Sean Jevan v Iris Athansiadi & Anor

For limitation purposes, an application to the First-tier Tribunal is made when the applicant sends or delivers the notice of application required by rule 26(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. Payment of a fee is a separate requirement under rule 26(5). Non-payment does not prevent proceedings from starting, although the Tribunal may not proceed until the fee is paid and the case may be withdrawn if payment remains outstanding. The statutory time limit cannot be altered by Tribunal guidance or application forms. The relevant procedural rules may, however, inform the construction of the statutory phrase referring to the date an application was made.

The respondents applied online to the First-tier Tribunal for rent repayment orders on 5 June 2023. The application fee was paid on 5 July 2023, after the Tribunal had supplied the details required for online payment.

The appellant argued that the applications were out of time because the fee had not been paid when the applications were lodged. The First-tier Tribunal held that the applications had been made on 5 June 2023, within the period required by section 41(2) of the Housing and Planning Act 2016, and ordered repayment of rent. The appeal concerned whether the applications were effectively made when the notices were lodged or only when the fees were paid.

1. Appeal dismissed. The applications were made on 5 June 2023, when the notices of application were lodged.
2. The question was one of statutory construction: what was meant by the date the application was made in section 41(2) of the Housing and Planning Act 2016. The applicable procedural rules could inform that construction, although they could not alter the statutory meaning or extend the statutory time limit.
3. Rule 26(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 states that proceedings are started by sending or delivering a notice of application. The notice is a document. The fee is a separate matter which rule 26(5) requires the applicant to provide with the notice. The structure of the rule therefore shows that payment is not part of the application itself.
4. That interpretation was reinforced by rule 8. Failure to comply with the Rules is an irregularity which does not of itself render proceedings or a procedural step void. The Tribunal may waive the requirement or require it to be remedied.
5. Rule 11 was consistent with the same conclusion. The Tribunal must not proceed until the fee is paid. If the fee remains unpaid for 14 days after notification, a case which has already started is deemed withdrawn. The reference to a case being not already started confirms that proceedings may have started before payment.
6. The overriding objective in rule 3 supported a flexible interpretation avoiding an unnecessary procedural trap. Tribunal guidance and standard forms could not change the Rules or the statutory time limit, but they were consistent with them. Payment within 14 days after the Tribunal supplied online-payment details was therefore effective to avoid deemed withdrawal.

The rent repayment applications were consequently within time.

• First-tier Tribunal (Property Chamber): held that the applications were made when lodged on 5 June 2023 and ordered the appellant to repay £3,150.82 to each respondent.
• Upper Tribunal (Lands Chamber): dismissed the appeal and upheld the determination that the applications were within time.