[2024] UKUT 81 (LC)

It will be clear from what I said above about Cain that I do not accept Mr Walsh’s argument. Indeed, in view of the facts in Cain it is not realistic to draw from it the proposition that the more faithfully and regularly the leaseholder pays service charges the less opportunity he or she has to seek a determination under section 27A. But insofar as Cain did decide that a series of payments is sufficient without more to indicate agreement I take the view that it was wrongly decided and Mr Walsh’s argument cannot succeed.

However, I remain unclear what the FTT decided that the appellants had agreed. If it thought that the appellants had agreed liability for the interim charges, or that they had agreed not to challenge the demanding of interim charges on an estate-wide basis, then it would be difficult to disagree, at least for the first three years in question (2012/13 to 2014/15; Ms Gorrara started to express disquiet during 2016, and made clear early in 2017 so the position is not the same as regards the charge for 2015/16). The FTT’s decision begins in paragraph 1 with the following statement:

“This case concerns a challenge to service charges levied upon the Applicants for service charge years 2012/13, 2013/14, 2014/15, 2015/16/ 2016/17, 2017/18, 2018/19, and 2019/20” (emphasis added)

That might indicate that the FTT thought the challenge was to liability for the interim charges.

But if that is what the FTT decided then it was unnecessary, since Ms Gourlay said at the FTT hearing and has confirmed on appeal that the interim charges are not in dispute. If that was what the FTT decided that leaves the appellants free to challenge the final charges for those four years.

If on the other hand the FTT intended to decide that the appellants had admitted or agreed the final charges – not yet demanded – from 2012/13 to 2015/16 then the FTT was clearly in error. It is not possible to understand, and the FTT has not explained, how agreement that interim charges are payable means agreement also to the final charges based on costs actually incurred. The appellants do not know what costs were incurred for Block E. They cannot be said to have delayed in challenging them because none have yet been demanded.

Accordingly the appeal succeeds on this ground; if the FTT decided that the appellants have agreed or admitted the final service charges for the years 2012/13 to 2015/16 that finding is set aside.