Zdravka Ivanova Atesheva v Halifax Management Ltd

An application challenging a rent increase under section 13(4) of the Housing Act 1988 may be made in a form substantially to the same effect as the prescribed form. The substance of the information conveyed matters, not its format.

A failure to use the prescribed form does not automatically deprive the First-tier Tribunal of jurisdiction. The court must examine the statutory scheme, the purpose of the requirement and the consequences of non-compliance. The statutory deadline for referring the notice remains strict: the reference must be received before the proposed rent takes effect. Where a tenant has referred the notice in time and the landlord suffers no prejudice, a defective application may nevertheless confer jurisdiction.

The tenant challenged a notice under section 13(2) of the Housing Act 1988 proposing to increase her rent from £1,900 to £2,400 per month from 1 February 2024. She e-mailed the First-tier Tribunal on 31 December 2023 seeking review of the increase, but did not use Form No. 6 or provide all the information required by that form. She submitted the prescribed form on 7 February 2024.

The First-tier Tribunal struck out the reference under rule 9(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, holding that it lacked jurisdiction. The appeal concerned whether the e-mails were substantially to the same effect as Form No. 6 and, if not, whether the defective but timely reference nevertheless conferred jurisdiction.

1. Jurisdiction to consider validity. The First-tier Tribunal may decide for itself whether a section 13(4) reference is valid and whether it has jurisdiction to determine the rent. That decision is appealable to the Upper Tribunal but does not bind the parties in later County Court proceedings, which alone can make a binding determination of validity.
2. Substantially the same effect. Regulation 2 of the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 permits a form substantially to the same effect as Form No. 6. The comparison concerns the substance of the information supplied, rather than whether it was presented on paper or in an e-mail. The e-mail omitted material information about the premises, tenancy, services, improvements, repairs, furniture and supporting documents. It was therefore not substantially to the same effect as the prescribed form.
3. Effect of defective compliance. The question whether the application was substantially to the same effect was distinct from the question whether non-compliance deprived the FTT of jurisdiction. Following the approach in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Company Ltd [2024] UKSC 27, the consequence of non-compliance had to be assessed by reference to the statutory structure and purpose, together with the particular facts, prejudice and possible injustice. Substantial compliance was not a free-standing test.
4. The requirement to refer the notice before the new rent takes effect was a strict, bright-line requirement. By contrast, the detailed contents of the prescribed form were subordinate procedural requirements directed principally to assisting the FTT’s fact-finding. The tenant’s e-mail had referred the notice in time, identified the property and proposed increase, and requested review. The landlord suffered no prejudice, whereas refusing jurisdiction risked requiring the tenant to pay more than the open-market rent without scrutiny.
5. The 31 December e-mail therefore validly invoked the FTT’s jurisdiction to determine the open-market rent payable from 1 February 2024. The appeal was allowed and the reference was remitted to the FTT for determination.

• First-tier Tribunal (Property Chamber): On 21 March 2024 the FTT struck out the tenant’s reference under rule 9(2), holding that it lacked jurisdiction because the prescribed form was received after the proposed rent increase took effect.
• Upper Tribunal (Lands Chamber): The appeal was allowed. The reference was remitted to the FTT for determination.