[2025] UKUT 133 (LC)

The paragraphs quoted above, 1 to 3, 11 and 12 of the FTT’s decision, were the entirety of its decision about whether the charge for the major works was payable, aside from its decision about the consultation process (and further paragraphs setting out the statutory provisions). It can be seen that the FTT said nothing about the date of the demand or of the application, nor about the basis of the challenge as set out in the application, and nothing was said about the extent of the work except that it was principally the painting of window frames. It is not possible to understand from the decision the nature of the whole of the work charged for, nor the extent of the work done other than paintwork. I understand from the material in the appeal that the work involved maintaining 41 windows, 5 downpipes, 4 entrance doors, the whole two storey build fascia and soffits, and a cast iron staircase, but it is not possible to discern from the FTT’s decision said whether it was aware of that nor if it was, what it thought about the quality of the work other than paintwork.

The additional reasons given are of no assistance; they give the impression that what the FTT inspected was Mr Ortet’s flat rather than the whole block. The “award” of £1,000 is made in respect of other external work but that work is not specified beyond “including the soffits etc”. Whether that work was of a reasonable standard is not known and it remains impossible for the appellant to understand how the FTT arrived at the sum of £1,000.

The FTT’s comment that the appellant should have used a different contractor is also inexplicable; the terms of the contract were before the FTT, yet it did not explain why it took the view that the appellant should have put itself in breach of the terms of that contract by moving to a different contractor.

The FTT’s decision was not properly explained and is set aside.

Another major omission from the FTT’s decision was the fact that the service charge demand was demanded in March 2023 and payable before the work was done. Mr Ortet’s application was not about the quality of the work, but it appears that he raised his concerns about it with the FTT after the work was done in the summer of 2023. Mr Ortet explained to me at the hearing that he had raised this with the FTT; neither Mr Ortet nor the appellant has provided to the Tribunal their statements of case nor any witness statements made in the FTT so it is not possible for me to see what was said and when). The FTT made a decision about the quality of the work; yet the service charge was demanded before the work was done and should have been assessed in accordance with section 19(2) of the 1985 Act in terms of whether it was a reasonable charge to impose at that stage. There has been no determination of Mr Ortet’s challenge to the reasonableness of the charge on the basis that the work was unnecessary.

I was told by Ms Poulter that the final demand for the costs of the external decoration will be made in December 2025. It will be open to Mr Ortet to challenge that final charge if he still regards the work as sub-standard (the appellant explained that more remedial work was done after the FTT hearing in May 2024). I suggested to the parties at the hearing that in view of that there is no point in the FTT now re-determining the reasonableness of the interim demand because the final demand is going to be made relatively soon. A decision made now about whether the 2023 charge was reasonable would not affect whether the final demand is in due course going to be payable. Both parties agreed, and Ms Poulter confirmed that the appellant would not seek to enforce payment of the March 2023 invoice in the meantime.

Both parties agreed that in setting aside the FTT’s decision I should remit the matter to the FTT on the basis that Mr Ortet’s application of April 2023 is now stayed pending the issuing of the final demand in respect of these works in December 2023. If Mr Ortet makes an application to the FTT in respect of the final demand then it will be appropriate for his application of April 2023 to be re-determined at the same time, because the FTT has made no decision on his claim that the work was unnecessary. On the other hand if there is no dispute about the final charge then there will be no need for the 2023 application to be pursued and the FTT will be able to dismiss it. Either party may apply to the FTT for directions at any stage.

Mr Ortet asked at the hearing for a direction under section 20C of the Landlord and Tenant Act 1985 that the landlord should not be permitted to charge its costs in the appeal as a service charge; Ms Poulter made no objection to that application and I make the order requested.