Tribunal Rejects Late Right to Manage Application Due to Timing Issues

OUTCOME: Dismissed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AX/LRM/2020/0009 P Property : [NAME], 18a South Bank, Surbiton, Surrey [POSTCODE] Applicant : [redacted] : [NAME] Respondent : [redacted] : [COUNSEL] [COMPANY] of [NAME] : [NAME] in relation to the denial of the Right to Manage Tribunal member(s) : Judge Sheftel Date of Decision : 4 September 2020

DECISION ON PRELIMINARY ISSUE

1. This has been a remote determination on the papers which has not been objected to by any of the parties. The form of remote determination was P: Paper Determination. A face to face hearing was not held because it was not sought or practicable and all issues could be determined on the papers. 2. The documents that I was referred to are as follows, the contents of which I have noted:

• The Respondent’s email to the tribunal of 8 July 2020, challenging whether a valid [NAME] had been made in time. The email

2 attached a copy of the Upper Tribunal’s decision in [COMPANY] v [COMPANY] [2019] UKUT 0105 (LC). The email also includes correspondence between [NAME] and the tribunal as to when copies of the claim notice and counter-notice had been provided to the tribunal;

• [NAME]’ response of 21 July 2020 with supporting documents, totalling 13 pages;

• Further emails from [NAME] dated 6 and 24 August 2020.

• The [NAME] notice and supporting documents and previous directions by the tribunal.

3. The order made is described at the end of these reasons. Background 4. The substantive proceedings concern an [NAME] under section 84(3) of the Commonhold and Leasehold Reform Act 2002 ("the 2002 Act") for a determination that, on the relevant date, the applicant [COMPANY] was entitled to acquire the right to manage premises known as [NAME], 18a South Bank, Surbiton, Surrey [POSTCODE] (“the premises”).

5. By a claim notice dated 27 January 2020, the Applicant gave notice that it intends to acquire the right to manage the premises on 7 June 2020. By counter notice dated 27 February 2020, the [NAME] disputed the claim alleging that the Applicant had failed to establish compliance with section 80(5), 80(8) and 80(9) of the 2002 Act. According to [NAME], the counter-notice was sent with a cover letter dated 28 February 2020 and received on 29 February 2020.

6. An [NAME] under section 84(3) of the 2002 Act was subsequently made to the tribunal, the circumstances surrounding which are set out in more detail below. Standard directions were initially issued on 3 July 2020.

3 7. By email to the tribunal dated 8 July 2020, [NAME] raised an issue as to whether the tribunal had jurisdiction to hear the [NAME] on the basis that a completed [NAME] had not been made in time, in accordance with the provisions of the 2002 Act. On 10 July 2020, the tribunal made directions for this to be determined as a preliminary issue.

8. The Applicant provided written submissions in relation to the preliminary issue on 21 July 2020 and the Respondent provided a response on 6 August 2020.

9. Prior to the determination of the preliminary issue but following the reopening of the [NAME] of the tribunal at [ADDRESS] to a [NAME], it became possible to process the post that was sent to the tribunal office during lockdown. As such, the tribunal was able to ascertain that the hard copy [NAME] (with attachments) was received by the tribunal on 17 April 2020. The content of what was received was forwarded to the parties, details of which are set out below – the tribunal did not locate a cover letter. In view of this additional information, directions were given allowing the parties the opportunity to make further written submissions if they so wished. [NAME] sent a further email on 24 August 2020 (copied to the [NAME]). Although the email was sent one working day after the date originally stipulated for further submissions, the tribunal has considered this on the basis that it contained only legal submissions and did not refer to any new authorities. No further submissions have been received on behalf of the Applicant in response to the tribunal’s invitation for further directions or [NAME]’ email of 24 August 2020. The [NAME] of the [NAME]

10. As set out in the Applicant’s submissions of 21 July 2020, the [NAME] of the [NAME] has been impacted by the Covid-19 Pandemic.

11. According to [NAME]:

4 • the [NAME] was originally posted to the tribunal on 16 April 2020, accompanied by the claim notice and counter-notice. [NAME]’ letter states that “We had issued this by fist class post to the tribunal because in the pre-covid world, this was the due process followed, however, it does appear that the usual process of keeping copies of this document's cover letter has not been possible at the time, probably due to Covid related issues.” • [NAME] chased its progress on 22 and 28 April and on 28 April the tribunal replied stating that it had not received the [NAME] and asked for an electronic version. • An electronic version was sent on 30 April, although could not be signed. On 11 May 2020, the tribunal confirmed that this had been received on 30 April. • On 20 May 2020, the tribunal wrote again stating “Thank you for your [NAME], however I have notice that you have not add your name in the statement of truth section and also you have not tick the type of [NAME] in the Annex 1 : List of [NAME]. I have attached your [NAME] to this email, please re-send once this has been.” • On 21 May 2020, the [NAME] replied with a copy of the [NAME] form where the tick box is selected showing the [NAME] is for the determination of a right to manage claim. • Following further chasers by [NAME], the tribunal wrote on 25 June 2020 stating that “directions are in preparation for this case. However, I have had a request for copies of the original claim notice and counter notice, as we do not appear to have received these”. Copies of the claim notice and counternotice were sent the following day. The Respondent’s [NAME] in relation to jurisdiction 12. [NAME]’ initial position was to query whether the [NAME] before the Tribunal satisfied the minimum requirements of

