[2023] UKUT 156 (LC)

The appellant, Orbit Housing Association Limited, is the freeholder of Rosalind Court, a housing development for the over-55s where Mr Vernon, the respondent, holds a fully assured tenancy of a flat. The appeal is against the decision of the First-tier Tribunal (“the FTT”) to strike out an application made by Mr Vernon for a determination of the reasonableness and payability of certain charges demanded of him pursuant to his tenancy agreement. The application was struck out because the FTT found thatthe charges were not a variable service charge within the meaning of section 18(1)(a) of the Landlord and Tenant Act 1985 and that therefore it had no jurisdiction to assess its reasonableness and payability.

It is startling that the FTT stated (at its paragraph 75) that Mr Vernon had “succeeded in his claim”, and that the appellant is now challenging a decision apparently made in its favour (since the application made against it was struck out). These unusual aspects of the appeal are explained below.

The appellant was represented in the appeal by Mr David Nuttall of counsel, and the respondent by Mr Justin Bates and Mr Harley Ronan of counsel, both of whom generously acted pro bono as part of Advocate’s panel. I am most grateful to them all. The hearing originally listed in June was adjourned because the bundle was found to be lacking important material, and so we reconvened a month later in July.

At the start of the hearing the Tribunal heard an application by the appellant to adduce further evidence, in the form of copies of agreements made with third parties for the provision of services to the residents at Rosalind Court. Mr Nuttall accepted that the material could have been produced to the FTT and was not, and asked the Tribunal nevertheless to exercise its discretion to admit it. I took the view that the evidential value of the material was low; there was no witness evidence to explain how it related to the issues in the appeal. Even if it was accepted (as the FTT seems to have done) that the appellant had contracts with third parties for the provision of care, that would not have any impact upon findings of fact made by the FTT about the availability of certain services to Mr Vernon. I therefore refused to admit the fresh evidence since no good reason had been put forward as to why it had not been produce to the FTT and since it was in any event unlikely to assist the Tribunal.