[2024] UKUT 423 (LC)

It is apparent both from the appellant’s statement of case in the FTT and from the FTT’s decision itself that his argument about the notice challenged a number of the grounds set out in the Second Schedule to the notice on the basis that they did not match the statutory provisions, and also challenged the details given of the matters relied on by the tenants in the Third Schedule to the notice. In particular, the appellant said that ground 1 (the tenants’ loss of confidence in the management of the property) was not a valid ground. As to the breaches of covenant set out in the Third Schedule under ground 2, the appellant said that most of the matters complained of were not breaches of the landlord’s covenants in the lease. I do not need to set out the detail because of the way the FTT resolved the matter: at its paragraph 65 the FTT accepted that ground 1 was not a valid ground because it related to the appellant’s obligations under the agreement to manage the sub-lettings (see paragraph 9 above), but accepted that ground 2 was valid since it corresponded to section 24(2)(a)(i). It went on:

“The respondent argued that the Tribunal should not consider breaches of the obligation to repair and maintain the Property since this had not been included within the Notice. The Tribunal finds this issue is one that falls within ground 2 above and is therefore to be considered.”

That paragraph is opaque but appears to have been intended to say that the reference within the Third Schedule, under ground 1, to failure to repair and maintain in fact fell within the scope of ground 2 and so could validly be considered within that ground. That was a sensible approach since the notice was clearly saying that the matters relied upon by the tenants included that the property was in disrepair and infested with rats, which would obviously engage the landlord’s obligations under the lease. To ignore those matters just because they were set out under ground 1 when they were relevant to ground 2 would be obviously unfair.

What the FTT did not then do was to discuss the adequacy of the details given of the failure to repair and maintain.

Was that an error of law that invalidated the FTT’s decision? The answer to that is twofold. The first is that in my judgment the FTT did not need to deal with the point because it was not part of the appellant’s case in the FTT that the notice was defective in that way; he knew all about the complaints of disrepair and the rat infestation and was not saying that he was given insufficient detail about them. The second is that in any event, had the point been argued it would have been unsuccessful.

To explain my first point, about the appellant’s case, I start with Ms Gray’s skeleton argument in the appeal. She said that the appellant had raised consistently throughout the proceedings the point that the notice did not set out the matters that would be relied on by the tenant for the purposes of establishing the ground contained in section 24(2)(a) of the 1987 Act. In support of that submission Ms Gray referred to paragraph 24 of the appellant’s statement of case in the FTT and to paragraph 23 of her skeleton argument before the FTT.

Paragraph 24 of the appellant’s statement of case in fact referred to the “matters relied on” in support of the breaches alleged under Ground 2, none of which related to repair and maintenance. The appellant’s statement of case in the FTT did not suggest that he did not know what was the disrepair relied upon or that he did not know about the rat infestation. In his witness statement in the FTT the applicant discussed the allegations about the lifts, the heating system, the rat infestation, fire precautions and the entry of an unauthorised person. But again he did not suggest that any of that had come as a surprise to him. Paragraph 23 of Ms Gray’s skeleton argument in the FTT said this:

“23.

The Applicant now appears to rely on alleged breaches of the obligation

repair and maintain the Block, however these allegations were not raised (save

for in the most general fashion) in the preliminary notice and they accordingly

are unable to found an application for the appointment of a manager. There is

no expert evidence that demonstrates that the Block is out of repair. “

Again, there is no suggestion there that the appellant did not know what was complained of. The objection to the notice is a formal one, that the breaches were stated in too general terms but there is no suggestion that the appellant was confused. What appears to have been argued before the FTT was that the notice was invalid because the grounds themselves were incorrect, and in particular that ground 1 was not a valid ground; it was not argued that the material in the Third Schedule about the disrepair and the infestation were inadequate.

Second, had the point been argued it could not have succeeded; and indeed if I am wrong in supposing that the point was not argued, or not argued in that way, and if it is in fact the case that it was fully argued and the FTT failed to deal with it, then in my judgment the argument was doomed to failure.

I say that because the purpose of the requirement to “specify … the matters that would be relied on by the tenant for the purpose of establishing those grounds” is, as Ms Gray acknowledged, to inform the landlord of what it is that the tenant complains of. The answer to the question whether a particular notice achieves that purpose is inevitably fact-specific. There is no precise requirement in the statute; the instruction to “specify … the matters” does not tell us how much needs to be said, but what needs to be said is what the landlord needs to know.

If the allegation of disrepair had come as a surprise to the appellant then certainly the details given would be insufficient; but the appellant was well aware of the nature of the complaints made. There is no finding of fact by the FTT to that effect because that was not in issue before it; at no stage did the appellant say he was taken by surprise or insufficiently informed by the notice about the disrepair or the infestation. There is no suggestion to that effect in his statement of case, or his witness statement. Had he suggested as much the tenants would have disagreed and his evidence would have been challenged, on the basis of the correspondence in the bundle before the FTT which showed that these complaints were long-standing, and the FTT would then have had to make a finding about the extent of is awareness; but that did not happen because the appellant did not make that suggestion. What he did complain about was that there was not enough time given to do the tasks specified in the fourth schedule which I shall address under the second ground. But Ms Gray’s suggestion in the appeal that he had “no opportunity” to address the problems of disrepair and infestation because he did not know what the problems were was, I am afraid, obviously incorrect.

In those circumstances the notice did what it was supposed to do. It stated that the landlord was in breach of covenant; and it stated that the breaches of covenant concerned were disrepair and infestation. In other words, the appellant was alerted to the fact that the disrepair and rat infestation of which he was already well aware were among the reasons why the tenants said that he was in breach of his obligations.

Accordingly the notice was not invalidated by failure to set out in enough detail the matters relied upon by the tenants; it said all that it needed to say. To set aside the FTT’s decision on the basis that it did not decide the point would be pointless because the outcome would be the same in any event.

I have not referred in the discussion above to the Supreme Court’s decision in A1 Properties (Sunderland) Limited v Tudor Studios RTM Company Limited [2024] UKSC 27, to which both parties referred. That decision is about what happens when there has been a failure to follow the procedure set out in the statute; there has been no failure in the present case. If there had been insufficient detail given in the Third Schedule to the notice, then A1 Properties would have been engaged because the statute does not specify the consequences of a failure to meet the requirement to specify the matters relied on is one: although section 22 provides that no application can be made if no notice is given, if there are deficiencies within the notice the FTT can exercise its discretion to make an order nonetheless (section 24(7). But, as I say, none of that arises because the FTT was correct to find that the notice was valid.