[2025] UKUT 301 (LC)

By paragraph 5 of Schedule 10 to the Rent Act 1977, each rent assessment committee shall consist of a chairman and one or two other members. In this case the Committee comprised Tribunal Judge Philips, and a surveyor member, Ms C Jones. Ms Willett told me that Ms Jones inspected the property on the morning of 13 February 2025, and both members of the Committee heard the application that afternoon. Mr Rees appeared in person, Ms Atyeo was represented by Ms I Knight of counsel.

In its decision issued the same day, the Committee noted, among other defects, that there were areas of black mould growth to the internal walls, ceilings and window frames in various locations and to differing degrees, most notably to the first-floor front bedroom, where recent eradication treatment has been applied but the area of growth is still visible and was prolific.

It also noted that since the Tribunal proceedings commenced Neath Port Talbot County Borough Council – Environmental Health Services had served an Improvement Notice dated 15th January 2025 under the provisions of the Housing Act 2004.

The Committee found, on the balance of probabilities, that there was no carbon monoxide alarm present, which it considered would be a breach of the requirements under the Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022 under which a landlord is obliged to ensure a dwelling is both in repair and fit for human habitation.

It accepted evidence contained in a damp report provided by Mrs Atyeo and was satisfied that, at least in part, the damp and mould is caused by a lack of ventilation of the upstairs bedrooms by Mr Rees. Further, it was not persuaded by Mr Rees’s evidence that the upstairs bedrooms were adequately heated throughout the year to avoid damp when his daughters were not in residence at the property.

Having considered the condition of the property, the Committee reviewed the range of indicative comparable rental evidence, finding none of the material provided by the parties compelling, and noting that most were ‘asking rents’, although the rental market was strong, and appropriately priced premises can let swiftly.

The Committee concluded:

“55.

The Property has many merits in terms of family accommodation and plot but,

it does also have a number of repair/maintenance and compliance issues to

remedy, that would be taken into account within a tenant’s bid.

56.

Whilst the Tribunal has determined that there is not a carbon monoxide alarm

fitted at the Property it accepts Ms Knight’s submission that the question of

whether the determined rent is payable, or not, is a matter for the County

Court to determine.

57.

Taking into account the Property’s accommodation, condition, and amenity

and also using our own experience alongside the evidence presented, we

consider that a rent of £925 pcm is appropriate.”

Ms Willett summarised the grounds of appeal relied on by Mr Rees. She said that the property was not fit for habitation owing to mould, and that no carbon monoxide was fitted until May this year. The Committee made procedural errors, in that the parties were told that no new evidence could be presented at the hearing, yet Mrs Atyeo was permitted to do so, and the appellant was not allowed to respond; and that despite Mr Rees telling the Tribunal in advance that he wished his sister to speak for him, this was not allowed at the hearing, and owing to his neurological condition, Mr Rees found it very difficult to properly present his case.

Ms Willett also relied on the fact that that the valuer member of the panel (but not the chairman) inspected the property on the morning of the hearing. The member is said to have agreed during the inspection that there were significant defects with the property, and that the majority of ‘comparable’ properties were of higher value than the appeal property. The valuer member, Ms Willett said, told them that morning that in her view the rental value of the property was in the order of £750 pcm, yet the Committee then determined a rent of £925 pcm.

Mr Atyeo accepted that at the date of the hearing there was no carbon monoxide detector present, as a previous one had been removed. It was common ground that it had now been replaced. Mr Atyeo said that the mould at the property was owing to Mr Rees’s inadequate heating and ventilation. He had looked at property websites, and could not find any three-bedroomed property to let at a rent as low as £925 pcm; in his view the rent determined by the Committee was too low.

I should add, lest the parties think I did not have regard to them, that both sides raised various issues which were not relevant to this appeal, including previous possession proceedings, rent arrears, etc. I do not repeat them here because they have no bearing on the rent to be determined for the property, which is unaffected by the personal circumstances of the parties.

I have not been provided with a transcript of the proceedings before the Committee, and I assume that the proceedings were not recorded. Nor have I seen a record of the hearing agreed by the Committee. It is therefore difficult for me to form a view about the suggested procedural errors referred to by Ms Willett. The Committee is entitled to decide for itself how the hearing should be managed, provided it is fair, and it would be a rare case in which a point of case management concerning the admission of late evidence was sufficiently important to be the source of an error of law.

Nor am I in a position to disagree with the Committee’s assessment of rent. I am not familiar with the area or the prevailing levels of rent for different types of property. More importantly, the level of rent at which property would reasonably be expected to let is a question of fact, not an issue of law. There is no right of appeal against a finding of fact, unless there was some serious flaw in the decision-making process.

There is more substance in Ms Willett’s complaint about the inspection on the morning of the hearing. I give no weight to views said to have been expressed by the valuer member for the reason I have already given, namely, that there is no record of what was said, if anything. An inspection is not an appropriate occasion for members of the Committee to express views about the issues in the proceedings, and it is important that they avoid giving any impression that they have made up their minds or even formed a provisional view before the hearing begins and the parties have the opportunity to address them.

But it does not seem to be in doubt (Mr Atyeo did not dispute it) that the inspection was undertaken by only one of the two members of the Committee. The valuer member attended but the chairman did not.

Regulation 7(1) of the 1971 Regulations provides as follows:

“The committee may of their own motion, and shall at the request of one of the parties (subject in either case to any necessary consent being obtained) inspect the dwelling-house or dwelling which is the subject of the reference.”

The inspection by the Committee is an important part of the proceedings. It provides the best opportunity to observe the condition of the dwelling and to form a view of the contribution which any improvements made by the contract-holder may add to its value (which must be ignored) or how far the value of the dwelling may have been reduced by any suggested breaches of obligation by the contract-holder. It also provides the basis for any comparison between the value of the dwelling and the rents charged for other dwellings which the parties may rely on.

When regulation 7 refers to the committee inspecting the dwelling, it means the whole of the committee, comprising the chairman and the one or two members referred to in paragraph 5 of Schedule 10 to the 1977 Act as constituting the committee. One member of the committee acting alone is not the committee.

It is important that the committee as a whole makes the determination of the new rent. Committee decision making requires the participation and concurrence of the whole committee (leaving aside the possibility of a majority decision by a three person committee). For that purpose each member of the committee must have equal access to the whole of the evidence.

In my judgment the procedure adopted by the Committee of only one of the two members being present at the inspection was a serious procedural defect. It was not possible in those circumstances for the Committee to come to a view on all of the matters which they needed to consider. The parties were entitled to, but did not have, the decision of the whole committee on all aspects of the dispute.

For these reasons I set aside the decision and remit the application for a new rent to a differently constituted committee for redetermination.