[2025] UKUT 173 (LC)

Pinewood House is a modern block which was developed by Mr Webber. He owns four of the twelve flats and, except for one year, he has always preferred to manage the building himself.

Ms Syed acquired her lease in 2014. In July 2023 she applied to the FTT under section 27A(1), Landlord and Tenant Act 1985 for a determination of her liability to pay service charges in each of the nine years since her acquisition. By the time she made her application, Ms Syed had paid all of the service charges which had been demanded by Mr Webber, but since at least 2017 she had been making it clear to him that she was dissatisfied with the management of the building and the information she received to support the service charge demands.

Section 27A includes the following limitation on the making of applications to the FTT, in subsection (4)(a) and (5):

In Cain v London Borough of Islington [2015] UKUT 542 (LC) this Tribunal (HHJ Gerald) held that, notwithstanding section 27A(5), a tribunal was entitled to infer that a service charge has been admitted or agreed from a pattern of payment without any challenge. More recently, in G & A Gorrara Ltd v Kenilworth Court Block E RTM Co Ltd [2024] UKUT 81 (LC), the Tribunal (Judge Cooke), emphasised that an agreement or admission cannot be inferred from payment alone and that something more than just payment is required. In Cain that something more which invited the inference of agreement was that the tenant had waited six years after making the last of the payments before challenging the charges.

Mr Webber asked the FTT not to make a determination on Ms Syed’s application because, he said, she ought to be taken to have agreed all of the charges because she had paid them all, after subjecting him to rigorous questioning about what they were for and why they were said to be justified.

The FTT did not accept Mr Webber’s argument. It made this finding:

“Whilst she may not have used the words ‘without prejudice’ or ‘payment under protest’ it is clear that Ms Syed has protested the service charges at every turn and frequently referred to past protests or disputes. The Tribunal finds that she continued to dispute the charges whilst making payment and therefore cannot be said to have admitted the charges were reasonable.”

The material put before the FTT by the parties included selected email communications between them since 2017. The record was incomplete but the extracts I was shown included several threats by Mr Webber that if payment was not received he would commence proceedings to forfeit Ms Syed’s lease. The material did not show when Ms Syed paid the service charges, but she told me that she did so in response to Mr Webber’s threats.

For the purpose of the appeal, Mr Webber wanted to refer to additional material which he said evidenced Ms Syed’s agreement to the charges at the time she paid them. I am not prepared to take into account documents which were not shown to the FTT, as this is an appeal and there is no good reason why they could not have been produced at the original hearing.

Nor am I prepared to interfere with the FTT’s assessment that the material it was shown, and what was said about it by the parties during the hearing, showed that Ms Syed continued to dispute the charges while making payment. That was a finding of primary fact which cannot be contradicted on appeal by material which the FTT did not see.

Additionally, although what the parties did and what they wrote in their exchanges is a matter of record, whether an agreement should be inferred from those exchanges is not simply a question of fact. It involves an assessment or evaluation of the whole of the relevant circumstances. Unless it can be shown that the FTT made some fundamental error in its evaluation, such as by overlooking some important communication which it had the opportunity of considering, an appeal is not an occasion for this Tribunal to undertake a new evaluation of its own. The purpose of an appeal is to correct errors, where they can be seen to have occurred. Mr Webber has not demonstrated that the FTT made an error, based on the material shown to it and I therefore refuse the appeal on ground 1.