Rafiul Islam v Thanet District Council [2025] UKUT 281 (LC)

[2025] UKUT 281 (LC)Case No LC-2025-131
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
Between
MR RAFIUL ISLAMAppellantTHANET DISTRICT COUNCILRespondent
AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)
Ref: CHI/29UN/HNA/2024/0015
19 August 2025
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
HOUSING – CIVIL PENALTY – First-tier Tribunal’s discretion to extend time for appeal – whether refusal to extend time was disproportionate to the severity of the default - Denton v TH White Ltd [2014] 1 WLR 3926 and the considerations to which the First-tier Tribunal should have had regard
19 Westcliff Road,Margate,Kent, CT9 5DNJudge Elizabeth CookeDetermination by written representations© CROWN COPYRIGHT 2025The following cases were referred to in this decision:B PP Holdings v Commissioners for Her Majesty’s Revenue and Customs[2017] 1 WLR 2945Denton v TH White Ltd[2014] 1 WLR 3926Jalay Enterprises Ltd v Ramsdale[2023] UKUT 247 (LC)

Introduction

[1]This is an appeal by Mr Rafiul Islam from the decision of the First-tier Tribunal not to grant him an extension of time to appeal from a financial penalty imposed by the local housing authority. It has been decided under the Tribunal’s written representations procedure. The appellant has not been legally represented. Written representations in response to the grounds of appeal were made for the Thanet District Council by a senior housing officer; but the council has not filed a respondent’s notice; I refer to it as “the respondent” for brevity, but it is not a party to the appeal.

The background and the FTT’s decision

[2]Section 249A of the Housing Act 2004 enables a local housing authority to impose a civil penalty, also known as a financial penalty, upon a person who has committed one of certain housing offences, as an alternative to prosecution. Schedule 13A to the 2004 Act sets out the procedure for imposing a penalty, including the service of a Notice of Intent to impose a penalty and then a Final Notice. Paragraph 10 of that schedule provides that there is an appeal from the imposition of a penalty to the FTT.[3]Paragraph 10 of Schedule 13A does not specify a time limit for the appeal of a Financial Penalty to the Tribunal. However, Rule 27 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 states: Where the notice of application relates to a right to appeal from any decision (including any notice, order or licence), the applicant must provide the notice of application to the Tribunal within 28 days after the date on which notice of the decision to which the appeal relates was sent to the applicant.[4]The FTT has a discretion to extend time if an application is made outside that 28 day time limit.[5]The respondent sent to the appellant a final notice, imposing a financial penalty of £7,500, dated 30 May 2024. The appellant’s application to the FTT was received on 22 July 2024, just over three weeks out of time. The FTT conducted a hearing on 8 January 2025 to decide as a preliminary issue whether an extension of time should be granted.[6]The appellant gave six reasons why an extension of time should be granted, each of which the FTT rejected: i. The appellant said he had acted in good faith and sought guidance about the appeal from the FTT. The FTT agreed that on 3 July 2024 he emailed the FTT stating that he wished to appeal the penalty and asking for the penalty to be withdrawn, but pointed out that by then he was already out of time. He had followed that up on 11 July asking which form to complete. The FTT said that since he was already out of time on 3 July his reason was “not made out.” ii. The appellant said that he found the process of appeal confusing. The FTT rejected that reason because the Final Notice stated clearly the time for appeal, and because the respondent also informed him about the time limit some two weeks before it expired. iii. The appellant said he never received the Notice of Intention to impose a financial penalty, and said that that prevented him from responding within the correct time frame. The FTT rejected this because events prior to the Final Notice were not relevant. iv. The appellant said he had acted in good faith and applied promptly once he had understood the procedure, and that the penalty would cause him financial hardship. The FTT said that “a considerable period of time” elapsed before the appellant made his application and that its financial status was irrelevant; and it observed that there was no evidence that he had sought legal or professional advice. v. The appellant said that there would be no prejudice to the respondent if he were granted an extension of time, and that principles of justice required both parties to have the case determined on its merits. The FTT said that on the contrary the respondent would incur time and cost in defending the appeal, and that in light of that prejudice, bearing in mind the overriding objective to decide cases fairly and justly, time should not be extended. vi. The appellant said that he had substantive grounds for appealing the penalty which should be properly looked into. The FTT said that this was not relevant to the reasons for the late application.[7]The FTT concluded:
“26. The onus in this matter is on the Applicant to establish the reasons for the delay in submitting an appeal and to prove that such reason is a good reason. Having regard to all of the circumstances of the matter, and whilst I accept that the Applicant found the process daunting, lacked experience in dealing with such matters and was concerned at the quantum of penalty, I am not satisfied that the Applicant has provided good reasons for the failure to appeal before the end of 28 days. Accordingly, I dismiss the application.”
[8]The appellant appeals with permission from this Tribunal.

