Practice and procedure – Leasehold Valuation Tribunals (Fees) England Regulations 2003 – Fee reimbursement order – Leasehold valuation tribunal ordering appellant lessee to reimburse respondent landlord’s fees incurred on application for determination of service charge liability – Whether tribunal first required to satisfy itself as to whether appellant in receipt of benefits of a kind precluding making of such order under regulation 9(2) of 2003 Regulations – Whether obliged to enquire arising where appellant not informing tribunal of any such benefit – Appeal dismissed
The appellant was the lessee of a flat in a complex owned by the respondent freeholder. The respondent applied to the leasehold valuation tribunal (LVT), under section 27A of the Landlord and Tenant Act 1985, for a determination of the appellant’s liability for unpaid service charges for two successive years. The LVT decided that the charges were for the most part reasonable and payable and further ordered the appellant to reimburse the respondent for the fees of £350 that it had paid to the LVT in respect of the application.
The appellant applied for permission to appeal against the reimbursement order. She contended that the LVT, before making the order, had been obliged to satisfy itself whether she was in receipt of any of the benefits specified in regulation 8 of the Leasehold Valuation Tribunals (Fees) England Regulations 2003, since receipt of such a benefit would, by virtue regulation 9(2), preclude the making of a fee reimbursement order against her. She claimed that she was in receipt of a pension credit which qualified for that purpose.
The Upper Tribunal considered that there might have been a procedural irregularity if regulation 9 of the 2003 Regulations had not been raised at the hearing. At its direction, the appellant applied to the first-tier tribunal (FTT), under r 51(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, asking it to set side and remake the decision on reimbursement of fees. After seeking additional information from the appellant, the FTT found that there had been no procedural irregularity and refused the request. It indicated that the issue of fees had been raised at the hearing and that the appellant had made submissions on it, but that she had not informed the tribunal of any pension credit. It held that for regulation 9(2) to apply, the tribunal had to have knowledge that a party was in receipt of a benefit at the time when it was making its decision; accordingly, where the appellant did not inform the tribunal about her pension credit, and it had no reason to believe that she was in receipt of a relevant benefit, then it was not obliged to inquire into that matter but was entitled to assume that there was no bar to the making of a fee reimbursement order. The appellant appealed.
Held: The appeal was dismissed.
Regulation 9(2) of the 2003 Regulations envisaged that the power to make a fee reimbursement order was dependent on the view that the tribunal took at the time when a decision whether or not to make the order was made. The tribunal’s power to order reimbursement of a fee depended on whether it was “satisfied” that the party was in receipt of a qualifying benefit “at the time when the tribunal is considering” whether or not to make the order. If, at that time, the tribunal expressly considered whether a party was in receipt of a qualifying benefit and was entitled to be satisfied on the evidence that no qualifying benefit was received, then it had a power to make a reimbursement order, even if it later turned out that the party was in fact in receipt of a qualifying benefit.
A requirement for a court or tribunal to be “satisfied” as to a matter of fact was a commonly employed legislative tool which imposed an obligation on the party seeking to satisfy the court as to the relevant matter to provide the proof or evidence of that matter: Blyth v Blyth [1966] AC 643 applied. The wording of regulation 9(2) of the 2003 Regulations did not require the tribunal to make enquiry as to whether a party was in receipt of a qualifying benefit unless that issue was raised by one of the parties or arose in some other way from the material before the tribunal. While it would be wrong for the tribunal to make an award of costs or order reimbursement of fees without giving the paying party an opportunity to make representations about whether an order should be made, it was then for the paying party to raise any objection that she sought to make to such an order, whether relating to the merits of the case, that party’s means or receipt of a qualifying benefit such as would engage regulation 9(2).
The FTT had referred in its decision to cogent and contemporaneous evidence of a specific application by the respondent for reimbursement of fees and express opposition by the appellant to such an order. The onus was on the appellant to prove that she had been given no opportunity to make submissions on the issue of a fee reimbursement order and she had failed to discharge that burden. Accordingly, there were no grounds for arguing that the FTT had erred in concluding that there had been no procedural irregularity for the purposes of r 51 of the 2013 Rules such as to justify setting aside the earlier decision to make the fee reimbursement order.
The appeal was determined on the written representations of the parties.
Sally Dobson, barrister
