[2024] UKUT 313 (LC)

As to the amount of the rent repayment order, Mrs Delbourgo made three points.

The first was that if the actions taken by the appellant, and the misunderstanding arising from the website, did not amount to the defence of reasonable excuse then they should have been taken into account as matters of mitigation. The second was that the FTT took no account of the appellant’s very straitened financial circumstances, despite there being evidence in the bundle in the form of a schedule of her income and outgoings. Mrs Delbourgo referred to Daff v Gyalui [2023] UKUT 134 where the Tribunal (the Deputy President, Martin Rodger KC) referred to the need in some cases for the FTT to take an “inquisitorial approach” and question a landlord about their financial circumstances where necessary. The third was that the FTT made an error of law in failing to deduct so much of the rent as was paid for the utilities consumed by the tenant in accordance with the Tribunal’s decision in Acheampong.

Mr McGowan argued that since the FTT was not taken to the appellant’s financial schedule by her legal representative it was acceptable for it not to say anything about it in its decision. He pointed out that the landlord in Daff had provided substantial information about her circumstances whereas in the present case the appellant provided very little. As to the utilities he conceded that the FTT made an error of law in that respect (as explained in the Tribunal’s decision in LDC (Ferry Lane) GP3 Ltd v Garro and others [2024] UKUT 40 (LC) and in Newell v Abbott [2024] UKUT 181 (LC) (both decisions of the Deputy President, Martin Rodger KC).

As the FTT’s decision has to be set aside in any event because of the failure to address the potential defence of reasonable excuse arising from the incorrect information on the website, I need not say very much about these points. As to Mrs Delbourgo’s first point, it is difficult to see how the appellant’s efforts, unsuccessful though they were, to regularise her position might not be regarded as mitigation even if she did not have a defence of reasonable excuse. Had the first ground of appeal failed I would have allowed it on this point.

As to the appellant’s financial circumstances, the statute (section 44(4) of the 2016 Act, see paragraph 11 above) requires the FTT to take them into account. Even in a case such as this one where the landlord was represented and the point was not raised, it is surprising that the FTT did not ask the advocate whether there was any material in the evidence or the bundle about the landlord’s means. Had it done so it would no doubt have been taken to the relevant page in the bundle. That would not have been an inquisitorial or in any way an unusual approach and might be regarded as a sensible way for the FTT to assure itself that it was complying with the statutory requirements. As to the utilities I need say no more in light of the Tribunal’s decisions referred to above.

As things stand the matter has to be remitted to the FTT for a re-hearing, and no doubt at a re-hearing the points above will be borne in mind.