Sam Phillips, member of Five Paper’s property division was successful in an appeal to the Upper Tribunal (Lands Chamber) on behalf of a landlord who sought to challenge the FTT’s characterisation of an agreement as a statutory, rather than contractual periodic tenancy.
The UT agreed to take the unusual step of setting aside the FTT’s reasons, while not interfering with the decision (the striking out of the tenant’s reference for a rent determination under s.13 of the Housing Act 1988) on the basis that the FTT’s reasons were wrong and could have presented a bar to the landlord using it’s contractual power to vary the rent. The UT accepted that the correct interpretation of the agreement would prevent the use of s.13 in any event so agreed that the decision should stand, but for new reasons.
At first instance, the FTT had considered that the first ‘period’ of a contractual periodic tenancy was the ‘fixed period’ of the tenancy and that a statutory periodic tenancy arose thereafter, meaning that the contractual rent review mechanism no longer applied.
The UT held that the FTT (1) was wrong in its interpretation of the agreement (the UT considered the statement in Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 pleaded by the appellant in support of its appeal) and (2) had misdirected itself when it refused permission to appeal on the incorrect basis that an appeal could only lie against a decision itself. The UT held that the reasons given by the FTT gave rise to a point of law, which engaged Section 11 of the Tribunals Courts and Enquiries Act 2007.
This binding authority will hopefully go some way to prevent similar errors of characterisation in the FTT and demonstrates that the UT can, when appropriate, interfere with the reasons behind a decision, independent of the decision itself.
Sam was instructed by Samantha Grix of Devonshires.
A copy of the UT’s determination (neutral citation [2024] UKUT 53 (LC)) is available here.