[2024] UKUT 69 (LC)

The substance of the appeal was that the FTT had been wrong to accept the tenants’ case that Mr Shah was their landlord. Mr Hart argued that the FTT’s conclusion was unsupported by the evidence and was one which no reasonable tribunal could have reached. The case was not put on the basis that the FTT had failed to give adequate reasons for its decision, although Mr Hart was critical of the absence of any detailed explanation for the FTT’s finding that it preferred the evidence of the tenants as to the circumstances of the letting. Mr Hart made three main points and a host of subsidiary points in his written argument in support of the proposition that no reasonable tribunal could have accepted the tenants’ case.

First, he argued that the FTT had failed to consider what he called “the missing evidence” relating to dealings between the original letting agent and the tenants after they had provided their names and contact details by the email of 23 July 2020 and before they had moved in on 5 August 2020. In particular, there was no evidence of a response from the agent accepting that the letting would be to all six respondents. Mr Hart suggested that without a confirmation from the agent that the suggested occupation of the property by six individuals was acceptable the FTT ought not to have been satisfied that that had been the basis of the arrangement.

This submission entirely overlooks the fact that a tenancy agreement in the form used by Empire Lettings and bearing its name had been prepared by 4 August and included the names of all six tenants. The agency was clearly satisfied that it was appropriate for the house to be let to the six tenants because it had them sign the document and its employee Mr Zaman witnessed their signatures. The FTT also found that there was then another tenancy agreement with all six names. Mr Shah did not give evidence of any communication he had with the agent which might have led to the original proposal being rejigged before one of the agreements was signed by him or on his behalf. The so-called “missing evidence” was evidence of communications by his or his company’s agent yet he produced no correspondence with Empire Lettings giving it instructions. In the face of that gap, the FTT was entitled to find the landlord’s agent was aware that letting had (originally at least) been intended to be of the whole house to six people each with a different family name and email addresses.

Secondly, Mr Hart criticised the FTT’s acceptance of the tenants’ evidence and its failure to note the discrepancies between their witness statements and their oral evidence. In particular, they had acknowledged that the tenancy agreement of which they had a copy had not been signed by Miss McLaughlin but by one of her fellow tenants on her behalf. Mr Hart submitted that the FTT should have found that Miss McLaughlin had not provided a truthful version of events in her witness statement and that the other applicants had gone along with it, which should have cast doubt on the whole of their account of the letting which only emerged in its final form from the witness box.

The difficulty with Mr Hart’s second proposition is that he cross-examined Miss McLaughlin at the hearing and she acknowledged that she had not signed the document. The FTT heard that evidence but nevertheless accepted the thrust of her and the other tenants’ case. The FTT also found that the document relied on by the tenants was not the final version of the tenancy agreement and that a further version had been signed by all six of them and by or on behalf of the landlord. The evidence of who had signed the first version was therefore relevant only or mainly on the issue of credibility, and that was how Mr Hart himself made use of it.

Thirdly, Mr Hart said that the FTT had glossed over the fact that the witness statements of the six tenants were effectively copies of one another. That is true of five of the six statements (the sixth tenant recalled that no completed tenancy agreement had ever been signed). The FTT did not comment on this feature of the evidence, other than by referring to the witness statements as containing “a consistent account of the circumstances surrounding the lettings.” The tenants were represented by an advocacy group which, I assume, assisted in the preparation of the evidence; as usual with such statements, too much attention is devoted to finding fault with the property or with the landlord’s conduct, and too little with the basic facts about the letting.

The FTT would have been justified in expressing some scepticism in its decision about the quality of the evidence it was presented with in their own words. A witness statement should be the witness’s own account of the facts about which they can give evidence. The more closely two statements resemble each other, the more their reliability is likely to be called into question. But in this case the FTT had more than the mirror image statements. It reached its conclusion that the evidence of the tenants was to be accepted after four had given oral evidence and been cross-examined by Mr Hart. Moreover, in closing remarks submitted in writing several weeks after the hearing, a prominent part of Mr Hart’s case focussed on his criticisms of the witness statements and of the way in which the tenants had given their evidence. The FTT nevertheless rejected that case and accepted the tenants’ version.

