By Manjit Rai and Antony Tregenna, Legal Advisers
July 2015
The Upper Tribunal (UT) ruled recently in the case of Katherine Emma O’Kane v Charles Simpson Organisation Limited [2015] UKUT 355 (LC).
Background
This appeal relates to the issue of occupiers notifying site owners of an appeal concerning site rules when lodged at the First-tier Tribunal (Property Chamber) (“Tribunal”). This case has implications for occupiers who are considering appealing against site rules. An occupier or residents association may appeal to the Tribunal within 21 days of receiving the consultation response document. They must also notify the site owner in writing within 21 days of receipt of the document. The consultation response document confirms whether the site owner will implement proposals for site rules.
The law
In accordance with the Mobile Homes (Site Rules) (England) Regulations 2014, an occupier of a park home can appeal the site rules within 21 days of receipt of the consultation response document. The regulations say that the occupier must make an application to the Tribunal and notify the site owner of the appeal in writing and provide the site owner with a copy of the application made, within the 21 day period from receipt of the consultation response document.
The facts
This case concerned The Willows, a park home site owned by the Charles Simpson Organisation (“the site owner”).The site owner consulted all occupiers on the site about his proposals for site rules, giving the necessary period for responses to be received.
Having reached a decision, the site owner then sent the relevant consultation response document to all occupiers. The consultation response document notified the occupiers of their right to appeal against the owner’s decision within 21 days of receipt of the consultation response document.
The consultation response document was hand delivered to the appellant, Katherine O’Kane on 25 July 2014. She appealed to the First-tier Tribunal (Property Chamber), her appeal document was dated 29 July 2014 and was received by the Tribunal on 1 August 2014. The Tribunal noted that the appeal was sent on the wrong form although this not an issue in the case. The appellant did not herself notify the site owner of her appeal in writing or provide him with a copy of her appeal.
On 15 August 2014 the site owner received a letter from the Tribunal informing him of the application and enclosing a copy of the application notice. Accordingly, on 15 August 2014, the site owner was in possession of the information and the documents to which he was entitled.
However the site owner’s case was that these documents (a) arrived too late (by one day) and (b) were sent by the wrong person (namely the Tribunal rather than the appellant). They argued that since the consultation response document and supporting paperwork was delivered by the site owner to the appellant by hand delivery to her home before 4.30pm on Friday 25 July 2014, it was deemed to have been served on her that day. Consequently, the deadline for the occupier to comply with the regulation expired at 11.59pm on Thursday 14 August 2014, being 21 days from the date of delivery of the consultation response document. There is nothing in the Regulations, the 1983 Mobile Homes Act or elsewhere which permits the Tribunal to exclude or vary the procedure specified in the Regulations, or to extend the prescribed time limit, or to dispense with the requirement of service altogether.
First-tier Tribunal decision
The Tribunal dismissed the appeal, not after consideration of the merits but on a procedural point. This led the Tribunal to deal with the appeal under rule 31(4) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 which permits the Tribunal to strike out a case without a hearing provided adequate notice has been given. In the present case such notice had been given because, by a letter dated 10 September 2014 from the Tribunal to the appellant the Tribunal stated:
“I have been asked to write to you by our Regional Judge. It seems that you did not give the site owner notice of your application to this Tribunal within the 21 day period as you are required to do by the relevant regulations and as was set out in the response to the initial consultation document.
“In those circumstances, it seems to Judge Edgington that your application has no chance of succeeding and this letter is to give you formal notice of the Tribunal’s intention to dismiss your application. This letter is being sent to all parties and if anyone wants to make any representations, they should do so before 4.00pm on the 30 September 2014.”
The appellant responded to the Tribunal broadly to the effect that she had been told by a caseworker at the Tribunal that she did not need to do anything beyond delivering her appeal documents to the Tribunal. The Tribunal concluded that this matter could not assist the appellant’s case. “All the caseworker said, which was exactly the case, was that the Tribunal would send a copy of the application to the Respondent.”
Issue for the Tribunal
The Tribunal considered whether there could be a valid appeal against the site rules if an occupier failed to notify the site owner of the appeal within the 21 day period as set out in the legislation. It decided that there could not be a valid appeal in these circumstances and dismissed the appeal.
The Upper Tribunal decision
The Upper Tribunal decision concludes that the occupier’s appeal must be allowed. Her appeal to the First-tier Tribunal was made in time in accordance with the Mobile Homes (Site Rules) (England) Regulations 2014 “Within 21 days of receipt of the consultation response document …”. It was a valid appeal. The site owner had received the relevant notification and documentation within the relevant time limit of 21 days. In calculating the 21 day period, it referred to para 336 of Halsburys Laws and confirmed that the first day should be excluded. It was not relevant that the notice was sent to the site owner by the Tribunal and not the occupier. They confirmed that even if the site owner had not received notification within 21 days, it did not result in an invalid appeal as the appellant had validly appealed within 21 days to the Tribunal. The case was remitted to the First-tier Tribunal so that it could consider the appeal on its merits.
