[2025] UKUT 157 (LC)

Decision contrary to the evidence

Equally fatal to the FTT’s decision is that it was taken contrary to the evidence before it and gave no reason for its disagreement. Mr Selby KC referred to Re B (Care: Expert Witnesses) [1006] 1 FLR 667 where Butler-Sloss LJ said 674F:

“… it is important to remember that the decision is that of the Judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts. As Ward, LJ said, Judges are not expected to suspend judicial belief simply because the evidence is given by an expert. An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for a Judge to give reasons for disagreeing with experts' conclusions or recommendations. … A Judge cannot substitute his views for the views of the experts without some evidence to support what it is he concludes.”

We have already observed that the MAF report, prepared by qualified experts whose competence was not challenged before the FTT, was a comprehensive survey of the building. It considered the street-facing walls and balconies, the walkways, the bin stores, escape arrangements and firefighting capacity and concluded that no remediation was needed. The BEFS report too examined those items that were referred to it and concluded that no action was needed. No other evidence was presented to the FTT.

Why the FTT disagreed with that evidence we do not know. Its views about the Additional Items, or rather most of them – some are not even mentioned in its decision, as to which see paragraph 64 below – are set out in six paragraphs, on a single page, and consist only of assertions. For example, the FTT said this about the walkways:

“Walkways: It is of vital importance in fire safety risk terms to ensure that

the walkways are a safe route for both residents to escape and firefighters

to gain access to the floors at all levels. The walkways should be

constructed of non-combustible materials.”

That is all. No reason is given for the FTT’s disagreement with the assessment, in both the expert reports before it, that the walkways would present a low risk once the cladding was removed. The following paragraphs, relating to balconies, bin stores and so on, present the same difficulty. Either the FTT had no reason for disagreeing with the experts’ opinions or it did not give its reasons; either way, the decision has to be set aside.