[2025] UKUT 237 (LC)

It will be obvious from this review of the relevant procedural Rules that the proceedings in the FTT were set on a faulty course at the moment of their commencement. The tenant did not provide the name and address of the proper respondent and, as a result, the FTT was not in a position to comply with its own obligation under rule 29(1) to give notice of the proceedings to the respondent. Haart, the landlords’ agent, was not a proper respondent to the application, even though it gave the notice under section 13(2) proposing a new rent in its own name.

The tenant can readily be forgiven any error because the FTT’s standard form indicated to her that it would be sufficient to provide the name and address of her landlords’ agent. It may be that what the tenant did was not an error and complied with the Rules. That is because the list of information which rule 26(2) requires to be included with a notice of application is qualified by the words “unless a practice direction makes different provision”. Paragraph 11 and Schedule 11 of the FTT’s Practice Directions for residential property cases, published by the Senior President of Tribunals on 9 September 2013, requires that the prescribed form be used for applications under section 13 of the 1988 Act. The prescribed form is Rents 1, which makes different provisions from rule 26(2)(d) because it allows the name and address of a landlord’s agent to be given as an alternative to those of the landlord/respondent.

The prescribed form is, at best, unhelpful in that it either misrepresents or dispenses with the requirement of rule 26(d) that the name and address of the respondent be provided in the notice of application. The only proper respondent is the landlord, as the counterparty to the tenancy, the person on whose behalf the notice of increase was served, and the person with whom the tenant is in dispute. The form does require the tenant to supply copies of any tenancy agreement and the landlord’s notice of increase, which may include the name and address of the landlord, but the potential for misunderstanding or error when the FTT comes to serve the notice of application is highlighted by what appears to have happened in this case. The Practice Directions do not modify rule 29 and do not permit the FTT to give notice of the proceedings to anyone other than the landlord.

Whether it was an error, or whether it complied with the rule as modified by the Practice Direction and the prescribed form, the tenant’s misidentification of the respondent was no doubt the source of the FTT’s own administrative error in sending notice of the proceedings only to Haart, and not to the landlords themselves.

Haart was the landlords’ agent for the purpose of managing the premises, Haart had served the section 13(2) notice, and Haart filed a response to the application supporting the increase proposed in the notice. But none of those facts entitled the FTT to treat Haart as if it was a representative nominated by the landlords. The tenant could not invest Haart with any status or authority in the proceedings by naming it as the landlords’ agent. Only a notice under rule 14(2) given by the landlords themselves and informing the FTT that Haart had been appointed by them to act as their representative could provide the authority which the FTT required to enable it to deal directly with Haart, rather than with the landlords.

For these reasons I am satisfied that, because the FTT did not provide a copy of the application to the landlords, as required by rule 29, and did not give them notice of the hearing, as required by rule 32, the proceedings were conducted irregularly.

What is the consequence of that irregularity, and what should the Tribunal’s response to it be? As to the first of those questions, rule 8(1) is clear and is expressed in perfectly general terms. An irregularity resulting from a failure to comply with any provision of the Rules does not of itself render the proceedings or any step taken in the proceedings void. There is no reason to confine that dispensation to irregularities resulting from a failure by a party to comply with the Rules; it applies just as much to non-compliance by the FTT itself, including administrative lapses. It follows that the FTT’s decision was not void or ineffective simply because the landlords were not served with the proceedings or given notice of the hearing.

As to the second question, what should the Tribunal’s response to the irregularity be, it is necessary to refer to section 12 of the Tribunals, Courts and Enforcement Act 2007, which is concerned with the powers of this Tribunal when it hears appeals from the FTT. The Tribunal may only set the decision aside if it finds that “the making of the decision concerned involved the making of an error on a point of law”. The concept of an “error of law” is not narrowly understood and includes a material breach of the rules of natural justice (as Carnwath LJ explained in Railtrack plc v Guinness Limited [2003] EWCA Civ 188 at [51]). The same is true of other procedural irregularities if they are sufficiently serious to cause the decision of the FTT to be unjust. Osagie v Onwuka is an example of a case in which there had been a procedural irregularity but it was possible to be confident that it had made no difference to the outcome of the proceedings so that the decision of the FTT was not unfair and could be left undisturbed.

