[2025] UKUT 246 (LC)

At the hearing before the FTT on 25 November the appellants were represented by leading counsel, Mr Bates KC. Its grounds of appeal against the case management decision were settled by Mr Morshead KC. They are strikingly different from the approach taken by Mr Morshead’s predecessor, and, as the FTT noted when it gave permission to appeal, three of the grounds were not even argued before it. It is a little surprising in those circumstances that the FTT was prepared to grant permission to appeal on those grounds, but it did so. Because the challenge is to the FTT’s directions for the final hearing which has been listed and for which all parties now need to prepare, this Tribunal has made time available to hear the appeal as early as possible.

In the event, the FTT granted permission on four grounds, although Mr Morshead KC has focused his submissions mainly on the first of them. That ground, as it appears in the grounds of appeal is that the FTT's order is said to “subvert” the scheme of the 2022 Act. That proposition very closely mirrors submissions made Mr Morshead KC in February 2024 in this Tribunal when the appellants resisted the manager’s appeal from the FTT's decision that he could not be an accountable person.

It said that the cladding works and responsibility for them belong exclusively to the accountable person and not to the manager and that the FTT has no jurisdiction to make orders under any guise, whether as a by-product of case management decisions or at all, which have the effect of impeding the accountable person's performance of its obligations under Part 4 of the Act or delegating those obligations to any other person. If it has jurisdiction to do so, it is irrational for it to have exercised it in the way that it did.

Ground 3 suggests that the FTT failed to take account of relevant factors when it made its decision. Those factors principally comprise the analysis of the relationship between the 1987 Act and the 2022 Act which is the subject of ground 1. They also include criticisms of the conduct of the other parties in, as the appellants now suggest, delaying final determination of the Order applications.

Ground 4 (the third ground of appeal for which permission was given) focuses on the suggested irrelevance of section 24(9A) of the 1987 Act and its prohibition on varying a management order on the application of a landlord where there is a risk of recurrence of the circumstances which led to the order being made. That ground is also predicated on the correctness of the analysis put forward in ground 1.

The final ground for which permission was given (ground 5) suggests that the FTT had given inadequate consideration to the risk of prosecution.