2012 saw what appeared to be an ever increasing number of cases in which the appeal courts slapped the wrists of Leasehold Valuation Tribunals (LVTs) for over-stepping the mark in dealing with cases before them. One such case was Birmingham City Council v Keddie and Hill (2012) UKUT 323 (LC), notable for the scathing attack made on the LVT by HHJ Gerald, who dealt with the appeal.
The facts were as follows:
Birmingham City Council had undertaken window replacement and balcony works to a flat as part of a programme of major works to the block. Subsequently, the flat was bought by Mr Keddie and Mr Hill from whom Birmingham sought to recover £5,909.57 as the costs of the works via the service charge. Mr Keddie and Mr Hill applied to the LVT for a determination that the amount claimed was not reasonable under the Landlord and Tenant Act 1985 ss27A and 19(1). However, the LVT went further and found that Birmingham had not acted reasonably in concluding that the window replacement works should be carried out in the first place which was not in issue between the parties. Birmingham appealed on the basis that the LVT had breached the rules of natural justice by reaching a decision on grounds not raised in the application and without giving it an opportunity to make submissions, and that in any event the decision was perverse, as there was no evidence before the LVT about the condition of the old windows which were replaced.
Allowing Birmingham’s appeal, HHJ Gerald lamented:
"It is regrettable that it appears to be a developing practice within some Leasehold Valuation Tribunals to take it upon itself to identify issues which are of no concern to the parties and then reach a decision on issues they have not been asked to which then results in an appeal and all the waste of time and money and attendant general aggravation.
It is not the function of the LVT to resolve issues which it has not been asked to resolve, in respect of which it will have no jurisdiction. Neither is it its function to embark upon its own inquisitorial process and identify issues for resolution which neither party has asked it to resolve… To do so would be inimical to the party-and-party nature of applications to the LVT and would greatly increase the costs (frequently recoverable from the tenant through the service charge) and difficulties attendant to service charge disputes which by their nature are frequently fractious, involving relatively small sums within a complex matrix of divers items of expenditure.
In those rare cases where an LVT does not feel compelled of its own volition to raise an issue not raised by the application or the parties, it must as a matter of natural justice first give both parties an opportunity of making submissions and if appropriate adducing further evidence in respect of the new issue before reaching its decision. Failure to do so is not only unfair, but may give the unfortunate impression that the LVT has descended into the fray and adopted a partisan position which may well serve to undermine the confidence of the parties in the impartiality of the LVT."
A slap on the wrists indeed. And not before time. Let’s see what difference 2013 makes.