[2023] UKUT 306 (LC)

Fecha: 20-Dic-2023

Conclusions

Disposal

53.

No express finding was made by the FTT as to whether the respondent, or Lowe, was a person managing or in control of the property. But clearly the FTT took the view that if it was wrong about the construction of Schedule 14 then a rent repayment order should be made against the respondent, because it gave some indications, at paragraphs 87 to 91, about the matters that it would have taken into account in considering the amount of rent to be repaid had it made an order, for the assistance of the Upper Tribunal in case its finding about CCG and the effect of Schedule 14 to the 2004 Act was found to be wrong. In view of what was said in the agreement between CCG and Lowe about the status of the respondent it is likely that the FTT regarded the respondent as falling within the final words of section 263(3) (“includes, where those rents or other payments are received through another person as agent or trustee, that other person” see paragraph 29 above), but it is right that the FTT should set out its finding in full.

54.

In any event the comments made in paragraphs 87 to 91 do not provide enough information on the basis of which I could quantify a rent repayment order. The FTT noted that there was no adverse conduct on the part of the applicants that might reduce the award. It noted that no complaints about the condition of the property or services had been made out. But it accepted an allegation of “bullying or inappropriate behaviour by the head guardian”. The head guardian was appointed by Lowe and the FTT said that it regarded that behaviour as serious. But it did not say what was the “bullying or inappropriate behaviour” found to have taken place. Nor do I have any information about the respondent’s financial circumstances.

55.

Accordingly, the matter is remitted to the FTT (the same panel, if at all possible) for it to set out the basis on which a rent repayment order should be made and to determine the amount that should be paid.

Upper Tribunal Judge Elizabeth Cooke

20 December 2023

Right of appeal

Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.