When dealing with applications before the First Tier Tribunal, particularly where there are multiple respondents, it’s common practice for the Tribunal to require the applicant to serve proceedings and other documentation on the respondents. I’ve been involved in proceedings where the Tribunal have directed service of documents on literally hundreds of lessees.

From time to time, it’s also been the practice of the Tribunal to require the applicant to distribute copies of the Tribunal’s decisions to those affected by them.

But is that delegation permissible under the Tribunal Procedure (First Tier Tribunal) (Property Chamber) Rules 2013?

This was the issue before the Upper Tribunal (Lands Chamber) in Hyslop v 38/41 CHG Residents Company Limited [2017] UKUT 398 (LC).

 

Proceedings before the First Tier Tribunal

The landlord, 38/41 CHG Residents Company Limited, sought a determination in relation to the reasonableness of service charges and administration charges. It was intended that the lessees of all 36 flats should be respondents to the application so that the landlord would have the comfort of a decision binding all interested parties before it embarked on the proposed project of major works.

As is common practice, when the application was lodged with the Tribunal, a direction was made which required the landlord to serve a copy of the application and the Tribunal’s directions on each of the leaseholders.

The landlord confirmed in writing that it had done so.

Having received no response from any of he leaseholders, the FTT proceeded to determine the application on the papers. The FTT determined that the landlord was able to recover the sums sought, and its determination was issued to the landlord.

Along with its determination, the FTT also requested the landlord to “provide a copy to the respondents”.

The letter from the Tribunal to the landlord also included information about how to appeal its decision etc.  The landlord was not asked to send a copy of the covering letter or the note which provided guidance on appeal.

Some time later, one of the lessees sought to appeal the decision of the Tribunal on the basis that she had neither received a copy of the application nor a copy of the determination and so was unable to either participate in the proceedings or appeal the decision made by the Tribunal.

 

The First Tier Tribunal (Property Chamber) Rules 2013

Before moving on to consider the decision on appeal, it’s worth revisiting the relevant parts of the Tribunal’s Rules.

For the purposes of the Rules, an “applicant” is a person who commences Tribunal proceedings. A “respondent” is a person against whom an applicant brings proceedings, and a “party” is a person who is an applicant or respondent.

Rule 6 gives the FTT extensive case management powers, allowing it to regulate its own procedures. In particular, Rule 6(3)(d) allows the FTT to permit or require a party to provide or produce documents, information or submissions to:

  • the Tribunal;
  • a party.

Rule 29 imposes certain requirements on the FTT itself.  Essentially, when the FTT receives notice of application or a statement of case, the FTT must provide a copy of the application and any accompanying documents to the respondent(s).  However, the Rules allow the FTT to provide any document either by sending the document itself, or requiring a party to do so.

So far as decisions are concerned, the Rules require the Tribunal to provide each party with:

  • a decision notice stating the Tribunal’s decision;
  • written reasons for the decision; and
  • notification of any right of appeal against the decision and the time limits that apply.

 

Issues on appeal

There were two questions for the Upper Tribunal in this appeal:

is the FTT entitled to rely on an applicant to send the application to each of the respondents; and is the FTT entitled to rely on the applicant to send its subsequent decision to each of the respondents.  

 

Was the FTT entitled to rely on the landlord to provide notice of the proceedings to the leaseholders?

The Rules provide an express power which enables the FTT to require a party to provide documents, information or submissions to the FTT itself or to another party.  That power obviously enables the FTT to require that documents relevant to a service charge application (such as copies of notices, invoices or accounts etc) should be provided by one party to another.

The Rules specifically contemplate that the FTT may delegate responsibility for providing copies of notices of application to the respondents.

The Upper Tribunal was therefore satisfied that the FTT may properly require an applicant to provide every intended respondent with copies of the notice of application by which proceedings were commenced.  

 

Was the FTT entitled to rely on the landlord to provide the reasons for its decision to the leaseholders?

The Upper Tribunal found it more difficult to accept that it was open to the FTT to delegate to the landlord responsibility for publishing its final decision to the leaseholders.

The Tribunal considered the Rules carefully, particularly in relation to the language used. Having looked very carefully at how the obligations relating to service of decision are expressed in the Rules, the Tribunal found that the Rules do not permit the FTT to rely on one or more of the parties to deliver its decision to any other party. The FTT must discharge that obligation itself.  

 

Commentary

This decision makes very clear that the responsibility for sending the FTT’s decision sits squarely with the FTT itself, and cannot be delegated to any of the parties involved in the proceedings.

Although the case itself was concerned with whether or not the Tribunal could delegate service of its decisions to another party, the appeal itself arose because one of the leaseholders disputed that she had received copies of the documents or decision from her landlord.  It is noted in the decision that the landlord had anticipated that there would be problems with the leaseholder claiming that she had not received documents. Notwithstanding this, the landlord sent the documents by normal post rather than by alternate methods, such as recorded or special delivery.

Perhaps one of the more useful “takeaway” points from the case is the need for landlords (and their agents) to be mindful of assumed problems and adopt strategies for dealing with service where such problems are anticipated. Had the landlord done so here, then it may have avoided the appeal which then resulted in the FTT’s decision being set aside, and the proceedings being remitted to the FTT for re-determination by a differently constituted Tribunal………