UT/2023/000063 - [2024] UKUT 00307 (TCC)

Mr Ripley made two submissions on this issue to the effect that the Upper Tribunal’s jurisdiction in this appeal was limited.

The first argument, that the meaning of “suitable for use as a dwelling” is a pure question of fact, was a direct response to Mr Firth’s argument that those words bear their “ordinary meaning”. Mr Ripley says that if that is right, then what that ordinary meaning is was a question of fact for the FTT, citing Nugee LJ in Devon Waste Management Ltd v HMRC [2021] EWCA Civ 584 at [85]. We consider that in this appeal the meaning of “suitable for use as a dwelling” in section 116 is a question of law. The FTT did not reach its decision on the meaning of those words on the basis that they simply bear their “ordinary meaning”, and, as will be seen in due course, nor do we in this appeal. The issue in this appeal is whether in interpreting that phrase as it did, the FTT erred in law.

Mr Ripley’s second argument was that because a decision on suitability for use is an evaluative conclusion, the question for the Upper Tribunal is (broadly) whether the FTT reached a conclusion which was reasonably available to it. We agree that is the position in relation to a challenge to an evaluative conclusion or multi-factorial assessment, and suitability for use as a dwelling is indeed a multi-factorial assessment. However, in this appeal the nature of the Appellants’ primary challenge is that the FTT misdirected itself in law, namely as to the meaning of “suitability for use as a dwelling” in the context or repairs and remedial work. Essentially, that is an argument that the FTT made what was described by Lord Briggs JSC in Lifestyle Equities CV v Amazon UK ServicesLtd [2024] UKSC 8 (at [49]) as “a significant error of principle” in reaching an evaluative conclusion. That is the issue which we must determine.