[2024] UKUT 314 (LC)

As the Court of Appeal pointed out in Mooney v Whiteland [2023] EWCA Civ 67, jurisdiction to determine questions which arise under the 1988 Act is divided between the County Court and the appropriate tribunal (which in England is the FTT). By section 40(1), 1988 Act the Court has sole jurisdiction to determine any question which is not within the jurisdiction of the tribunal by virtue of a provision of the Act. Mooney concerned the validity of a landlord’s notice under section 13(2) proposing an increase in rent; the premises were in Wales, so the appropriate tribunal was the rent assessment committee rather than the FTT.

The Court of Appeal held that, as far as rent is concerned, the jurisdiction of the FTT is to determine an appropriate rent, having regard to market conditions and disregarding the various matters specified in section 14(2). No provision in the 1988 Act confers jurisdiction on the FTT to determine whether a section 13(2) notice is valid. As a result, only the Court could make a determination on that question which would bind the parties. The same must be true of a tenant’s application to the FTT under section 13(4); only the County Court can make a binding determination on the validity of such an application.

Where does that leave the FTT where it has received an application under section 13(2) the validity of which is in doubt? Is it required to tell the applicant to start proceedings in the County Court to resolve that question, or is it entitled to take a view of its own? In Mooney the answer was given by Males LJ (with whom Snowden and Thirwall LLJ agreed) at [48], as follows:

“That is not to say that a rent assessment committee may not sometimes need to take a view whether a notice is valid. If it considers that a notice is invalid, it may decline to proceed until the question has been determined by the court. Conversely, if it considers that a notice is valid and that objections are without substance, it may proceed to determine the appropriate rent, but its determination will not prevent a tenant from disputing the validity of the notice.”

Any court or tribunal is entitled to satisfy itself that it has jurisdiction in a matter brought before it. In a case under the 1988 Act, the FTT may therefore decide for itself whether a notice is valid and whether it has jurisdiction to determine a rent; and its decision may be the subject of an appeal to this Tribunal. But a decision by the FTT (or by this Tribunal) that the FTT does or does not have jurisdiction will not bind the parties and the same question could be raised again in the County Court.