UTLC LC-2023-250 - [2023] UKUT 289 (LC)

It is worth reiterating that I see no difficulty in the use by the FTT of the email address provided by Mr and Mrs Date-Bah in the tenancy agreement. The tenancy agreement was not long expired. The email was intended for use in connection with the tenancy.

It is also worth reiterating that the FTT did not suggest that it disbelieved Mr and Mrs Date-Bah when they said that they had not received notice of the proceedings or any materials until 9 June 2022. Had the FTT doubted the truth of that, it would no doubt have invited Mrs Date-Bah to give evidence at the hearing about whether she and her husband had checked the email. But it did not do so and appears to have taken what Mr and Mrs Date-Bah said as being true. Nor has Ms Radice suggested that they were lying.

The issue is whether, in light of that, in deciding not to adjourn on 13 June 2022 the FTT exceeded the generous range of discretionary decisions open to it.

Had Mrs Date-Bah not attended on 13 June the FTT would have had to consider whether to go ahead in her absence. Rule 34 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 states:

“If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal—

(a)

is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

(b)

considers that it is in the interests of justice to proceed with the hearing.”

Rule 34(a) would have been satisfied in light of Mrs Date-Bah’s email on 9 June 2022, but consideration would also have had to be given to rule 34(b), in light of the fact that the proceedings required the FTT to consider whether a criminal offence had been committed ad to determine contested issues of fact. In circumstances where no-one was doubting that Mrs Date-Bah was telling the truth when she said she had known nothing about the proceedings until 9^th June it is doubtful that it would have been in the interests of justice to proceed.

Suppose further that the letter arrived not on 9^th June but on 14^th. It is unlikely that in those circumstances the FTT would have gone ahead on 13^th June in the absence of any indication that any information that the proceedings had actually reached Mrs Date-Bah; but if they had done so, then when Mrs Date-Bah received the letter on 14^th June the FTT would have had to consider what to do in light of rule 51, which says:

“(1)

The Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if—

(a)

the Tribunal considers that it is in the interests of justice to do so; and

(b)

one or more of the conditions in paragraph (2) are satisfied.

(2)

The conditions are—

(a)

a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative;

(b)

a document relating to the proceedings was not sent to or was not received by the Tribunal at an appropriate time;

(c)

a party, or a party's representative, was not present at a hearing related to the proceedings; or

(d)

there has been some other procedural irregularity in the proceedings.

(emphasis added)

In that hypothetical situation the FTT would have had to consider whether it was in the interests of justice to set aside its decision in circumstances where it had found Mr and Mrs Date-Bah to have been guilty of a criminal offence in their absence, and had resolved contested issues of fact against them in their absence.

As it was, the FTT went ahead. It gave no detailed reasons for doing so, instead referring to its decision on 9 June 2023 (see paragraph 7 above) which was itself brief, sceptical in its response to the information about the doctor’s appointment, and unrealistic in its suggestion that Mrs Date-Bah might attend the hearing with her child. No consideration appears to have been given as to whether Mrs Date-Bah’s actions in securing representation at the last minute and managing the difficulties of childcare and the doctor’s appointment might make a difference.

The consequences of the decision not to adjourn were very serious for Mr and Mrs Date-Bah. For one thing, Mrs Date-Bah was not allowed to give evidence. That must have been very frustrating for Mrs Date-Bah, but it was an inevitable consequence of the decision not to adjourn; the FTT in the course of a hearing will not allow a party, in this case Ms Radice, to be taken by surprise by evidence of which they have had no notice. But of course the fact that a refusal to adjourn meant that a case involving contested evidence of fact was going to be decided without hearing evidence from Mr and Mrs Date-Bah, for whom the consequences of an adverse finding would be extremely damaging, was a factor that the FTT should have taken into account in making its decision not to adjourn, and the FTT gave no reasons why it was content to go ahead in those circumstances.

As to the evidence itself, it is not clear how the FTT concluded that Mr and Mrs Date-Bah admitted managing the property without a licence; the FTT referred to a page in the bundle for that, and of course Mr and Mrs Date-Bah had not seen and had no input into the bundle. That said, their grounds of appeal make clear that they do not dispute that point. As to the quantum of the order, however, there is serious dispute. There is no indication of the basis on which the FTT found Mr and Mrs Date-Bah to be professional landlords and they had no opportunity to answer the suggestion that they were. They had no opportunity to give evidence about the state of the property, nor about their financial circumstances. True, they were represented and had the opportunity to challenge Ms Radice’s evidence, but they had had no time to give proper instructions to Mr Mukulu and there were limits to what cross-examination could achieve in the absence of their own evidence.

Moreover, the FTT in considering the basis of the penalty gave no consideration to the seriousness of the offence, nor to the guidance given by the Tribunal in cases such as Acheampong v Roman and others [2022] UKUT 239 (LC) and simply moved straight to the conclusion that the whole of the amount claimed should be repaid, apparently on the basis that Mr and Mrs Date-Bah’s failure to serve evidence justified that approach (see paragraph 10 above). I fail to see how that could possibly be either legally correct or fair.

In light of those consequences the refusal to adjourn the hearing on 13 June 2022 was unfair to Mr and Mrs Date-Bah, as was the rent repayment order made by the FTT as a result of that hearing, and the FTT’s decision is therefore set aside.

I have given no consideration to the application to adduce evidence on appeal. The appeal has been by way of review of the FTT’s decision, and evidence which was not before the FTT is not relevant to the appeal. When the FTT gives directions for a re-determination it will make provision for both parties to file evidence in the usual way.