Iris Hyslop v 38/41 CHG Residents Co Limited [2017] UKUT 398 (LC)

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Summary

The First Tier Tribunal is entitled to rely on an applicant to send its application, but not the FTT’s subsequent decision, to the respondents to that application. Time will not start running for a party to apply for a permission to appeal until the FTT has itself provided a copy of its decision to that party.

Facts

The landlord sought a determination of the liability of 36 long leaseholders to pay service and administration charges. The landlord was ordered to serve its application on all the respondents, and later confirmed that it had done so. No written objections to the application were received and the FTT determined the application on paper. The FTT subsequently sent its decision to the landlord and ordered it to ‘provide a copy to the respondents’.

The appellant leaseholder averred that she had received neither the application nor the decision, and did not become aware of the proceedings at all until she was served with a claim for possession on the basis of non-payment of the service charges determined by the FTT.

Issues

  1. Was the FTT entitles to rely on CHG to provide notice of the proceedings to the leaseholders?
  2. Was the FTT entitled to rely on CHG to provide the reasons for its decision to the leaseholders?

First instance

Ms Hyslop applied to the FTT for permission to appeal and for an extension of time to make that application, on the basis that she had been unaware of the proceedings.

Those applications were refused on the ground that they had been made “close to 9 months after the original decision”. Ms Hyslop applied for permission from The Upper Tribunal. Martin Rodger QC, the Deputy Chamber President, who also heard the appeal, directed that Ms Hyslop should first apply to the FTT to set aside its decision under rule 51(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (‘the Rules’).

Ms Hyslop submitted that application as directed, arguing that the FTT’s decision should be set aside as she had been deprived of the opportunity of a fair hearing. She further averred that she had substantive grounds for challenging CHG’s entitlement to the service charges. The FTT directed both parties to file witness statements. It thereafter refused the application, having ‘preferred the evidence of the landlord.’ The UT noted that the basis for that refusal was not explained.

Decision on appeal

Under Rule 36(2) of the Rules, “the Tribunal must provide to each party… a notice stating the Tribunal’s decision [and] written reasons for the decision”, where that decision finally disposes of all issues in the proceedings.

Rule 6(3)(d) expressly gives the FTT the power to require a party to provide documents, information or submissions to the FTT itself or to another party, and Rule 16(2)(b) further provides that the FTT can provide any document (including a notice or summons or other information) under the Rules by requiring a party to do so.

The Upper Tribunal found that the broad wording of rule 16(2) was not intended to go so far as “modifying the FTT’s fundamental obligation to make its decisions available to all parties.” The Deputy Chamber President observed that it was so fundamental that that a final decision of a court or tribunal be made available to the parties affected, that it had been difficult to find authority for it [60]. As such, Rule 36(2) had to be interpreted as requiring the FTT to discharge that obligation itself.

The original decision on the landlord’s application was set aside and the proceedings remitted to the FTT for redetermination by a differently constituted tribunal.

Comment

The ruling that the FTT must provide copies of its decisions to the parties itself, is potentially of high importance to litigants and for general practice. If directions from the FTT provide that this duty be delegated to a party, time will not start running on any party’s right to apply for permission to appeal under rule 52(2) until and unless the FTT does finally discharge that obligation itself [para 72]. It would therefore appear to be a natural consequence of this judgment that, in certain circumstances, parties may not be out of time to appeal past decisions by the FTT if these were never provided by the Tribunal.

More particularly, the Upper Tribunal found that the landlord was “not in a position to prove conclusively that Ms Hyslop received the notice of application”. As such, the judge felt that remitting the matter to the FTT to determine whether these documents had been received was an “unsavoury prospect” and set aside the FTT decision instead. It was noted in the decision that the landlord had, at the date of issue of the application, been concerned from the outset that the appellant might claim not to have received the documents. It nevertheless decided not to treat the appellant differently than the other respondents by serving her with the application by hand. With the benefit of hindsight, this may have helped avoid the entire matter being remitted for redetermination after the appeal was successful.