Ipolotas Naujokas v Fenland District Council

For an appeal against a civil penalty, time does not begin to run until the final penalty notice has been given to the person concerned. Posting the notice to the person’s proper address may create a presumption of service, but that presumption may be rebutted by proof of non-receipt.

The tribunal must first determine as a matter of fact whether service occurred. Only if service occurred does the question of extending the time for appealing arise. In deciding that factual issue, the tribunal must fairly assess the recipient’s representations and should consider oral evidence where credibility is central and a significant penalty is at stake.

Fenland District Council imposed civil penalties under section 249A of the Housing Act 2004 in respect of an allegedly unlicensed house in multiple occupation. Final penalty notices were posted to addresses associated with Mr Ipolotas Naujokas. He maintained that he had not received them.

Mr Naujokas lodged an appeal to the First-tier Tribunal more than two years after the notices were posted. The FTT struck out the appeal, finding that service had occurred and that there was no good reason to extend time. The central issue before the Upper Tribunal was whether the FTT had approached service, time and the appellant’s representations correctly.

1. The appeal was allowed and the FTT’s decision was set aside. The matter was remitted for further consideration.

2. The appellate restraint described in BPP Holdings Limited v Commissioner for Her Majesty’s Revenue and Customs [2017] UKSC 55 applies only after the lower tribunal has applied the correct principles. The FTT had asked the wrong initial question by treating the matter as one of extending time or striking out proceedings.

3. Paragraph 6 of Schedule 13A to the Housing Act 2004 requires the authority to give the person a final penalty notice. That requirement operates with section 233 of the Local Government Act 1972 and the statutory deeming rule for postal service in section 26 of the Interpretation Act 1889.

4. Posting a notice to the recipient’s proper address may establish deemed service in the ordinary course of post, but the recipient may prove that the notice was not received. If service was not achieved, no civil penalty had yet been imposed for appeal purposes and the 28-day period under rule 27(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 had not begun. Knowledge that a notice had been served, without proper service having occurred, did not start time running.

5. If service was proved, the FTT could consider extending time under rule 6(3)(a), guided by the overriding objective in rule 3. The approach in Denton v White [2014] EWCA Civ 906 did not provide useful guidance because this was principally a factual question about service, rather than an application for relief from sanctions.

6. The FTT had unfairly criticised the absence of a witness statement when it had invited representations and had not directed the form of evidence. It should assess the appellant’s assertion of non-receipt and, where credibility is important and a substantial penalty is involved, consider whether oral evidence is needed.

7. The appellant was directed to file a full statement of the evidence relied upon within two months and to indicate whether he sought to give oral evidence. The Council was to state whether it wished to cross-examine him.

• First-tier Tribunal (Property Chamber): appeal against civil penalties struck out on the grounds of lack of jurisdiction, abuse of process and failure to establish good reason for the delay.
• Upper Tribunal (Lands Chamber): appeal allowed; the FTT decision was set aside and the matter remitted for further consideration.