Procedural Unfairness in the First-tier Tribunal

The Upper Tribunal (Lands Chamber) (‘the UT’) has recently ruled in two cases which dealt with unfair procedures adopted by the First Tier Tribunal (‘the FTT’). 

Below we summarise the cases and consider the key takeaways.

Sovereign Network Homes v Hakobyan and others [2025] UKUT 115 (LC) 

Background 

The Appellant, Sovereign Network Homes appealed to the UT against an interim decision of the FTT Tribunal dated 23 April 2024. 

In April 2024 The FTT considered an application made by the Respondents (the then Applicants), leaseholders of the Appellant in a block of flats known as Cudweed Court (‘the Application’). 

The Application was made pursuant to section s27A of the Landlord and Tenant Act 1985 and challenged the reasonableness of service charge demanded by the Appellant. 

The Appellant was not directly responsible for the provision of services and such did not incur their costs. The management company was therefore joined as a party to respond to the reasonableness challenge. 

The Application was heard before the FTT on 15 and 16 April 2024 , during that hearing, the FTT of its own volition, raised whether the payments that had been demanded from the Respondents were due as a matter of contractual liability based on a discrepancy between the headlease and their leases.

The FTT decided by interim decision to adjourn the hearing in order for directions to be given for the determination of the issue on contractual liability which it  had raised. 

The Appellant’s Case 

The Appellant submitted that the FTT erred both in raising an issue of contractual liability and in giving directions for the determination of that issue. It was the Appellant’s case  that the FTT should have limited itself to the issues pleaded within the application and further that the hearing before the FTT had been conducted in manner which created the impression of bias against the Appellant and which rendered the hearing unfair.

The Decision 

The UT recognised the question as to whether the FTT should raise a point on its own initiative calls for the exercise of the FTT’s judgment and discretion dependent on the facts and circumstances of the particular case. 

In this case, the UT decided: 

1. The process in application under Section 27A (i.e. service charge disputes) is adversarial and not inquisitive. 
2. The primary, and in most cases, the sole task of the FTT is to resolve the dispute which parties have brought before the FTT for determination, on their pleaded cases. 
3. The circumstances in which the FTT can and should intervene to raise a new point are limited. 
4. The role of the FTT is limited to raising the new point (assuming this was appropriate) and at that stage if the relevant party choses to pursue that point, The FTT should hear from the other party (or parties) as to whether they object to the new point being taken. 

Key Takeaways

1. The FTT was wrong to adopt the procedure it had in this case, because the case was not unusual so as to justify the point being taken at all. 
2. The FTT in raising this point and allowing the Appellant limited opportunity to respond, had created an impression of bias against the Appellant. 
3. The FTT had considered all the evidence on the issues pleaded and should have issued its determination on those issues. 

Campbell v Cammarano and others [2025] UKUT 122 (LC) 

Background 

The Appellant, Mr Campbell was the former landlord of the respondents, Ms Cammarano, Mr Juurlink, Ms Villaescusa and Mr Costello. The respondents are former tenants of 58 George Downing Estate, London N16 (‘the Property’) who applied to the FTT for a rent repayment order, on the basis that the Property was a house in multiple (‘HMO’) and required an HMO licence but did not have one. 

The FTT heard the case in March 2023 and on 11 April 2023 found in favour of the respondents making a rent repayment order for each of the respondents amounting to £15,916.20 in total. 

The Appellant’s Case 

The appellant sought permission to appeal on the basis that the FTT did not provide sufficient time (10 to 15 minutes) for him to make his submissions at the hearing,  whilst by contrast the respondents had several hours. 

In response to the application for permission to appeal, the FTT accepted that the appellant had insufficient time to make his submissions and opted to review its decision. The FTT conducted a further hearing on 8 May 2024 (‘the  Review Hearing’) during which it heard the appellant’s additional submissions but no further evidence. After hearing the additional submissions, the FTT confirmed the rent repayment order.

The UT allowed an appeal of the reviewed decision. 

The appellant submitted that the FTT’s decision was biased and suggested that it had raised matters about which the respondents had not complained of, and further the process of the Review Hearing remained unfair. 

The Decision 

The UT noted that the FTT had not exercised the review power correctly. Where the FTT accepted that the original hearing was unfair, it was difficult to see how a review of that decision by way of the Review Hearing on the basis of submissions only could have put this right. 

In this case, the UT decided:

1. If the appellant was not able to cross-examine at the hearing in March 2023; a review hearing where the respondents were not present could not remedy this. 
2. Unless the outcome of the reviewed decision was entirely different from the April 2023 decision, the FTT was open to criticism that its mind was already made up and as such the Review Hearing could not have been fair. 
3. The Review Hearing should not have been conducted, the FTT failed to state the matter that was under review. 
4. Further, it would not have been possible for the Review Hearing to remedy the unfairness of the original hearing. 
5. The FTT should have set aside its April 2023 decision and conducted a fresh hearing. 

Key Takeaways 

1. The FTT created an impression of unfairness towards the appellant in failing to allow the appellant sufficient time for submissions at the original hearing.
2. The FTT accepted that it had erred in its decision at the original hearing and should have conducted a fresh hearing, rather than conducting the Review Hearing. The procedure adopted for the Review Hearing could not have put right the unfairness of the original hearing.

For further information, please contact Shadale Miller-Guy or Zoe McLean-Wells.