5 Section 84(3) of the 2002 Act on the basis that the claim notice and counter notice were not sent to the tribunal with the [NAME] emailed on 30 April 2020 (and not sent until 26 June 2020).

13. However, as noted above, following the reopening of the [NAME] of the tribunal at [ADDRESS], it became possible to process the post that was sent to the tribunal office during lockdown. As such, the tribunal was able to ascertain that the [NAME] was received on 17 April 2020, within the two-month time limit. That [NAME] included copies of the claim notice and counter notice.

14. Nevertheless, crucially, so far as the Respondent is now concerned, the Applicant had failed to tick any box in Annex 1 to the [NAME], showing what type of [NAME] under the right to manage legislation was being made. Annex 1 is a single page on which are listed six different types of [NAME] under Chapter 1 of Part 1 of the 2002 Act. A column adjacent to the list is headed “tick here” and contains one tick-box for each type of [NAME]. For each type the relevant section of the Act is specified, the nature of the [NAME] is described. The first entry in the list refers to section 84(3), which it explains is “an [NAME] for a determination that on the relevant date the [COMPANY] was entitled to acquire the Right to Manage”. The other types of [NAME] include: missing or absent landlords; costs; service charges; approvals under long leases; and determinations under paragraph 5(3) of Schedule 6 to the 2002 Act.

15. According to the chronology above, a version of the [NAME] with a box ticked indicating what type of [NAME] was being made was first supplied to the tribunal on 21 May 2020 in electronic form. For the reasons set out below, in the Respondent’s submission, the fact that no box in Annex A was ticked on the initial [NAME] (received on 17 April) means that there was no effective [NAME] was made in time and that accordingly, the tribunal does not have jurisdiction. Discussion 16. Section 84(3) of the 2002 Act provides:

6 “Where the [COMPANY] has been given one or more counter-notices containing a statement [that the company was not entitled to acquire right to manage], the company may apply to the appropriate tribunal for a determination that it was on the relevant date entitled to acquire the right to manage the premises.”

17. Section 84(4) provides that “an [NAME] must be made “… not later than the end of the period of two months beginning with the day on which the counter-notice … was given”.

18. Insofar as the [NAME] had been first sent on 30 April 2020 (the first electronic version sent), this was more than “the period of two months beginning with the day on which the counter-notice … was given” for the purposes of section 84(3) of the 2002 Act and so would have been out of time in any event aside from the issue of the absence of the claim notice and counter-notice. However, as noted above, the tribunal now accepts that the hard copy [NAME] notice, received on 17 April 2020, was sent in time. Instead, the issue for the tribunal is whether this was a complete and valid [NAME] given that no box was ticked in Annex 1 to the [NAME] form to indicate what type of [NAME] was being made. As set out above, a ticked [NAME] form was only sent on 21 May 2020, which was outside of the 2-month time limit.

19. Before turning to the parties’ submissions, it is also worth noting Rule 8 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, which provides that: “(1) An irregularity resulting from a failure to comply with any provision of these Rules, a practice direction or a direction does not of itself render void the proceedings or any step taken in the proceedings. (2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as the Tribunal considers just, which may include— (a) waiving the requirement; (b) requiring the failure to be remedied; (c) exercising its power under rule 9 (striking out a party’s case); (d) exercising its power under paragraph (5) [referring the matter to the Upper Tribunal]; or (e) barring or restricting a party’s participation in the proceedings. …”.

7 20. In [NAME]’ submission, it is requested that if and to the extent that if a valid [NAME] was not made timeously, the tribunal should nevertheless exercise its discretion to allow the [NAME] to proceed. In the Respondent’s submission, however, the Tribunal’s power under Rule 8 to remedy is not an open-ended power. Further, the Respondent contends that the power under rule 8 can only arise if the Tribunal has already been given sufficient material to enable the [NAME] to be determined.

21. As noted above, the 2002 Act provides only that where a [COMPANY] has been given an opposing counter-notice, the [COMPANY] may apply to the appropriate tribunal for a determination that it was on the relevant date entitled to acquire the right to manage the premises – and that such [NAME] must be made not later than the end of the period of two months beginning with the day on which the counter-notice was given.

