[2025] UKUT 246 (LC)

I have been taken through the relevant correspondence and directions by Mr Upton this morning and a number of matters are clear.

By the time of the case management hearing on 25 November, it was agreed that the manager's application and the appellants’ application should be considered together. For example, on 8 November, the appellants’ solicitors wrote to all relevant parties, including the FTT, describing the two applications as “inextricably linked” and arguing they ought to be heard together.

It was also agreed that the applications would take time and would require an exchange of evidence, which would make it impossible for them to be heard on 25 November. Time estimates of between three and five days was proposed for a hearing of both applications and, although the parties may have differed within that spectrum, there was a consensus that the applications could not be disposed of on 25 November.

It was recognised that there was some urgency in resolving an issue about information which the appellants wished the manager to provide to enable them to obtain a building assessment certificate (a document issued in respect of higher risk buildings by the Building Safety Regulator which the appellants were required to seek as accountable persons). That issue was separate from the main substance of the applications concerning who should progress remediation. The appellants wanted an early hearing of those applications but they did not suggest that the matter was so urgent that it required to be determined immediately.

Finally, all of those who attended the case management hearing did so in the expectation that the FTT would deal with case management and not with the substance of the applications. That expectation is reflected in a note prepared by Mr Justin Bates KC, who appeared for the appellants at the hearing on 25 November, where he posed the question, “What to do today?”. His answer was that if there was a dispute, which plainly there was, the FTT should give urgent directions to enable the matter to be decided on the basis of written representations in advance of 15 December 2024, a date by which the appellants were required to provide information in connection with their application for a building assessment certificate.

The position which the appellants themselves adopted at that hearing was therefore that the FTT should not determine either their own or the manager's application and that instead it should give directions. That is exactly what the FTT did; it managed the case.

The debate before the FTT appears to have been presented as involving a choice, either to determine the applications in advance of the final hearing or to consider them with all other issues at that hearing. The FTT prefaced the relevant part of its decision with the question whether the appellants’ application to vary the Order should be heard in advance of the final hearing. It decided that it should not, and gave the following reasons.

First, that this Tribunal's decision of March 2024 clearly contemplated that on an application to vary or discharge the Order, section 24(9A) of the Landlord and Tenant Act 1987 would oblige the FTT to consider whether there was a risk of recurrence of the circumstances which gave rise to the making of the Order, and if it concluded that there was, it might decline to vary the Order, even where its terms overlap with Part 4 duties. Any decision on the risk of recurrence would inevitably require evidence which would be likely to be the same evidence as would be relied on at the final hearing in any event. The FTT said that this was not an application which could possibly be decided on submissions alone, an assessment reflecting the consensus between the parties before the hearing.

Secondly, as regards the risk of prosecution on which the appellants had relied, the FTT continued:

Those were the reasons the FTT gave for its decision to hear the appellants’ application at the final hearing and not before. Having heard that ruling the manager did not press for any earlier decision on his own application and the FTT was then able to give appropriate directions.

The FTT also recorded that it had been informed by the Secretary of State's representative, in attendance because of the remediation proceedings, that the Fund, or rather MHCLG, the government department which sponsors the Fund, had confirmed to the manager that it was content to progress his application for support from the Fund even though he was not an accountable person. That seems to have been a recent change, and is an interesting reflection on the approach of MHCLG to the involvement of a tribunal appointed manager; it is also perhaps some recognition of the practical necessity of undertaking a programme of works and of ensuring that works are not delayed by tribunal proceedings further than is absolutely necessary.