Over the last 12-18 months, we have seen the bedding down of the new Property Chambers of the First-tier Tribunal (“FTT”) which incorporates the jurisdiction of six former property tribunals (including the rent assessment committee, rent tribunal leasehold valuation tribunal and residential property tribunal) into one Tribunal. Initial statistics show impressive case disposal times and users have praised the slick administration system.
The new FTT rules
The new Tribunal Procedure (First-Tier Tribunal) (Property Chamber) Rules 2013 (“the Rules”) have widened the FTT’s case management powers and are similar in style to the Civil Procedure Rules which govern the County Court. Whilst the Rules will not radically change the operation of the FTT, there are a few notable changes, as follows:
- The new power is included to enable the FTT to make wasted costs orders, or to order (unlimited) costs where a person has acted unreasonably in bringing, defending or conducting proceedings (previously costs of up to £500 were available in only exceptional circumstances where a party had acted unreasonable or vexatiously).
- The FTT can take action against parties who are in default of directions by waiving the requirement, requiring failure to be remedied, striking out a party’s case or barring or restricting a party’s participation in proceedings; and
- More formality is encouraged, via the Rules, in relation to directions for evidence and disclosure which is expected to result in more ordered and structured hearings.
Tribunals exceeding their remit
There has been a succession of cases in recent years appealing the decisions of the various property tribunals in which the judges have stepped outside of their jurisdiction by raising points of their own or have relied on their own knowledge and experience over that of witnesses. Despite the changes brought about by the introduction of the FTT and the Rules, concern remains that judges continue to exceed their jurisdiction.
In the recent case of Red Kite Community Housing Limited v Robertson [2014] the landlord appealed against the Leasehold Valuation Tribunal’s finding that its estate management charges were unreasonable and should be reduced following the Leasehold Valuable Tribunal’s expressed reliance on its own knowledge and experience. The Leasehold Valuation Tribunal reduced the charge of £325.14 per annum, which was mainly made up of cleaning charges, to £225.00 per annum.
The Leasehold Valuation Tribunal had failed to make any mention of its intention to reject the landlord’s evidence and rely on its own experience. The Upper Tribunal Judge on appeal stated: “If a Tribunal is making a decision on the basis of either factual or expert evidence, it must make its determination on the basis of the evidence given by the parties. If the Tribunal is aware of other specific evidence which conflicts with what has been put to it by the parties, then the Tribunal must tell the parties about that evidence and ask for their comments. This is a different matter from the application of the Tribunal’s knowledge and experience to task of weighing the evidence before it.”
The Upper Tribunal Judge went further in providing a list of factors tribunals should take into account upon relying on its own expert knowledge, as follows:
- The quality of the evidence before the Tribunal;
- The extent of the difference between the evidence presented and the tribunal’s view;
- Whether both parties have produced evidence and/or made representations;
- The overriding objective (set out in Rule 3).
It is hoped that these factors will be taken into account by the FTT and result in fairer decisions in the future where the tribunal chooses to rely on its own knowledge and experience!
Court of Appeal rule on consultation for qualifying works
Before the case of Phillips and another v Francis and another [2014], it had been the common approach to assume that Section 20 of the Landlord & Tenant Act 1985 only applied to qualifying works where a lessee would be required to contribute more than £250 through the service charge in respect of any one piece of work (i.e. roof repairs) and that it was not necessary to add each item which amounted to qualifying works together.
At an appeal in the High Court, the Chancellor of the High Court found that the requirement to consult should be determined by the total cost of all qualifying works undertaken during the year.
The Court of Appeal overturned the decision of the High Court, which had caused considerable worry for landlords over recent years. The Court of Appeal confirmed that the question of what a single set of works comprises should be determined in a common sense way by taking into account all relevant circumstances. The Court of Appeal identified the following relevant factors:
- Physically where the items of work are to be carried out;
- Whether they are the subject of the same control;
- Whether they are to be done at more or less the same time or different times; and
- Whether the items of work are different in character from, or have no connection with each other.