The appeal

[9]The approach which should be taken by the FTT to procedural defaults was considered by this Tribunal in Jalay Enterprises Ltd v Ramsdale [2023] UKUT 247 (LC), where at paragraph 1 the Deputy President said “For a court or tribunal to debar a party from participating in the final hearing of a claim brought against them is a draconian step. Sometimes where, by their conduct, a party has prevented the tribunal from determining the claim in a way which is fair to both sides and to others whose cases are waiting to be heard, it may be necessary to impose such an extreme sanction. But in general, and especially where the claim involves allegations of criminal conduct and may result in a substantial financial penalty, the interests of justice require that both parties be given a full opportunity to participate in the proceedings.”[10]The Court of Appeal in Denton v TH White Ltd [2014] 1 WLR 3926 gave guidance about the approach to be taken to procedural defaults in the courts, and the Supreme Court in BPP Holdings v Commissioners for Her Majesty’s Revenue and Customs [2017] 1 WLR 294 has indicated that all tribunals should follow that guidance. Accordingly the FTT’s decision should have been made after considering the matter in three stages: i. assessing the seriousness of the relevant failure to comply with a tribunal rule or procedure; ii. considering why the default occurred; iii. and evaluating all of the relevant circumstances to enable the tribunal to deal fairly and justly with the case.[11]It is important that a consistent approach is taken by all tribunals to avoid unfairness. It is not clear that the FTT in this case had the relevant principles in mind. In particular, it appears to have considered only whether the appellant had provided a good reason for the delay in making his application; its approach seems to have been that if there was no good reason for delay then the FTT’s discretion could not be exercised in the appellant’s favour.[12]In particular, the FTT appears to have given little or no consideration to the relevance of the applicant’s email contact with the FTT a few days after the expiry of the time limit in which he explained that he wished to appeal the penalty notice. If the appeal is taken as having been commenced on that date the period of delay was trivial; even by 22 July the period of delay was not lengthy and a properly directed decision maker might have regarded it as less than serious. Nor does the FTT appear to have taken into account that the consequence of refusing to admit the appeal would be that a significant penalty would be imposed on the appellant without any judicial consideration at all.[13]The FTT was also in error about the appellant’s fifth reason, namely the lack of prejudice to the respondent. The issue there is not whether it would be expensive for the respondent to defend the appeal, but whether the cost or other prejudice would be any greater by virtue of the appeal being made late. In the present case a delay of just over three weeks could not have made any difference to the respondent in terms of the cost, in time or money, of participating in the FTT proceedings.[14]The FTT was of course making a discretionary decision whether to extend time, and the Tribunal cannot interfere unless the FTT made an error of law or unless it can be seen that the decision was irrational. In this case the FTT failed to take into account material considerations, and the decision is set aside.

The Tribunal’s decision

[15]The Tribunal substitutes its own decision that time is extended for the appellant’s appeal to the FTT. Looking again briefly at the three Denton considerations: first, the delay was short and caused no prejudice to the respondent; it was not a serious procedural default. Second, the appellant’s reasons for being late were not the best; he failed to give proper consideration to the information he was given in the Final Notice and as a result got it wrong. And third, as to an evaluation of the relevant circumstances, the financial penalty was significant to the appellant, and to refuse to admit his appeal on the basis of a minor default was disproportionate.[16]Time is therefore extended; either party may ask the FTT for directions in order for the proceedings to recommence. Right of appeal

Cited in 1 later judgment