against a person without first giving that person an opportunity to make representations.[6]Accordingly, by directions dated 18 May 2020 provision was made for the respondent to provide a statement setting out his case with legal submissions and full details of the costs being sought and for the applicants to provide a statement in response.[7]In particular, the respondent was asked to specify why he alleged that the applicants had acted unreasonably in bringing, defending or conducting proceedings and why this behaviour is sufficient to invoke the Rule, dealing with the issues identified in the Upper Tribunal decision in Willow 3 Court Management Company (1985) Ltd v Mrs Ratna Alexander [2016] UKUT (LC) (‘Willow Court case’), with particular reference to the three stages that the tribunal will need to go through, before making an order under Rule 13.[8]On 25 May 2020 the applicants made an application to the tribunal for it to amend its decision under rule 50 of the Rules, which was refused. On 27 June 2020 the applicants asked the tribunal to consider an application to set aside its decision in whole or part under rule 51(2)(d)of the Rules, expanded on 29 June to refer to rules 51(2)(a) and (b) as well. Reasons for the tribunal’s decision[9]The power to make an order for costs under Rule 13 (1) (a) is for wasted costs under section 29(4) of the 2007 Act. That section is concerned with the conduct of a ‘legal or other representative’ of a party. The applicants were not legally represented and had no other representative so that it is not appropriate for the respondent to seek costs under Rule 13 (1) (a).[10]The applicants applied for the tribunal’s decision to be set aside under rule 51(2)(d) of the Rules on 27 June 2020. On 29 June they requested that the tribunal consider their request under rule 51 to be under rule 51(2) (a) and (b) as well. Neither of these requests was made within 28 days of the date on which the Tribunal sent its decision to the parties as required by rule 51(3). Even if the tribunal was minded to accept that their application, made on 25 May in relation to rule 50, was actually intended to be an application in relation to rule 51, this would still have been out-of-time. Further, the tribunal does not consider that there was any procedural irregularity in the proceedings and it would not be in the interests of justice for the decision to be set aside or re-made in whole or part.[11]The applicant tenants may have failed in the proceedings the subject of this cost application but that does not entitle the landlord to recover his costs under Rule 13 (1) (b). If it did there would be a risk that the tribunal would be turned into a cost shifting jurisdiction. The tribunal was created as a no- cost jurisdiction to enable both landlords and tenants to have their disputes determined without being at risk as to costs, save where a party behaves unreasonably. Both landlords and tenants are entitled to the benefit of that protection.[12]Rule 13(1)(b) provides that the tribunal may make an order in respect of costs if a person has acted unreasonably in bringing, defending or conducting proceedings in a residential property case or a leasehold case. In reaching its decision in relation to the application of rule 13(1)(b) to this application the tribunal has had regard to the guidance set out in the Upper Tribunal decision in the Willow Court case, in particular that Rule 13 costs applications ‘should not be allowed to become major disputes in their own right’ and that, ‘a decision to award costs need not be lengthy and the underlying dispute can be taken as read.’ 4[13]Following the Willow Court case the first stage that the tribunal is required to consider is whether the person has acted unreasonably. If it finds that a person has acted unreasonably it is then required to consider, in light of that unreasonable conduct, whether it ought to make an order for costs. If the tribunal decides that it should make an order for costs it then needs to decide the terms of the order.[14]The respondent alleges that the applicants acted unreasonably in persisting with their application after the respondent had pointed out to them that they were making their application in respect of a period for which the tribunal did not have jurisdiction. He also alleges that it was unreasonable to persist with an application which had criminal offence implications for the respondent.[15]The applicant tenants were entitled to bring their case to the tribunal. They believed that they were bringing a meritorious application within the time limits prescribed by section 41(2) Housing and Planning Act 2016. They were wrong but that of itself does not justify a costs order under Rule 13. They did not disobey any tribunal directions or procedures and there is no criticism of their conduct at the hearing. The tribunal’s decision was not a foregone conclusion: it turned on the evidence presented to it on the day of the hearing.[16]It is not unreasonable for the applicants not to accept that their application was out-of-time when told so by the respondent’s solicitor. They were unrepresented but there is no requirement that they should have legal representation. Lack of representation does not make their conduct unreasonable. And, as recognised in paragraph 25 of the Willow Court case, a lay person unfamiliar with substantive law may fail properly to appreciate the strengths or weaknesses of their own or their opponent’s case. In the circumstances the tribunal do not find that they acted unreasonably in not accepting that their application was being made out of time. The criminal offence implications of the tribunal finding for the applicants does not make of itself make bringing the application unreasonable.[17]Paragraph 24 of the Willow Court case states that ‘An assessment of whether behaviour is unreasonable requires a value judgement on which views might differ but the standard of behaviour expected of parties in tribunal proceedings ought not to be set at an unrealistic level……”Unreasonable “ conduct includes conduct which is vexatious and designed to harass the other side rather than advance the resolution of the case.’ The tribunal recognises that for all parties the case was fraught and emotional but do not consider that the applicants’ conduct was designed to harass the other side.[18]The tribunal is satisfied that the actions of the applicants in bringing and continuing the proceedings did not amount to unreasonable behaviour, and therefore does not order payment of costs under rule 13 (1)(b) for unreasonable behaviour on their part. 5 Name: Judge Pittaway Date: 3 September 2020 Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).