[2024] UKUT 00279 (LC)

This ground refers to what the FTT said at its paragraph 52, which I repeat for convenience:

“the Tribunal found that the RPI increase (of 13.4%) in that particular year (to December 2022) had been exceptional, and there had been less extreme fluctuations in the years before and after the Review. It was clear that the rise in the cost of living had impacted those living on limited income most severely, and the Tribunal found that this was a factor of significant weight in determining the appropriate pitch fee increase in this case.”

Mr Ward acknowledged that the FTT was entitled to take into account factors beyond those listed in paragraph 18; but the level of increase in the RPI in the relevant period is, he said, not one of them and in giving significant weight to this factor the FTT exceeded the bounds of its discretion.

I agree that there is no authority for the level of the RPI change being taken into account in determining whether the paragraph 20 presumption should be displaced. Other decisions of the FTT may have done so but are not authoritative. Is it nevertheless a factor that the FTT may take into account? Mr Ward argued that to do so is to subvert the statutory regime.

I agree. The statutory regime uses the RPI (nowadays the CPI) as the basis for the paragraph 20 presumption, and whilst an increase in line with the index is not an entitlement of the site owner the presumption provides an easy, uncontentious and objective method of calculating the increase where nothing unusual has happened in relation to the site. That easy calculation would be made complicated, and dispute would inevitably be provoked, if the level of change in the RPI were a factor that might displace the presumption. If it were such a factor then a number of other questions would arise: should there, conversely, be a bigger increase in the pitch fee if the change in the RPI is unusually low? If there is an unusually high increase is the presumption displaced for all occupiers, or only for those who can show that they are likely to be in difficulties as a result? How high is “exceptional”, as the FTT put it here? That latter question cannot be answered without consideration of economic factors and possibly expert economic evidence, making proceedings disproportionately complex and expensive. I do not believe that it could have been the intention of the legislature that the FTT should have to explore any of these questions or that the parties should be free to argue about them.

I take the view that in giving weight to the “exceptional” level of increase in the RPI the FTT took into account an irrelevant consideration, and its decision is set aside.