Landlord wins extension of time for appeal of financial penalty for housing offence

The appellant wanted an extension to lodge an appeal against a decision by Thanet District Council to impose a £7,500 financial penalty on him under Section 249A of the Housing Act 2004 for a housing offence.

The FTT has discretion to extend time if an application is made outside that 28 day time limit.

Thanet sent the appellant a final notice dated 30 May 2024 and his appeal application was received by the FTT on 22 July 2024, just over three weeks out of time.

The appellant gave six reasons why an extension should be granted, each of which the FTT rejected.

These included that he had acted in good faith and sought guidance about the appeal from the FTT. and that he found the process of appeal confusing.

He said he applied promptly once he had understood the procedure, and that the penalty would cause him financial hardship.

The FTT said Thanet would incur time and cost in defending the appeal, and that in light of that prejudice time should not be extended.

Upper Tribunal Judge Elizabeth Cooke said in her judgment: “It is important that a consistent approach is taken by all tribunals to avoid unfairness. It is not clear that the FTT in this case had the relevant principles in mind.

“In particular, it appears to have considered only whether the appellant had provided a good reason for the delay in making his application; its approach seems to have been that if there was no good reason for delay then the FTT's discretion could not be exercised in the appellant's favour.”

Judge Cooke said the FTT appeared to give little or no consideration to the appellant’s enquiry a few days after the expiry of the time limit in which he explained that he wished to appeal the penalty notice.

She said the period of delay was then trivial and “a properly directed decision maker might have regarded it as less than serious.

“Nor does the FTT appear to have taken into account that the consequence of refusing to admit the appeal would be that a significant penalty would be imposed on the appellant without any judicial consideration at all.”

Judge Cooke said the FTT was also in error about prejudice to Thanet.

“The issue there is not whether it would be expensive for the respondent to defend the appeal, but whether the cost or other prejudice would be any greater by virtue of the appeal being made late,” she said.

“In the present case a delay of just over three weeks could not have made any difference to the respondent in terms of the cost, in time or money, of participating in the FTT proceedings.

Judge Cooke concluded the FTT failed to take into account material considerations, and set aside its decision, giving a time extension and allowing either party to ask the FTT to recommence the proceedings.

Mark Smulian