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The proposed cross-appeal
The proposed cross-appeal
When they filed their respondents’ notice, the respondents included grounds of cross-appeal for which they sought the Tribunal’s permission. Having considered those grounds, the Tribunal directed that the application for permission to cross-appeal would be considered at the hearing of the appeal and, if permission was granted, the cross-appeal would be determined at the same hearing.
The original grounds of cross appeal raised four separate issues each of which was concerned with the amount of the rent which the FTT ordered to be repaid. They were:
That the FTT had given insufficient consideration to the respondents’ complaints about the condition of the property and had failed to adjust the award upwards to take account of them.
That the FTT had been wrong in principle to reduce the amount of the rent to be repaid because the landlord met the cost of utilities both because there was insufficient evidence of the cost incurred and because it any such deduction was inconsistent with section 44, Housing and Planning Act 2016 and the definition of “rent” in section 56.
That the FTT had been wrong to treat a failure to obtain an HMO licence as an offence which was not “at the most serious end of the scale”.
That the FTT’s award did not reflect the Upper Tribunal’s guidance that higher awards should be made in cases involving professional landlords.
In his oral presentation Mr Penny did not pursue ground 3 and combined parts of the other written grounds to focus on two propositions, namely (1) that the FTT had failed to take sufficient account of material factors in assessing the sum to be repaid, and (2) that the FTT had erred in law by reducing the amount of the rent to be repaid because the landlord had paid for the cost of utilities.
Having heard the oral argument I refuse permission to appeal on the first of Mr Penny’s grounds of appeal (which combined all or parts of the original grounds 1 and 4). The FTT formed a negative view of the respondents’ case about the condition of the flats and the various other allegations of “misconduct” levelled against their landlord and there is no basis on which this Tribunal, which has not heard the evidence or been taken through the relevant written records, could reach a different conclusion. The FTT also took account of the scale of the landlord’s business. When a tribunal makes an assessment involving a large number of different considerations, unless an appellant can point to some clear error such as a failure to take account of something relevant, or taking account something irrelevant, or a result which falls outside a rational range, it is not for this Tribunal to interfere with that assessment simply because more weight might have been given to one factor or another.
I grant permission to appeal on the second of Mr Penny’s grounds, to the extent that it raises a question of principle of general application. I refuse permission on that part of the ground which challenges the FTT’s assessment of the sufficiency of the evidence relied on by the appellant to demonstrate the cost it incurred in the provision of utilities.