Key Facts
- •Appeal against the First-tier Tribunal (Property Chamber)'s decision to strike out leaseholders' (Connell and Lynn) application for service charge determination under section 27A, Landlord and Tenant Act 1985.
- •The FTT struck out the application based on rule 9(3)(d) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, deeming it frivolous and vexatious.
- •The FTT's decision followed a previous service charge dispute (2018 application) involving another leaseholder, Mr. Fernie, where similar service charge items were challenged.
- •Respondents conceded that the FTT erred in striking out the appellants' application.
- •The Upper Tribunal (Lands Chamber) determined the appeal on written representations.
Legal Principles
Every leaseholder has the right to a determination by the FTT of the service charges they are liable to pay, as conferred by section 27A, Landlord and Tenant Act 1985.
Landlord and Tenant Act 1985, section 27A(1) and (3)
This right cannot be removed by a decision about service charges payable by someone else, even if the expenditure is the same. It's protected by the common law right to a fair hearing and Article 6(1) ECHR.
Common law, Article 6(1) ECHR
FTT rule 9(3)(c) allows striking out proceedings if they are between the same parties and arise from substantially the same facts as a previously decided case. This did not apply here as appellants weren't parties to the earlier case.
Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, rule 9(3)(c)
FTT rule 9(3)(d) allows striking out proceedings if they are frivolous or vexatious or an abuse of process. The Upper Tribunal found the FTT misapplied this rule in this instance.
Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, rule 9(3)(d)
A respondent's concession in an appeal is insufficient to overturn a lower tribunal's decision; a judicial determination is required.
Upper Tribunal reasoning
Outcomes
Appeal allowed.
The FTT wrongly struck out the appellants' application. Leaseholders have an individual right to FTT determination of their service charges, irrespective of previous decisions involving other leaseholders, even if concerning similar expenditure. The FTT's reliance on the alleged improper motives of a non-party and proportionality concerns was flawed.
FTT decision set aside and remitted to a differently constituted panel.
To ensure fairness, given the previous panel's decision to strike out the application.