Practice and procedure – First-tier Tribunal – Rule 34 of Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 – Appellant landlord failing to attend hearing of respondents’ application to FTT for rent repayment order – Appellant appealing against order made in absence – Whether correct for hearing to continue in party’s absence – Appeal dismissed
The appellant owned a house at 52 Wanlip Road, London, E13. In 2021, he let rooms in the house to the respondents. In 2023, the appellant was allowed into the property on the pretext of carrying out some electrical work. While the respondents were out, the locks were changed and their belongings removed. The respondents gained re-entry but the appellant gave them notice to vacate the property.
The respondents issued proceedings in the county court claiming damages and an injunction to compel the return of their belongings and protect them from further harassment. They also commenced separate proceedings for the return of their deposits. The appellant agreed to pay compensation of £7,644 for illegal eviction plus their costs of the proceedings.
The respondents subsequently applied to the First-tier Tribunal for a rent repayment order (RRO) but the appellant failed to appear at the hearing. The FTT found the appellant had unlawfully deprived the respondents of their occupation of the property by locking them out, contrary to section 1(2) of the Protection from Eviction Act 1977. It was also satisfied that the appellant deliberately interfered with the respondents’ peace and comfort with the intent that they should give up their occupation of the property, contrary to section 1(3) and (3A) of the 1977 Act.
The FTT concluded that those criminal offences gave it power to make an RRO. In his absence, the appellant was ordered to repay £12,600. The appellant appealed.
Held: The appeal was dismissed.
(1) The default rule was that the FTT had to hold a hearing before making a decision which disposed of proceedings (rule 31(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013) and give each party reasonable notice of the time and place of the hearing (rule 32(1)). Under rule 34, the FTT had a discretion to proceed with a hearing in the absence of one of the parties if: (i) it was satisfied that the party who had failed to attend had been notified of the hearing, or reasonable steps had been taken to notify them; and (ii) it considered that it was in the interests of justice to proceed with the hearing in the absence of one of the parties.
A decision to proceed without considering the interests of justice would not be a valid exercise of the discretion. That reflected the FTT’s overriding objective of dealing with cases fairly and justly (rule 3(1)).
(2) In the present case, when the FTT decided to proceed with the hearing of the rent repayment application in the absence of the appellant or his representative, it failed to consider whether it was in the interests of justice to do so; alternatively, if it did consider whether that condition was satisfied, it failed to give any adequate explanation for their decision either in their original reasons or when prompted by the UT’s specific request under rule 5(3)(n) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010. It followed that the decision to proceed was not a valid exercise of the FTT’s discretion.
There was no requirement for FTT decisions to record at length or in detail the reasons why it was in the interests of justice to proceed in the absence of a party. What was important was that both limbs of rule 34 were taken into account when a decision to proceed was made. While it would be better for that to be stated expressly when the decision was recorded, an omission could be cured by providing specific reasons, if the point was raised in an application to set aside the decision, or for permission to appeal. The difficulty here was that the additional reasons supplied by the FTT asserted that the panel’s reasons had already been given in full.
(3) This appeal was brought under section 11 of the Tribunals, Courts and Enforcement Act 2007, which conferred a right of appeal on any point of law. A serious procedural irregularity might amount to an error of law but it was not every procedural irregularity, or error of law, which required that the decision of a lower tribunal be set aside (section 12(2) of the 2007 Act).
It was clear the UT had to consider the consequences of the error it had found before deciding whether or not to set aside the FTT’s decision. The court had to be satisfied not only of the seriousness of the irregularity, but also that it had caused the decision of the lower court to be unjust.
It was also relevant that rule 51 of the 2013 Rules gave the FTT power to set aside a decision made in the absence of a party or their representative, but only if the FTT considered that it was in the interests of justice to do so.
(4) In view of the admission recorded in the county court order there was no possibility that the FTT would have reached a different conclusion about the commission of the two offences, and therefore about its jurisdiction to make an RRO, if the appellant had attended and given evidence. Given the seriousness of the offences and the fact that the respondents moved out as a result of the appellant’s conduct, there was no possibility that the FTT would have decided that it was not appropriate to make an RRO. The only possible issue could have been the quantum.
The facts about the illegal eviction recorded in the FTT’s decision, and the agreed payment of compensation and costs which ended the county court proceedings, demonstrated that the appellant was prepared to trample over the rights of others if it was to his advantage. If he had attended the hearing, there was no guarantee that he would have secured a better outcome; and the FTT would have been entitled to order repayment of the full amount of the rent even having regard to the compensation already paid by the appellant.
Accordingly, although the FTT’s approach was flawed by reason of a serious procedural irregularity, the interests of justice did not require that the FTT’s decision be set aside and redetermined. The possibility that a lesser penalty might have been imposed was foregone by the appellant when he failed to attend the hearing of which he had been given proper notice.
The appeal was determined on written representations.
Eileen O’Grady, barrister
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