The First-tier Tribunal should not ordinarily make a determination on the papers in circumstances where there are contested issues of fact between the parties. An oral hearing should be held so that the veracity or otherwise of each party’s evidence can be tested.
In Onyiliagha v You Move Lets Ltd [2023] UKUT 199 (LC), the appellant occupied a property situated in Enfield, London N9, under an assured tenancy. The respondent was her landlord.
The landlord had served on the tenant a notice pursuant to section 13 of the Housing Act 1998 proposing a new rent of £2,145 per month. The tenant’s previous rent was £1,894.79 per month. The increase in rent was not agreed by the tenant. In January 2023 the landlord applied to the FTT for a determination of the market rent for the property.
The FTT made its determination on the papers. In so doing it stated that it had relied on its own general knowledge of rent levels in the area and the evidence supplied by the parties. The FTT determined that the rent proposed by the landlord was the market rent. The tenant sought permission to appeal from the FTT, but permission was refused. When refusing permission to appeal, the FTT recorded in its decision that there had been differences of fact between the tenant and the landlord. The differences in the evidence were in relation to the condition of the property and the facilities within the same. The FTT noted that these differences had been taken into account and it had made the best it could “of the factual evidence, agreed, in conflict or disputed.”
The tenant appealed to the Upper Tribunal (Lands Chamber). In her application, the tenant had supplied information and photographs about the current facilities in the property and the condition of the same, including as at the commencement of her tenancy. As the landlord had not made any assertions to the contrary in its written representation to the tenant’s application for permission to appeal, the UT accepted that the same evidence submitted by the tenant had been before the FTT when it had made its decision.
The UT allowed the appeal. It observed that in the absence of an oral hearing, it was difficult to discern how the FTT could have decided which party’s evidence was true. Neither party’s evidence had been tested under cross-examination. Additionally, the FTT did not provide any reasoning as to how it reached its decision on which party’s disputed evidence it preferred. The decision was set aside and the matter remitted to the FTT to assess the evidence at a rehearing.
Elizabeth Dwomoh is a barrister at Lamb Chambers
