Deadline to appeal against a financial penalty under the Housing and Planning Act 2016

The Upper Tribunal has confirmed in Pearson v City of Bradford Metropolitan District Council [2019] UKUT 291 (LC) that the deadline to appeal against a financial penalty under Schedule 13A of the Housing Act 2004 is 28 days, but the First-tier Tribunal has discretion to extend time where there is a good reason.

Mr Pearson had failed to bring his appeal within 28 days of the day the decision to impose a financial penalty was sent to him. He brought an appeal approximately a month and a half late, and he attributed the delay to being very busy over Christmas. The First-tier Tribunal considered that this was not a good reason for being late and they refused to allow his appeal to proceed. On appeal the Upper Tribunal endorsed the approach taken by the First-tier Tribunal, and Mr Pearson will not be able to appeal against the penalty.

Nothing in this case should come as a surprise to practitioners. The First-tier Tribunal Property Chamber procedures rules set a default deadline of 28 days to bring an appeal where no deadline is specified elsewhere. Where the 28-day deadline is imposed by virtue of rule 17, the tribunal has the power to extend time at its discretion under rule 6(3)(a).

If a landlord or agent wishes to bring an appeal after the usual deadline it will be important to provide evidence about the reason for the delay, including at the very least a clear explanation for the delay.

There may still be some circumstances where submitting a hopelessly late appeal would be a shrewd manoeuvre. Paragraph 10(2) of Schedule 13A to the Housing Act 2004 provides that if a person appeals, the final notice is suspended until the appeal is finally determined or withdrawn. There is (on the face of it at least) no need for an appeal to be brought in time for this suspension of a final notice to take effect, meaning that a late appeal might buy time before the final notice can be enforced.

Several councils offer a discount if the landlord or agent pays the penalty within a certain time period – a period which is usually shorter than the 28 days which the landlord has been given to bring an appeal. The intention of these discounts seems to be to encourage the landlord to both pay promptly, and not to exercise their right of appeal. This practise of offering discounts is open to criticism since it arguably constrains the landlord or agent’s access to a fair hearing by an independent tribunal, in breach of Article 6(1) of the European Convention on Human Rights, because the decision to waive the right of appeal is arguably constrained by the offer of a discount. The solution for landlords and agents might be to both pay the penalty and bring an appeal before either deadline passes.