[2023] UKUT 208 (LC)

Although the sum of £4,753.30 appears in the summary of costs under the heading “common parts – security equipment” it at least part of that cost relates to the repair of windows in flats belonging to individual leaseholders. The windows in each flat in the building are demised to the leaseholder of that flat, and the landlord has no repairing obligation for them. The four invoices identified by Mr Morris in his grounds of appeal total £688.30, leaving the balance of £4,065 uncontested.

In his original schedule, Mr Saunders challenged the “security equipment” charge on two grounds: first because he required further information to determine whether the charge was payable under the lease, and secondly because the charge was said not to be for a reasonable amount because the charge was believed to relate to work on the door entry system which had been part of the common parts refurbishment project and had already been accounted for. The landlord’s response in the schedule completed on 21 October was a bare denial that the cost had been charged twice; this was supported by copies of invoices a number of which were for repairs to windows.

In his application for additional disclosure on 10 November Mr Saunders asked for supporting documents relating to the invoices so that he could ascertain which windows were referred to in order to determine whether the charges were recoverable as a service charge item or ought to be the responsibility of individual leaseholders.

The FTT’s directions had required Mr Saunders to provide a brief response to the landlord’s case by 11 November. His application of 10 November clearly identified that there was an issue about whether the invoices disclosed by the landlord related to work which fell within the service charge. Those invoices were part of the documentary evidence available to the FTT and it had stated in paragraph 13 of its decision that it would determine the issues before it based on the explanations given by the parties in the Scott Schedule and on the documentary evidence. It is therefore difficult to understand what prevented the FTT from addressing the issue which had been raised by Mr Saunders in his application.

Once again, it is not necessary to treat this part of the appeal as a challenge to the FTT’s case management decisions not to order disclosure. It is concerned with the adequacy of the FTT’s disposal of an issue which was raised by Mr Saunders as soon as he could (it did not feature in the original schedule because the invoices had not yet been disclosed, but it was identified in the application of 10 November). I was told that the issue was also raised in detailed oral argument but in its decision the FTT simply ignored it. In paragraph 31 it referred only to the points which had been mentioned in the schedule, reciting them verbatim. I have no doubt that the FTT’s formula that “having perused the evidence in the trial bundle the tribunal is satisfied that these charges are reasonable and payable” was not an adequate response to the issues raised on the material provided in proper time in compliance with the directions.

Mr Upton very fairly acknowledged that the invoices suggested that the four invoices totalling £688.30 were for work done on flats belonging to individual leaseholders and were not properly included in the service charge. He did not seek to uphold the FTT’s treatment of the issue.

For these reasons I allow the appeal on issue 2 and I determine that the relevant costs recoverable through the service charge for “common parts – security equipment” is reduced by £688.30 and is therefore the sum of £4,065.