[2024] UKUT 109 (LC)

For these reasons I allow the appeal.

On an appeal, having set aside the decision of the FTT, the Tribunal has power either to remit the case to the FTT with directions for its reconsideration, or to re-make the decision (section 12(2), Tribunals, Courts and Enforcement Act 2007). If it decides to re-make the decision the Tribunal may make any decision which the FTT could make and may make such findings of fact as it considers appropriate (section 12(4)).

I am unable to make a determination of my own based on the facts found by the FTT and I am unable to make any further findings of fact on the basis of the material which was before it. How should I proceed in this situation? The FTT chose to soldier on in the face of inadequate evidence and poorly developed argument, but it need not have done so. The first and most basic question was whether the applicant had demonstrated that the premises over which it sought to acquire the right to manage were premises to which Chapter 1 of Part 2 of the 2002 Act applied. It provided no evidence on that issue. The parties had each agreed that the application should be determined without a hearing and there was no obligation on the FTT to conduct an inspection of its own to obtain evidence which the parties had neglected to provide (nor is there any such obligation on this Tribunal). In the circumstances the only options available to the FTT were to dismiss the application as unproven or to give directions for additional evidence.

Sending the matter back to the FTT for reconsideration of the current application seems to me to be the least satisfactory disposal of this appeal. The application has not been properly thought through and is vulnerable on a number of fronts, not least on the fundamental question of what premises below ground level, if any, are included in the claim and whether any or all of the components of those premises are self-contained. The better course, for both parties, is to dismiss the application as unproven, and to leave the qualifying tenants to consider the issues properly before serving such further notices and making such further application or applications as may be appropriate.

The appeal is therefore allowed but, after reconsideration of the application for a determination that the appellant is entitled to acquire the right to manage, that application is dismissed.