Rafiul Islam v Thanet District Council

A tribunal deciding whether to extend time for an appeal against a civil penalty must apply the three-stage approach in Denton v TH White Ltd: assess the seriousness of the default, identify why it occurred, and evaluate all the circumstances so as to deal with the case fairly and justly. A tribunal must consider the practical length and consequences of the delay, including whether lateness increased the respondent’s prejudice. Where a short delay would prevent any judicial consideration of a significant financial penalty, refusal may be disproportionate. The absence of a good reason for delay does not by itself prevent an extension of time.

Mr Rafiul Islam appealed a £7,500 financial penalty imposed by Thanet District Council under the housing civil-penalty regime. His application to the First-tier Tribunal was received just over three weeks after the applicable 28-day period. The First-tier Tribunal rejected his explanations for delay, treated the respondent’s costs of defending the appeal as relevant prejudice, and refused an extension of time.

The Upper Tribunal considered whether the First-tier Tribunal had properly exercised its discretion and, in particular, whether it had applied the correct approach to procedural defaults and considered the consequences of refusing to admit an appeal against a significant penalty.

1. The appeal was allowed. The First-tier Tribunal’s decision was set aside and the Upper Tribunal substituted a decision extending time for the appeal to the First-tier Tribunal.
2. Under Rule 27 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, an appeal application should ordinarily be provided within 28 days. The First-tier Tribunal has discretion to extend that period.
3. That discretion must be exercised using the three-stage approach identified in Denton v TH White Ltd and applicable to tribunals following B PP Holdings v Commissioners for Her Majesty’s Revenue and Customs: assess the seriousness of the failure; consider why it occurred; and evaluate all the circumstances so as to deal with the case fairly and justly.
4. The First-tier Tribunal appeared to have treated the absence of a good reason for delay as determinative. That was an error. It gave little or no weight to the appellant’s email shortly after expiry stating that he wished to appeal, and failed to consider that refusal would leave a significant penalty without judicial consideration.
5. The relevant prejudice was not the ordinary cost of defending the appeal. It was whether lateness caused additional cost or other prejudice. A delay of just over three weeks would not have increased the respondent’s burden.
6. Applying the three considerations, the delay was short and caused no additional prejudice, although the appellant’s reasons were weak. In the circumstances, refusing to admit an appeal against a significant penalty because of a minor default was disproportionate.
7. The parties could seek directions from the First-tier Tribunal for the proceedings to recommence.

• Upper Tribunal (Lands Chamber): allowed the appeal against the First-tier Tribunal’s refusal to extend time, set that decision aside, and substituted an extension of time for the appeal.
• First-tier Tribunal (Property Chamber): refused the application for an extension of time and dismissed the appeal application.