[2024] UKUT 345 (AAC)

The first ground of appeal is not one GDFC Assets Limited (from now on “GDFC”) ran before the FTT when seeking permission to appeal to the Upper Tribunal from that tribunal. It is said that the ground could not have been advanced before the FTT until a transcript of the appeal hearing before the FTT on the substantive hearing had been obtained.

GDFC seek permission to appeal to argue this ground, but that is not necessary as the FTT did not limit its grant of permission to appeal. And no issue of fairness arises in terms of this ground being taken because both respondents have had sufficient notice of it.

The first ground is that in the course of the substantive appeal hearing GDFC say that the FTT had made a clear oral ruling that it would not address regulation 30(3)(c) of the Framework Regs in its substantive written decision because no sufficient case for breach of regulation 30(3)(c) had been made out on the evidence. It was therefore: (a) wrong in law for the FTT to (re)decide whether regulation 30(3)(c) had been breached in its substantive decision (because it had already decided in its oral determination that it had not); and (b) unfair for the FTT to have done so in circumstances where it had told the parties it would not be doing so and where, therefore, the parties had not had a full opportunity to address the FTT on the issue.

The basis for GDFC’s argument that the FTT made an oral ruling or decision on regulation 30(3)(c) is the following passage in the transcript of the hearing before the FTT at the end of the second day of the hearing:

“We have discussed the issues, and broken them down into sort of two sides.

First, you know, whether or not there is notification-- breach of notification requirements of regulation 30(3). We are satisfied there is no arguable case to be made there, so we will not require any further submissions on that, and it will not form part of the issues we decide.

As to Regulation 30(4) and (5), we would benefit from some further submissions…..

"The intervener may provide written representations on whether the energy plan is a green deal plan, restricted to the insulation improvements, the finance servicing charge and their relevance to the requirements of Regulation 30(4) and (5). Those representations to be provided by 12 noon, Friday 8 April. In default the Tribunal will not consider the issue.

The other parties may provide written representations in response by 12 noon on 15 April".

Much time and effort was taken up by the parties on this first ground of appeal. Arguably, too much time.

The oral statement of the FTT that ‘breach of notification requirements of regulation 30(3) of the Framework Regulations was not a matter it would decide’, taken on its own might support an argument that it was not deciding any matter under regulation 30(3). And, for what it is worth, both Ms Urell and Mr Streeten, who were present at the FTT hearing when these remarks were made, took them to mean this and were surprised therefore when the FTT did decide issues under regulation 30(3)(c) of the Framework Regs.

On the other hand, the discussion which immediately preceded these remarks of the FTT was not obviously about regulation 30(3)(c) and the concern of the FTT appeared to be about whether any of the parties needed more time to respond to some of the points made by the representative of the Energy Consumers Association (who appeared before the FTT but not before the Upper Tribunal) the previous morning. It is worth noting in this respect that in seeking submissions from the parties towards the end of day two of the substantive hearing, the FTT said (transcript internal page 48 at letter E):

“Thank you. So, well, that brings to an end the parties' submissions on the substantive issues which are being discussed at this hearing. That may or may not be an end to things because we did (inaudible) the end whether or not the parties considered-- any of the parties considered that they needed more directions or time or evidence, or anything of that nature, to respond to some of the points made by Mr Wilcox [the Energy Consumers Association’s representative] when he started off yesterday morning. I think the parties with the main concern about that were the two respondents.”

The FTT then heard from the parties on those ‘day one points’ of Mr Wilcox before it made the remarks set out in paragraph 40 above.

The Energy Consumers Association’s representative’s submissions on the morning of day one of the hearing ranged over various matters, some of which arguably fell outside the scope of the appeal to the FTT. Those matters included compliance with regulation 30(3)(c), but seemingly in the context of the cost of insulation measures as against the savings brought about by those measures and not regulation 30(3)(c) more generally. It would appear that the FTT may have seen that particular argument about regulation 30(3)(c) as a “new argument” (see (internal) page 29 at letter A, page 30 at letter B and page 32 at letters C-F of the day one transcript of the substantive FTT proceedings), and its remarks set out above at the end of day two may need to be read in that context. That is, that there was no arguable case on the new argument (about insulation costs versus savings) under regulation 30(3)(c) and so the FTT was stripping that (cost of insulation) issue out of what it would decide on regulation 30(3)(c). Furthermore, the FTT plainly did not think it was precluded from deciding whether regulation 30(3)(c) of the Framework Regulations had been breached, and the consequence of breach of, inter alia, regulation 30(3)(c) was a matter the parties had asked the FTT to decide in its preliminary decision.

I do not consider I need to carry this forensic enquiry any further, although I incline to the view that the FTT was not by the its oral remarks at the end of day two ruling out consideration of all notification issues under regulation 30(3)(c) of the Framework Regulations. I do not carry the enquiry any further because I am quite clear on what is before me that the FTT did not promulgate a decision on 1 April 2022 on Ms Heaney’s appeal that regulation 30(3)(c) of the Framework Regulations had not been breached. Its remarks do not and cannot in my judgement amount to a positive and dispositive oral decision that regulation 30(3)(c) was not breached in any and all relevant respects. I say this based primarily on the remarks themselves. They are not a substantive decision. At highest, the remarks are no more than the FTT stating it was not going to decide whether regulation 30(3) was breached in certain respects, but those respects are not wholly clear. That is not the same thing as the FTT positively deciding that regulation 30(3)(c) was not breached. Moreover, if this was an oral decision, on the face of rule 38(2)(b) of the GRC Rules the FTT was required to give written reasons for that decision, which did not occur.

I am, accordingly, satisfied that the FTT did not err in law in its substantive decision of 5 July 2023 by deciding whether regulation 30(3)(c) of the Framework Regs had been breached and the consequences if it had. This is because it had not already decided that issue on 1 April 2021 (at the end of day two of the oral hearing ) and so was not redeciding those issues on 5 July 2023.

At most, the remarks of the FTT might have meant that one or more of the parties were denied an opportunity to make submissions, or further submissions, on whether regulation 30(3)(c) had been breached, because they took it that the FTT was not going to decide this issue. I need not decide this issue either, and I note that the remarks were made at the end of the two day hearing when all issues might have been expected to have been addressed. The reason I do need to decide this issue is because, even assuming the FTT erred in law in acting in breach of the rules of natural justice in shutting out any of the parties from making submissions on a matter which was in issue on the appeal, it cannot (as was accepted before me) amount to a material error of law because all substantive issues concerning whether the FTT erred in law in its application of regulation 30(3)(c) in its substantive decision have been argued out fully before me. I turn therefore to those issues.