[2023] UKUT 247 (LC)

It was submitted on behalf of the appellant that the FTT’s refusal to permit it to participate in the proceedings was vitiated by a series of serious procedural irregularities and errors of fact and law. The following aspects of the decision were criticised.

First, it was said that the FTT conflated the application first made on 9 September to be allowed to rely on evidence despite non-compliance with the original directions, which was repeated at the hearing, with the entirely separate application to adjourn the hearing which had been made on 24 December and had already been dealt with and refused. Mr Young had not suggested that the hearing be adjourned and had asked simply for the opportunity to rely on the evidence which had already been filed. By treating the application as being for an adjournment, when it was not, the FTT decided the wrong question.

Secondly, the FTT made its decision without ever dealing with the application of 9 September. The failure to consider that application for an extension of time when it was made or at all was a serious procedural irregularity which prejudiced the appellant. If a decision had been made in September, or at any time before the hearing date was fixed, the factors relevant to its determination would have been significantly different. The FTT had not taken that into account, nor had it considered the explanation for default given on 9 September when reaching its decision to bar the appellant from participation.

Thirdly, the FTT had made a number of factual errors in paragraph [6] of the decision and had unfairly blamed the appellant for not ‘chasing’ it for a response to the 9 September application. Contrary to what the FTT had suggested, the application for additional time had been sent to the respondents on the same day it was made, and the appellant had not “failed to respond to the application in any meaningful way”. It was also an exaggeration to describe the application as having been made “significantly after the date for filing had already passed”. Mr Patel had reacted as soon as he became aware of the FTT’s directions by making the application on 9 September (just over 2 weeks after the deadline for evidence had passed). He had then responded immediately to the FTT’s enquiry on 2 October. He was informed that the application for an extension of time would be dealt with and quite reasonably assumed that that is what would happen. When he eventually became aware that the hearing date had been fixed he approached the FTT again on 23 December and filed the documents he wanted to rely on without the application of 9 September yet having been determined. The FTT had repeatedly asserted that these documents had not been sent to it, which had obviously influenced its decision (the same suggested failure was later counted as a factor in favour of imposing the maximum possible repayment order). But the documents were sent by email as requested and the FTT had been wrong to say that they had not. A copy of the appellant’s email to the FTT had been sent to the respondent’s solicitors the next day. Whether the email had reached the panel hearing the case was a different matter, but the FTT was wrong to treat the appellant as not having tried actively to rectify the delay.

Fourthly, the FTT had referred to the offence under section 72(1) of the 2004 Act as a “strict liability offence” both during the hearing and twice in its decision. Insofar as this suggested that there was no possible defence, and hence, that there was no point in the appellant’s participation in the hearing, that was an error of law. That assumption played a material role in the decision to refuse to permit the appellant to participate.

Fifthly, the FTT’s decision to debar the appellant was out of all proportion to any prejudice caused by its failure to meet the deadline set in the original directions and was a decision that no reasonable tribunal could reach on the facts of this case. The evidence which the appellant wanted to rely on went to the issue of whether it had a reasonable excuse for not having had an HMO licence at the material time. That evidence was supported by copies of the relevant email chain with Haringey and the respondents’ representative had had more than a week to read it after the Christmas and New Year break.

In response to these submissions the respondents argued that it was not open to the Tribunal to review the FTT’s exercise of discretion of its discretion. The FTT had found that the appellant’s evidence had been filed more than 4 months late and sufficiently close to the hearing date to deny the respondent’s the opportunity to file a response before the hearing. That was a serious breach which justified the imposition of a sanction. The FTT had been entitled to debar the appellant from participation because of its failure to comply with case management directions.

The respondents specifically disputed the appellant’s submission that the FTT had not considered the application made on 9 September when it debarred the appellant from participation. It had referred in paragraph 6 of the decision to a request for an extension of time on 7 September (although the true date was 9 September) and must be taken to have had that application in mind. The appellant had not explained why it had failed to file evidence for more than 3 months after that letter. The suggested excuse that Mr Patel was waiting for a response from the FTT to the application for an extension of time was not satisfactory.