House for Homes Limited v London Borough of Waltham Forest

An appellate tribunal may interfere with a discretionary decision only where it cannot be justified; mere disagreement is insufficient. A refusal to extend time may be unjustifiable where the tribunal has failed to consider relevant circumstances. Those may include the explanation for delay, its actual length, prompt steps taken, prejudice to the respondent and the consequences of striking out the appeal. Possible procedural confusion and uncertainty about whether a required notice was sent may also be relevant. The assessment depends on the circumstances of the case and is not limited to whether the applicant gave a satisfactory explanation.

House for Homes Limited was subject to a £15,600 financial penalty imposed by the London Borough of Waltham Forest for operating a house without the required licence. Its director, Marjan Keqaj, wrote to the council the day after receiving the Final Notice, believing that he was making an appeal. He later sent material to the First-tier Tribunal, and submitted the formal appeal 30 days after the deadline.

The First-tier Tribunal refused to extend time and struck out the appeal. The Upper Tribunal granted permission to appeal. The central question was whether the First-tier Tribunal had considered the relevant circumstances when refusing to extend time.

1. The appeal succeeded. The Upper Tribunal set aside the First-tier Tribunal’s refusal to extend time and substituted a decision admitting the financial-penalty appeal to proceed in the First-tier Tribunal.

2. The Upper Tribunal could interfere with the First-tier Tribunal’s discretionary decision only if it could not be justified; mere disagreement was insufficient. The governing explanation was given in BPP Holdings Limited v Commissioner for Her Majesty’s Revenue and Customs [2017] UKSC 55 at paragraph 33, drawing on Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at paragraph 33. Where the tribunal has applied the correct principles and considered relevant matters, an appellate judge should intervene only if the decision is plainly wrong and outside the generous ambit of the discretion.

3. The First-tier Tribunal had focused on whether the earlier address problems explained the delay. It had not considered that Mr Keqaj’s procedural misunderstanding was the reason for filing late, that he responded immediately to the Final Notice, or that the delay was short: 30 days to formal filing, but 16 days to his email to the First-tier Tribunal. It also failed to consider whether the delay affected the council’s ability to respond, the size of the penalty and whether striking out was proportionate.

4. The earlier address problem was also relevant to the surrounding procedural confusion. There was no copy of a Notice of Intent, and it was unclear whether one had been sent. Mr Keqaj’s response to the Final Notice would have been appropriate had the document been a Notice of Intent; the council’s response also suggested it understood him to have responded to such a notice. The Upper Tribunal considered that this uncertainty provided a further good reason not to strike out the appeal.

The First-tier Tribunal’s decision was unjustifiable because it ignored relevant considerations. The financial-penalty appeal was admitted, and the appellant was directed to apply to the First-tier Tribunal for directions.

1. Upper Tribunal (Lands Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision and substituted a decision admitting the appeal against the financial penalty.
2. First-tier Tribunal (Property Chamber): refused to extend time and struck out the appeal.