The irregularity in this case was undoubtedly serious. If the landlords were genuinely unaware of the proceedings, there would be no doubt in my mind that the FTT’s decision should be set aside and a new hearing directed to take place. The landlords now say that if they had been aware of the application they would have produced evidence to show that problems with the appliances and ventilation in the flat which the tenant relied on had been resolved before the notice of increase was served. The FTT took those problems into account by reducing the rent which it would otherwise have determined and can safely be assumed that fuller participation by the landlords might have made an important difference to the outcome.

It has not yet been determined whether the landlords were unaware of the proceedings, as they maintain. What if they were informed of the proceedings by Haart and made an informed choice not to participate but to leave Haart to represent their interests as best it could? In those circumstances it might be said that there would be nothing unfair or unjust in waiving the failure to serve the proceedings properly or give notice of the hearing to the landlords personally.

It is apparent from the FTT’s file that the landlords were not notified of the proceedings by the FTT itself. I do not know whether Haart notified the landlords that the proceedings had been served on it and sought their instructions, or whether Haart made its own decision not to attend the hearing without the landlords being aware that the proceedings were underway. In their notice of appeal the landlords say they were unaware of the proceedings and of the opportunity they had to make submissions, provide evidence and attend the hearing. There is no material before me which would justify me in disbelieving them and dismissing their assertion as untrue.

In Bank of Scotland v Pereira [2011] EWCA Civ 241, the Court of Appeal gave guidance on how an application under CPR 39.3 to set aside a judgment after a trial which one party had not attended. That guidance does not apply to Tribunals, but it is helpful by analogy. Lord Neuberger MR emphasised, at [53], that “in the great majority of cases, a judge hearing such an application should not allow oral evidence” and that this oral evidence and cross examination should be allowed “only in exceptional cases”. To do otherwise would be “inconvenient and time-consuming”, and “wherever possible” the court should scrutinise such applications and deal with them on the basis of written evidence.

In my judgment it is consistent with the Tribunal’s overriding objective for me to proceed in this appeal on the basis that the landlords were unaware of the proceedings. It would be disproportionate, and therefore inconsistent with the overriding objective, to require the FTT to conduct a hearing to establish whether what the landlords say about their state of knowledge is true. If further resources are to be devoted to this case, they should be devoted to consideration of evidence about the time at which the remedial work to the property was completed. The uncertainty over service has not been caused by either of the parties, or by accident, but by an omission by the FTT itself to follow its own Rules. That seems to me to justify affording the benefit of the doubt to the landlords.

On that basis the procedural irregularity did render the proceedings unfair, and the only possible disposal of the appeal is to set the decision aside and remit the proceedings to the FTT for redetermination.

This analysis is independent of any consideration of rule 34, which the Tribunal referred to when giving permission to appeal, but which I do not think adds anything of significance. The FTT conducted the hearing in the absence of the landlords or Haart because it assumed that notice of the application had come to the attention of the landlords, and that when Haart stated that they did not require a hearing and did not attend the hearing, they were doing so on the landlords’ instructions. Those assumptions would have been entirely justified if the proceedings had been sent to the landlords at their own address, rather than being sent to Haart. By filing a response to the application Haart provided support for the same assumptions. But Haart was not a nominated representative and nothing which it did could make it the landlords’ representative for the purpose of the proceedings, nor could it regularise the FTT’s procedural irregularity by filing a response.

If the FTT had appreciated that no notice of the proceedings had been given to the landlords themselves, and that Haart had not been properly nominated as their representative, it could have considered what remedial action to take under rule 8. That action would have involved either serving the application on the landlords or obtaining confirmation from them that Haart acted as their representative. Whether the omission to take that remedial action rendered the proceedings unfair raises the same factual question as before. For the same reasons I will answer that question in the landlords’ favour and will assume that they were unaware of the proceedings.