[2024] UKUT 294 (LC)

Two points are common to all four appeals.

First, Ms Ava explained the reasons why the respondent has engaged POW, pursuant to its duties to use best endeavours, or to “do everything it reasonably can” to provide services (see paragraph 5 above). A previous agent had put the site into arrears by failing to pay the utility providers, and the respondent in appointing POW was taking what it regarded as the best option for the occupiers. Moreover, it did not believe that it was in the interests of the occupiers to go back to pre-payment meters, which was what it proposed to do if the appeal was successful. None of that is relevant to the outcome of the appeal, which is simply about the occupiers’ liability to make these two forms of payment to POW as agent for the respondent.

Second, it will be clear from what I have said above that the FTT has misunderstood what the Tribunal and the Court of Appeal said in PR Hardman. Clause 3(b), and the implied term at paragraph 21 of the Schedule to the statute, entitle the site owner only to recover from the occupier the unit cost of gas and electricity that it pays itself to the utility provider. No other charge is authorised; all administration costs are subsumed in the pitch fee in the absence of an express provision for a service charge. As noted above, POW is not a utility provider and it is clear from Britaniacrest and from PR Hardman that the site owner is not entitled to pass on POW’s charges to the occupiers.

The respondents’ argument, which the FTT accepted, was that as a third party it is charging the site provider for the administration of the gas and electricity, that the site owner is entitled on the authority of PR Hardman to recoup those charges from the occupiers, and that the respondent is then recovering those charges from the occupiers on the site owner’s behalf. There is some dispute of fact, I think, as to whether POW really is charging the respondent for its administration and for the meter readings, and I am not sure that the FTT resolved that; but even if the position is as the respondent puts it, the FTT in accepting its argument misunderstood the decision of the Tribunal in PR Hardman and ignored that of the Court of Appeal. The site owner is not entitled to charge the occupiers for the administration of charges for gas and electricity, whether it does it itself or has it done by a third party. The FTT’s misunderstanding of the authorities leads to the position that while the site owner cannot charge for his own administration he can create a liability to a third party for that administration and then charge the occupiers just because a third party is involved, which is obviously wrong.

That disposes of all four appeals; Ms Ava made some further points which I discuss below but which do not assist the respondent.