[2025] UKUT 151 (LC)

Both parties sent additional material to the Tribunal prior to the appeal hearing, for which no permission had been given, including purported tenancy agreements and witness statements. Mrs Entwhistle sought to challenge the FTT’s finding that it had been agreed that Ciaran was in occupation for the property as his home on 30 September 2022, and Mr Szymzcak applied for a witness summons to compel Ciaran to give evidence. I explained to the parties that matters that were agreed before the FTT could not now be challenged. None of the additional material was considered by the Tribunal and the hearing proceeded as set out in paragraph 2 of the permission to appeal. Mr Szymczak’s statement explaining his attempts to obtain the tenancy agreements of Scarlett Kennedy and Daniela Coates before the FTT hearing said this:

“I was not able to reach Scarlett and Daniela before the hearing. Scarlett didn’t respond to my messages and I wasn’t able to contact Daniela before the hearing due to a change of my phone I lost contact details and I had to retrieve her number from a backup of my old phone.”

Copies of Whatsapp messages in the appeal bundle indicated that Mr Szymzcak was in contact with Ms Kennedy briefly in October 2022, when he told her that the property had not had an HMO licence. Her Whatsapp message in reply said “Farah [Entwhistle] has actually been in contact with me and asked me not to give the dates of my tenancy. But I had no idea what it was in relation to and just ignored it.” There was then no contact between them for 21 months; when Mr Szymczak asked for a copy of her agreement on 29 June 2024 (three weeks before the hearing) there was no reply until he chased in September 2024, explaining that he was appealing the FTT decision. At that point Ms Kennedy sent him a copy of her agreement, apologised for not replying sooner, and said that his message had gone to her email archive and that when she saw it she assumed it was too late. As for Ms Coates, Mr Szymczak explained that he had not made any attempt to retrieve her contact details before the FTT hearing because she had arrived at the property shortly before he left and he had more contact with the other tenants.

I have to say that Mr Szymczak has not come close to showing that these two tenancy agreements could not with reasonable diligence have been produced to the FTT. So far as Ms Kennedy was concerned the question does not seem to have been asked until a very late stage. As to Ms Coates, no attempt was made at all before the FTT hearing. Mr Szymzcak explained that he did not think that he would need that evidence, and that he expected Mrs Entwhistle to accept that the property was an HMO that required a licence on 30 September 2022.

Mr Szymczak asserted that Mrs Entwhistle told the other tenants not to produce their agreements for him, and I have to consider whether that made it difficult for him to obtain them. So far as Ms Kennedy is concerned, the message in October 2022 was not a refusal to provide a copy of the agreement and there is no indication that Mr Szymczak actually asked for it at that stage A message sent three weeks before the hearing did not come to her attention in time, but she provided a copy readily when she became aware that he wanted one for the purposes of the appeal. So there was no reluctance to provide a copy, and it is a reasonable inference that had Mr Szymczak asked her in good time he would have been able to produce her tenancy agreement at the hearing.

As for Ms Coates, there is no suggestion (nor any evidence) that Mrs Entwhistle tried to interfere; there was simply no effort made to contact her.

The two documents are apparently credible, although Mrs Entwhistle does not agree that they are genuine. Had they been produced at first instance they might have had an influence on the outcome depending upon whether the FTT found that they were genuine and upon whether it found that Ms Coates actually moved into the property as her main residence in July 2022. I do not think that the FTT could have been sure of that on the basis of the tenancy agreement alone. But in any event Mr Szymczak fails at the first hurdle; he cannot show that the evidence could not with reasonable diligence have been produced to the FTT.