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Tribunal procedure

Application

Time limits - application sent by post

Salehabady v Trustees of the Eyre Estate
[2017] UKUT 60 (LC)

Summary

The relevant date for the purposes of when an application under s48(2) of the Leasehold Reform Housing and Urban Development Act 1993 is made is the date that it was posted to the Tribunal, correctly addressed and stamped.

Relevant statutory provisions

Section 48(2) of the LRHUD Act 1993 provides that:
    “(2) Any application … must be made not later than the end of the period of six months beginning with the date on which the counter-notice or further counter-notice was given to the tenant.”
Rule 26(1) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 provides that:
    “(1) An applicant must start proceedings before the Tribunal by sending or delivering to the Tribunal a notice of application.”
Facts

A leasee (T) was potentially entitled to an extended lease under Chapter II of Part I of the LRHUD Act 1993. The relevant notice and counter-notice were given. The 6-month period for T to make his application to the Tribunal expired on 21 April 2016. On 18 April 2016 T’s legal representative posted an application to the Tribunal by first class. The application was not received by the Tribunal until 9 May 2016.

First instance

At a paper hearing to determine jurisdiction, the First-tier Tribunal (FTT) held that it had no jurisdiction to hear the claim. It also concluded that there was no evidence before the Tribunal that T’s representative had posted the application on 18 April 2016.T’s representative had asserted as much in his written representations to the Tribunal, but there was no formal evidence to support the assertion available at the paper hearing. T appealed to the Upper Tribunal.

Issues
  • Whether the Tribunal had applied the wrong test by focusing on the day when the application was received, rather than the date on which it was posted.
  • Whether the Tribunal had erred procedurally by dismissing T’s representative’s assertion that he had posted the application without giving him the opportunity to file evidence in support and for that evidence to be tested on cross examination.
Decision on appeal

The Upper Tribunal allowed the appeal.
  • The word “made” in section 48(2) of the 1993 Act referred to a unilateral act by the applicant. Further, rule 21(1) of the First Tier Tribunal Procedure Rules provided two methods for starting proceedings: “sending” or “delivering” a notice of application to the Tribunal. Either of those two acts was sufficient to start the proceedings. Therefore, an application will be considered “made” on the day of “the posting of a correctly addressed (and sufficiently stamped) notice of application to the FTT”. This is so, even if the application notice is delayed in the post or does not arrive.
  • The Upper Tribunal held that the FTT were not bound to accept the representative’s assertion that he had posted the letter on time, but, if it was not so inclined, the proper course was to require the representative to provide a witness statement and attend for cross examination. It was not open to the FTT to simply reject his assertion out of hand. The factual issue of the date of the posting of the application notice was remitted to the Tribunal. The Upper Tribunal recognised that, whereas a certificate of postage was the best method of proving that a document has been sent, it was not the only method.
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