[2024] UKUT 120 (LC)

Section 27A of the Landlord and Tenant Act 1985 enables the FTT to decide whether service charges are payable by leaseholders:

“(1)

An application may be made to [the FTT] for a determination whether a service charge is payable and, if it is, as to—

(a)

the person by whom it is payable,

(b)

the person to whom it is payable,

(c)

the amount which is payable,

(d)

the date at or by which it is payable, and

(e)

the manner in which it is payable.”

It is sometimes said that the jurisdiction is to determine the “reasonableness and payability” of service charges, but that is inaccurate as well as inelegant. The jurisdiction is to decide whether a service charge is payable. It might not be payable because, for example, it falls foul of section 19 of the 1985 Act because the cost was not reasonably incurred, or the work or services provided were not of a reasonable standard. Another reason why a service charge might not be payable is because it is not one that the landlord is entitled by the lease to charge, and that is what is said in these proceedings.

As we have seen above, the appellants say that the respondent was not entitled by the lease to designate the gym costs as payable in full by the residential leaseholders. So they are challenging, not the level of a cost or the standard of work done, but a decision taken by the landlord; and that brings the Tribunal back again to the decision of the Supreme Court in Williams and others v Aviva Ground Rent Investors GP Ltd [2023] UKSC 6 (“Aviva”). I am grateful for Mr Morris’ very clear explanation of that decision and of the long line of cases that preceded and followed it, from which I learned a lot and with which, save where I indicate otherwise, Mr Sandham agreed.