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

For a statutory rent-referral procedure, “refer” means that the prescribed application must be received by the rent assessment committee before the new rent takes effect. Posting or despatch alone is insufficient. The tenant’s right to have the rent determined arises only when the statutory procedure has been complied with, so applying the receipt requirement does not deny access to justice or require a Convention-compliant reading under section 3 of the Human Rights Act 1998. Prescribed-form notes cannot alter the construction of the primary legislation where the regulations do not authorise them as an interpretive aid.

An assured tenant challenged a rent increase proposed under section 13(2) of the Housing Act 1988. She completed the prescribed referral form and said that she posted it on 18 March 2002, before the proposed new rent was to take effect on 20 March. The rent assessment committee received it on 20 March and declined jurisdiction. Sir Richard Tucker, sitting as a deputy High Court judge, upheld that decision on judicial review on the basis that “refer” meant deliver to the committee.

The tenant appealed, arguing that posting was sufficient. She relied on statutory context, the notes on the prescribed form and Article 6 of the Convention. The central issues were the meaning of “refer”, the relevance of the form notes and the committee’s evidential conclusion.

1. Appeal dismissed. The statutory word “refer” in section 13(4) of the Housing Act 1988 naturally connotes receipt by the rent assessment committee. The application had therefore to be received before the beginning of the new period specified in the landlord’s notice.
2. The statutory context supported that construction. Referral imposes on the committee a duty under section 14 to determine the rent unless the parties agree otherwise in writing. The committee must begin a process involving notice to the landlord and could not sensibly exercise that function without knowledge of the application. Regulation 2(2) of the 1971 regulations reinforced the point by requiring the committee to serve a copy of the reference on the landlord.
3. Nash v Ryan Plant International Limited (1977) ICR 560 was distinguished. There, the primary legislation was ambiguous and expressly linked the reference to regulations requiring the originating application to be sent. Here, the prescribed-form regulations did not provide an equivalent interpretive guide. The note on form 5 could not be used to construe section 13(4), consistently with the dictum in Jackson v Hall [1980] AC 854.
4. The absence of an escape clause did not justify a despatch construction. The tenant’s statutory right to a rent determination existed only if the statutory machinery was invoked. Article 6 did not assist because requiring compliance with a procedure for obtaining a statutory right was not a denial of an existing civil right. Section 3 of the Human Rights Act 1998 consequently had no work to do.
5. The court did not need to decide whether despatch would have required posting so that receipt occurred in the ordinary course, or whether there was sufficient evidence of posting. Lord Justice Waller indicated that he would have favoured remitting the evidential issue. The court nevertheless criticised form 5 as unclear and recommended that it state prominently that receipt was mandatory, time could not be extended and non-receipt meant that the proposed rent took effect.

Lord Justice Tuckey agreed with Lord Justice Waller’s reasons. Lord Justice Sedley agreed in the result but considered the outcome potentially unjust and the legislative scheme unsatisfactory. The appeal was dismissed with costs, with the costs issue remitted to the costs judge for determination of the Legal Services Commission’s liability.

• Court of Appeal (Civil Division): appeal dismissed with costs; the costs issue was remitted to the costs judge for determination of the Legal Services Commission’s liability.
• High Court of Justice, Administrative Court and Divisional Court: Sir Richard Tucker, sitting as a deputy High Court judge, upheld the rent assessment committee’s decision that it had no jurisdiction because the application was not received before the new rent took effect.