It is not difficult to understand why the FTT preferred the tenants’ evidence. There was no evidence at all from Mr Shah about the circumstances in which the agent acting for him or for his company had been instructed or had arranged the letting. He was not present when the documents were signed and the only alternative version of events that he was able to suggest was entirely speculative. The evidence of four of the tenants was that they had signed a document which had also been signed on behalf of the landlord to replace the original version which only they had signed but in which Mr Shah had been named as landlord. The FTT’s conclusion that the landlord identified in that tenancy agreement was the same landlord as was named in the original version was consistent with the evidence it received. Nor was it contradicted by other direct evidence. The letting agency appears to have been chaotic and was criticised both by Mr Shah and by the tenants for not providing them with copies of the final documents, but that does not make one version of events any more likely than the other.

Mr Hart made a number of criticisms of the FTT on smaller points of evidence which I should deal with.

The FTT recorded that the appellants’ case was that Mr Shah only became aware that there were six tenants when he received the rent repayment order application from the FTT. This was wrong, Mr Hart submitted, as Mr Shah’s witness statement stated that he had been aware from February 2021 that there were six individuals residing at the property, but that he was unaware of the identity of three of them until he received the application. But the proposition which the FTT recorded was a direct quotation from the appellant’s statement of case submitted on 16 December 2021 (only a few days before the witness statement) in paragraph 2 of which it said, “The respondent has only become aware following receiving the RRO application in this case that the property was let to six individuals from different households.”

The FTT decided that it was not credible that a landlord would let property at a rent of £2,500 per month without having details of the tenants or their financial situation or that they would have accepted only the first and last pages of a tenancy agreement. Mr Hart countered this by referring to aspects of Mr Shah’s evidence which the FTT had not mentioned. He had chased the letting agents for complete documents but had found them to be uncontactable; the covid 19 pandemic had prevented him from attending the property; his dissatisfaction with the original letting agents led to their replacement by Provident Management; the rent was then paid to the company and would have been considerably higher if the property had been intended to be let to six individuals. All these criticisms establish is that the letting agency was not doing a good job. The first three month’s rent were received by the agency in monthly instalments between August and October, and the new arrangements by which rent was payable to the company casts no light on the identity of the landlord at the commencement of the letting. The FTT found that the company was receiving rent as agent for Mr Shah; that was an inference that it was entitled to draw from the fact the letting was arranged in Mr Shah’s name (as the FTT found) and the rent was eventually paid to the company. While the FTT could certainly have provided a fuller explanation of its decision, the additional facts it did not refer to do not establish that its finding that Mr Shah was the landlord was plainly wrong.

Although Mr Hart made many other criticisms of the FTT’s decision none of them advanced the case further than those I have already considered. The only supporting point which I should deal with further is the suggestion that the FTT ought to have permitted additional evidence to be adduced. That additional evidence was in the form of an email from Empire Lettings dated 17 August 2020. It was addressed to Mr Shah personally and it was said to have been provided by him just before the original FTT hearing. The FTT refused to permit it to be put in evidence because it was produced for the first time at the hearing. The FTT did not mention the email or the request to rely on it in its decision and I infer that it did not read it either. Mr Hart did not develop his submission that the FTT should have permitted reliance on the email nor did he refer me to any directions about the production of evidence; I assume these were standard directions which required the parties to provide copies of any documents on which they wished to rely in good time before the hearing. The FTT is entitled to considerable latitude in case management matters and there are no grounds on which I could conclude that it was not entitled to refuse to admit this document on the day of the hearing. The email itself sheds no light at all on the identity of the landlord but refers instead to an attached invoice which has not been produced. That invoice might have been illuminating, as it might have shown whether the agents considered their client to be Mr Shah personally or his company, but no request appears to have been made to rely on the invoice. The withholding of the invoice would have been a separate ground for the FTT to refuse the request to rely on the covering letter.

On Mr Shah’s case, which the FTT said specifically that it did not find credible, neither he nor anyone else on behalf of the company had signed any agreement with any number of the tenants. I have no doubt that the FTT was entitled to reject that case, and that there was sufficient evidence before it to enable it to find, as it did, that Mr Shah or someone on his behalf had signed an agreement with all six tenants, naming him as landlord, but that no copy had then been provided to the tenants. It is quite impossible to conclude that those findings were “plainly wrong”.

For these reasons I dismiss the appeal on ground 1. Despite Mr Hart’s skilful submissions Mr Shah has failed to discharge the heavy burden of demonstrating that the FTT was plainly wrong to find that he was the landlord.