22. In support of the submission that no valid [NAME] was made on time, the Respondent relies on the decision of the Upper Tribunal in [COMPANY] v [COMPANY] [2019] UKUT 0105 (LC). In that case, not only did the applicant not attach the claim notice and counter-notice to the [NAME], it also failed to indicate on the [NAME] form what sort of [NAME] was intended to be made.

23. The Upper Tribunal concluded that a valid [NAME] had not been made in time: “38. The FTT said that it knew when it received the [NAME] form on 1 June that it was an [NAME] regarding one of six possible matters in respect of which it has jurisdiction under Chapter 1 of the 2002 Act. That was a reasonable inference, strengthened by the subject line of the covering letter which referred to such an [NAME]. Even that inference, however, depends on the assumption that the mistake made by the intended applicant was in failing to tick one of the options in Annex 1, rather than some other error such as using the wrong standard form or seeking to make an [NAME] of a type for which the FTT has no jurisdiction.

39. I nevertheless agree with Ms [NAME] submission that rule 8 cannot be used to cure a defect in compliance with the minimum requirements of section 84(3). Those requirements are substantive and they had either been satisfied by 9 June by the [NAME] of an [NAME] for the relevant

8 determination or they had not. If they had not been satisfied by that date, because no request had yet been made for a determination of entitlement, the consequence of deemed withdrawal provided for by section 87(1)(a) would befall the claim notice. That consequence is specified in the statute and cannot not be avoided by reliance on rule 8 or any other procedural tool.

40. Rule 8 could of course be relied on to preserve an [NAME] under section 84(3) from any adverse consequences of a failure to supply the documents required by the FTT’s own practice direction (the claim notice and counter- notice). Compliance with the practice direction is a requirement of the Rules, and the consequence of non-compliance can therefore be provided for by the Rules. But the Rules cannot modify the requirements of the 2002 Act itself.

41. I agree that in this respect the appeal is analogous to the situation in the [NAME] case, where it was eventually acknowledged by leading counsel and accepted by the Judge that a failure to take the substantive step required by the Act ([NAME] an [NAME] based on a valid notice) could not be remedied by the procedural device of amending the claim form out of time to refer to a different notice.

42. The [NAME] required by section 84(3) need not be in any particular form but in my judgment, as a minimum, it must ask for a determination of entitlement to acquire the right to manage. If it does not do so it will not be possible to describe it as an [NAME] under section 84(3) for the purpose of meeting the deadline imposed by section 84(4).

43. The 2002 Act contains no saving provision of its own which protects an intended [NAME] from invalidity if it is affected by some inaccuracy or irregularity. In that regard an [NAME] under section 84(3) is different from a notice of invitation to participate under section 78 or a claim notice under section 80, both of which are protected by a specific provision that an inaccuracy will not invalidate the document (see sections 78(7) and 81(1) respectively). That is not surprising given the nature of the requirement, but it does emphasise the necessity of taking steps within time which can be recognised as amounting to an [NAME] for a determination of entitlement.

44.

For these reasons I consider the FTT ought not to have found that an effective [NAME] had been made to it within the two-month time limit. It ought instead to have dismissed the [NAME] as having been made too late.

I would hold that an [NAME] was not made until 12 June 2017 when the form was first returned to the FTT with option (a) in Annex 1 having been ticked. The omission of the required supporting documents was not fatal to the validity of that attempt because they could be cured by reliance on rule 8.”

24. In the Upper Tribunal’s determination, the [NAME] need not be in a particular form, but as a minimum, it must ask for a determination of entitlement to acquire the right to manage – and if it does not do so it will not be possible to describe it as an [NAME] under section 84(3) for the purpose of meeting the deadline imposed by section 84(4) of the 2002 Act.

Accordingly, the Upper Tribunal found that an effective

9 [NAME] had not been made in time as there was no effective [NAME] until option (a) in Annex 1 had been ticked. In so finding, the Upper Tribunal distinguished this omission from failure to provide the supporting documents, which could have been cured under Rule 8.

25. On the facts of the present case, although the claim notice and counter- notice were provided with the [NAME] received on 17 April 2020, Annex 1 was left unticked. In the circumstances, there does not appear to be any basis for concluding other than that an effective [NAME] had not been made in time as there is nothing in the original [NAME] form itself to indicate what type of [NAME] is being made, or, as per the Upper Tribunal’s decision in [ADDRESS], it did not “ask for a determination of entitlement to acquire the right to manage”. Rather, in the tribunal’s determination, no complete [NAME] was made until 21 May 2020, which was out of time. Moreover, applying the Upper Tribunal’s reasoning, it is considered that the question of discretion or reliance on Rule 8 cannot arise because the minimum requirements of the Act had not been met.

Conclusion 26. In the circumstances, the tribunal determines that a valid [NAME] was not made in time and that consequently, the tribunal does not have jurisdiction.

Name: Judge Sheftel Date: 4 September 2020

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have.

10 If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written [NAME] for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28 day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28 day time limit; the tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).