[2023] UKUT 271 (LC)

At the hearing of the appeal the Appellant was represented by Simon Allison, counsel. The Respondents did not appear and were not represented at the hearing.

The Respondents comprise the tenants of all the 32 flats in the Building. They are listed in the Annex to this decision. Not all of the Respondents have participated in the proceedings in the FTT or in the appeal. The Respondents are listed in the Annex to this decision, divided between those who have participated in the proceedings and those who have not. I should also explain that there are only 31 Respondents (treating joint tenants of a flat as a single Respondent for this purpose) listed in the Annex because one Respondent is the tenant of two of the flats.

Although the Respondents did not appear and were not represented at the hearing, I was satisfied that those of the Respondents who have participated in the appeal were given adequate notice of this hearing and were aware of the hearing.

In this context I should also mention that, in September 2023, one of the Respondents raised a query with this Tribunal as to whether the appeal hearing would be proceeding. The query was raised because a letter was sent on 30^th June 2023 by the Department for Levelling Up, Housing & Communities which contained the information that the original developer of the Building had agreed to fund the remedial works required to the Building. It appears to have been assumed, by at least one Respondent, that this meant that the appeal would not be proceeding. This assumption was wrong. The relevant Respondent was advised by the Tribunal, on two occasions, that the appeal hearing would be proceeding unless the Tribunal was informed by the parties either that the appeal had been withdrawn or that all issues had been resolved between the parties. Each of these communications from the Tribunal was copied to those acting for the Appellant and to those of the Respondents (comprising the majority of the Respondents) who had been identified as participating in the appeal. The Tribunal was not informed either that the appeal had been withdrawn or that all issues had been resolved. Nor was this the case. Nor was any application made to adjourn the hearing of the appeal.

For present purposes, the relevant point is that those Respondents who have participated in these proceedings were reminded, in the lead up to this hearing, both of the date of the hearing of the appeal and of the fact that the appeal was proceeding.

In these circumstances I was satisfied that it was appropriate to proceed with the hearing of the appeal, notwithstanding the absence of the Respondents, and that there was no reason to adjourn the hearing. It should also be recorded that Mr Allison took some care to be even handed in his submissions, identifying and addressing arguments to be made against his case. This was most helpful, both in terms of identifying points arising in the appeal and in terms of testing the merits of Mr Allison’s submissions. In addition to this, a number of the Respondents filed statements in response to the Dispensation Application. A number of the Respondents also filed written objections to the application for permission to appeal or respondent’s notices in response to the appeal, identifying their grounds of opposition to the appeal. I have therefore also had the benefit of reading and taking into account the Respondents’ arguments, as set out in the documents (falling into the above categories) which were included in the appeal bundle for the hearing of the appeal.