[2024] UKUT 294 (LC)

As I noted above, the FTT gave four separate decisions because each application was slightly different, and not all the written statements are the same.

Mrs Brazier and Mr Askew’s written statements each contain clause 3(b). The FTT therefore turned to the Tribunal’s decisions in Britaniacrest and in PR Hardman, although it did not mention the Court of Appeal’s decision in PR Hardman. It said in its decision for Mrs Brazier:

“61.

The Deputy President [in PR Hardman] went on to confirm adherence to the express term in Britaniacrest which was that paragraph 3(b) … did not impose a general service charge on the occupiers but is concerned solely with the reimbursement of specific outgoings incurred by the site owner in meeting liabilities to third parties. However, paragraph 3(b) begins with the charges for general and water rates and continues to state “and charges in respect of electricity gas water telephone and other services”. He found that the reference to “other services” must amount to services which are analogous to other types of service already listed and added that the common characteristic of the list of services is that each service is generally supplied by a third party and quantified by a third party.”

The FTT noted that paragraph 3(b) in Mrs Brazier’s written statement is in “similar terms” (in fact they are identical) and concluded in both decisions:

“64.

For that reason, the Tribunal finds that the Respondent is entitled to recover fees incurred by third parties on its behalf in relation to (or in respect of) “electricity gas water telephone and other services”. As the charges by POW for manual meter reading are charges by a third party in respect of services, the Tribunal finds that the Respondent is entitled to recover sums charged by POW Utilities from the Applicant.”

For the same reason (“the case of PR Hardman would also apply to this matter”) the FTT decided at paragraph 69 that the 41p daily administration charge was payable.

As to Mr Askew, the FTT considered first the 41p daily administration charge; it reproduced at its paragraphs 57 the words of its paragraph 61 in Mrs Brazier’s decision, and reached the same conclusion at its paragraph 60 for Mr Askew. It then looked at the manual meter reading charges, and concluded that they too were payable for the same reason. Thus the wording of the Brazier decision in relation to the meter reading charge has been re-used in the Askew decision for the 41p daily charge, and the Brazier wording for the 41p daily charge has been reproduced in the context of the meter reading charge. But that does not matter; in each case the FTT took the view that the decision in PR Hardman settled the point in the site owner’s favour.

Ms Stanton’s and Mr and Mrs Mackinnon’s agreements do not contain clause 3(b). The FTT approached the two payments in the same way, reproducing the same discussion of the Upper Tribunal’s decision in PR Hardman (again with no mention of the Court of Appeal). It referred to the statutory implied term in paragraph 21 of the Schedule (paragraph 14 above), although it referred to it as a provision in the written statement in each case, and reached the same conclusion about the meter reading and the 41p daily charge in Ms Stanton’s case and about the 41p charge only in the Mackinnons’ case (I think because they had a smart meter fitted at an early stage).