Lester, R (On the Application Of) v London Rent Assessment Committee

This appeal concerned the construction of section 13(4) of the Housing Act 1988 and whether a tenant's statutory referral of a landlord's notice proposing an increased rent is effective if the tenant despatched the prescribed referral form before the proposed increase takes effect, or only if the rent assessment committee actually received the form before that date. The court held that in the statutory context the verb "refer" bears its natural meaning of delivery or receipt by the committee: a referral requires actual receipt by the rent assessment committee before the beginning of the new period. The court rejected reliance on notes on the prescribed form as an aid to construction and declined to read the provision down under section 3 of the Human Rights Act 1998 or Article 6 of the Convention. Because the applicant's referral was not received until the date the new rent took effect, the committee lacked jurisdiction and the appeal was dismissed.

Material subsidiary findings:

• The rent assessment committee and the High Court were entitled to conclude there was no evidence of posting in the particular case; the Court of Appeal did not need to decide that factual question because it disposed of the appeal on statutory construction.
• The prescribed form notes are not a valid aid to construing primary legislation and do not alter the requirement of receipt.
• Arguments based on access to justice and Article 6 were considered but rejected because the tenant's right to challenge an increase exists only if the statutory procedure is complied with.

Background and facts:

• The appellant is an assured tenant. On 6 February 2002 the landlord served a section 13(2) notice under the Housing Act 1988 proposing an increase of rent to take effect from 20 March 2002. The landlord used the prescribed form.
• The tenant completed the prescribed referral form (dated 8 March 2002) and asserts she posted it on 18 March 2002. The rent assessment committee did not receive the referral until 20 March 2002, the date the proposed new rent took effect.

Procedural history:

• The rent assessment committee held a preliminary hearing and concluded it had no jurisdiction because the tenant's application was not received before the new rent became effective. The committee provided reasons and the tenant applied for judicial review.
• Sir Richard Tucker (sitting as a deputy High Court judge) upheld the committee's view on 7 November 2002. The tenant appealed to the Court of Appeal.

Issues framed by the court:

1. Does the word "refer" in section 13(4) of the Housing Act 1988 require actual receipt by the rent assessment committee before the beginning of the new period, or is despatch (posting) sufficient? Could a reasonable expectation of receipt suffice?
2. If "refer" means receipt, was there evidence that the tenant had posted the form so as to satisfy the committee?
3. If the statutory construction disadvantaged the tenant, could the court read down the provision under section 3 of the Human Rights Act 1998 to avoid an Article 6 breach?

Court's reasoning and conclusion:

• The Court of Appeal approached the ordinary meaning of "refer" in context and concluded that when a statute requires a matter to be "referred" to a tribunal it naturally implies delivery to and receipt by that tribunal. Practical considerations supported this: a committee cannot discharge its statutory duty to determine the rent without knowledge of the referral.
• The court distinguished Nash v Ryan Plant International Ltd (1977) ICR 560, which held that "referred" could mean despatched in the redundancy statute context, on the basis that Nash relied on subsidiary regulations expressly using the verb "send" and on a different statutory scheme. By contrast, notes on the prescribed rent-referral form (form 5) are not made under the primary regulation-making power in a way that permits using them to alter construction of section 13(4).
• Arguments invoking Article 6 and section 3 of the Human Rights Act 1998 were rejected: the tenant has no free-standing right to a determination except by following the statutory procedure; construing the provision as requiring receipt does not deny access to justice for Article 6 purposes.
• Because the committee did not receive the referral before the new rent took effect, it had no jurisdiction. The appeal was dismissed. The court commented that notes on the form should be clarified and that tribunal procedure could be improved (including consideration of assured receipt mechanisms).

Appeal dismissed. The Court of Appeal held that in section 13(4) of the Housing Act 1988 the word "refer" requires delivery to and receipt by the rent assessment committee before the beginning of the new period specified in the notice; notes on the prescribed form cannot be used to alter that construction and a reading down under section 3 of the Human Rights Act 1998 was not appropriate.

On appeal from the High Court of Justice, Queen's Bench Division (Administrative Court and Divisional Court), Sir Richard Tucker (sitting as a Deputy High Court Judge) whose judgment of 7 November 2002 upheld the Rent Assessment Committee's decision that it had no jurisdiction. The appeal was heard in the Court of Appeal (Civil Division), neutral citation [2003] EWCA Civ 319 (Case Nos C1/2002/2461; 2461A).