With statutory rent increases set to become the norm once the Renters' Rights Bill is enacted, the appeal in Atesheva v Halifax Management Limited gives an interesting summary of what amounts to a valid referral for determination.
This appeal considers the formalities necessary for a tenant to challenge an increase in rent proposed by their landlord under S.13 of the Housing Act 1988 (HA '88).
Where an assured periodic tenancy contains no contractual provision for increasing rent, a landlord who wishes to secure an increase in rent must serve a notice under S.13(2) HA '88 proposing a new rent. These provisions will apply to all private sector residential lettings once the Renters' Rights Bill is enacted, as fixed term shorthold tenancies and contractual rent increases will become a thing of the past.
The tenant in response has the right to refer the Notice of rent increase to the First Tier Tribunal (the FTT) which is required to determine the new rent in the manner provided for by S.14 HA '88. That referral must be in a prescribed form, Form 6, or one substantially to the same effect.
On 20 December 2023, Halifax served notice under section 13(2) HA '88 proposing a new rent of £2,400 a month to commence on 1 February 2024. The tenant contacted the FTT by email on the 31 December 2023, a month before her rent increase was due to come into effect. In that email she provided her name, the property address, the details of the landlord and the proposed increase and she asked the FTT to review the proposed increase.
Although this prompted an automated reply from the FTT informing the tenant of a 10 working day response time, no substantive response was received. The tenant followed up with a second email on the 22 January 2024, and a phone call, but she received no response.
On 7 February 2024, a tribunal case officer responded directing the tenant to the prescribed Form 6 which she completed later that day.
On 21 March 2024, the FTT declined to proceed on the basis it had no jurisdiction to do so. The Form 6 had been received late and the earlier emails did not constitute applications in the prescribed form. The application was struck out.
The ground of appeal raised by the tenant in the Upper Tribunal (UT) was that the email(s) to the FTT were sufficient to confer jurisdiction on it to determine the rent payable.
In the Appeal, Martin Rodger KC considered two points. Firstly, whether the email of 31 December 2023 was "substantially to the same effect" as the Prescribed Form. Secondly, if it was not, was the consequence that the FTT could not determine the new rent.
On the first point, the fact that the information was provided in an email was not, in itself, fatal: Tadema Holdings v Ferguson [1999]. What matters is the information that is conveyed, not the way which it is presented.
The important question was whether the information contained in the email was substantially to the same effect as the information required by Form 6.
The UT carefully considered each of the missing elements of Form 6 in the light of previous authorities regarding forms substantially to the same effect. It concluded that the email did not impart the same information as a properly completed version of Form 6 would. The missing information was relevant and without receiving it, the FTT could not know with confidence whether the time for a determination had arrived, the extent of the property, or the terms of the tenancy which it was being asked to value. Since the provision of the information is part of the purpose of an application under section 13(4), without it the effect of the email was not substantially the same as the effect of the prescribed form.
This UT went on to consider the second question on jurisdiction, which was whether the failure to make the application in the prescribed form (or one substantially to the same effect) meant that the FTT automatically had no jurisdiction. This was considered within a wider focus on the purpose of the requirement and its function in the statutory scheme.
In this case the Appellant did refer the rent increase to the FTT within the time limit set by S.13(4), a month before the deadline. The question for the UT was whether the consequence of the failure to use the prescribed form is the same of making no application at all until after the deadline has passed.
The landlord would not be prejudiced by the FTT accepting the application, because the FTT's jurisdiction is to determine open market rent. Conversely, the consequence for the tenant of the FTT striking out the application are that the proposed rent would take effect without scrutiny, whether it was at a market level or not.
The information missing from the tenant's application, whilst necessary to determine the rent, was not information prescribed by section 13 HA '88 and therefore could be said to be of secondary importance.
Section 41(2) of HA '88 gives the Tribunal power to require information to be supplied by the tenant. This suggests that Parliament did not envisage that the information contained in the application would be all the Tribunal would rely on, but would be more of an introduction. The appropriate course would have been for the FTT to exercise that power to remedy the procedural defect in the tenant's application.
The tenant's appeal was allowed and the matter was remitted to the FTT.
This case serves as a useful reminder of the law and procedure for rent increases under section 13, as well as expanding the existing caselaw around prescribed forms and forms substantially to the same effect.
