Tribunal Procedure: Whether Tribunal Proceedings Were Properly Commenced Where a Fee is Paid Later (Jevan v Athansiadi and Another – 2024)

Where A Party Commences Proceedings In The First-Tier Tribunal But Payment Of Fees Is Made Later, Is The Application Properly Made?

The Background

In Jevan V Athansiadi And Another [2024], the appellant owned a flat which was occupied by the respondents as tenants from September 2021 to September 2023. The appellant had not licensed the property in accordance with the local housing authority’s selective licensing scheme, and the appellant therefore committed the offence of managing an unlicensed house between 1 October 2021 to 6 June 2022.

On 5 June 2023, the tenants filed an application to the FTT seeking a rent repayment order. The application was subject to payment of a fee, which the tenants chose to pay via online banking. Bank details were supplied by the FTT on 22 June 2023, and the fee paid on 5 July 2023.

The First-tier Tribunal (Property Chamber) Fees Order 2013 states that a fee is payable “at the same time as the application is made”.

At the hearing, the appellant acknowledged that it had committed the offence between the dates stated. It had applied for a licence on 7 June 2022, after which the offence ceased to be committed. The FTT determined that the application for the rent repayment order had been made within the 12 month period specified at s.41(2) of the Housing and Planning Act 2016 on 5 June 2023, despite payment of the fee only being made on 5 July 2023. The appellant landlord was therefore ordered to repay rent in the sum of £3,150.82 to each of the respondents.

An earlier Court of Appeal decision in Page v Hewetts Solicitors [2012] determined that an application was not deemed to have been made until the required fee was paid, but it was held that this did not apply to applications not governed by the Civil Procedure Rules, such as those in the Tribunal. However, the FTT’s application form allows for the online payment of fees, and the FTT accepts as standard practice fees which are paid within 14 days of notification of bank details.

The FTT treated the application as having been received on 5 June 2023, within 12 months of the last date on which the offence been committed, and therefore found it to have been validly made. The landlord appealed.

The decision

The Upper Tribunal dismissed the appeal, finding in favour of the tenants and agreeing that the application for the rent repayment order was properly made on 5 June 2023, and therefore within the time limit imposed by the 2016 Act, even though the fee was paid on 5 July 2023.

The appellant landlord argued that an application was only made when all necessary steps, including the payment of the Tribunal’s fee, have been taken. The respondents argued that the FTT’s guidance permitted payment to be made within 14 days of receipt of online banking details, and referred to Rules 6 and 11 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

Referencing the Rules, the UT found that Rule 26 allows proceedings to be commenced through delivery of a notice of application, whether or not the fee is paid simultaneously, and found the requirement to pay the fee at Rule 26(5) to be separate to this.

The FTT is obliged to deal with matters fairly, avoiding unnecessary formality. Non-compliance with the Rules is not necessarily fatal to an application, and Rule 11(3) stipulates situations where cases have commenced but fees have not been paid.

Advice and action for landlords

Landlords and managing agents should be aware of this decision, which finds that payments made later than an application may not be fatal to the proceedings.

The Tribunal is obliged to avoid ‘unnecessary formality’ and to deal with cases fairly and justly, and this decision determines that an application made on time, with payment made later following receipt of banking details from the Tribunal, was properly made.