Making an FTT Appeal

Ellodie Gibbons explains the appeals process and offers flat owners advice on what to do if you are unhappy with an FTT decision.

So, you have received a decision from the First-tier Tribunal (FTT), but you are not happy with it - what can you do? First, you need to work out why you think the decision is wrong. Have the FTT simply made a clerical mistake - have they added up the figures wrongly? Have the FTT made a decision based on a procedural irregularity, for example, have the FTT dismissed your application because you failed to turn up to a hearing? Or do you disagree with the decision the FTT has come to?

If the FTT have made a clerical mistake, simply write to the FTT and ask them to amend it under rule 50 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169 (“the Rules”).

If the decision is as a result of a procedural irregularity, check that the irregularity falls within rule 51(2). If it does, make an application to have the decision set aside under rule 50(1). There is no particular form on which such an application need be made so simply write to the FTT identifying the relevant decision and the procedural irregularity. Explain why it is in the interests of justice that the decision be set aside. For example, if you failed to attend a hearing because you were not notified of the hearing date, then explain this. Your application must be made within 28 days after the date on which the FTT sent notice of the decision or notice of the reasons for the decision, whichever is the later.

If you disagree with the decision the FTT has arrived at, then you will need to consider appealing the decision. However, simply disagreeing is not a good enough reason for bringing an appeal. You will need to show that in reaching its decision the FTT erred in some way or that the implications of the decision extend beyond your case. If you have not previously taken legal advice, then talk to a legal adviser before embarking on an appeal. Otherwise, you risk throwing good money, time and effort after bad.

Any appeal will be heard by the Upper Tribunal (Lands Chamber). This tribunal is based in London, currently in Bedford Square, where it usually hears cases. However, it may sit anywhere in England and Wales, subject to the availability of suitable accommodation. The rules in relation to costs incurred before the Upper Tribunal are the same as those that apply to the FTT. In other words, you can recover your costs from the other side if you can show that they have acted unreasonably in bringing, defending or conducting proceedings. While the limited costs jurisdiction may make the idea of an appeal attractive, as with the FTT, leaseholders must exercise caution. Unless a landlord acts unreasonably, a leaseholder is unlikely to recover the cost of employing professionals such as solicitors, barristers and expert witnesses to assist with any appeal, yet without their help, the lessee is likely to be at a disadvantage (even more so than before the advent of the FTT).

Landlords, on the other hand, can often recover the cost of employing professionals under the terms of the lease, either directly or via the service charge.

Once you have decided to go ahead, you will need to apply for permission to appeal. In the first instance this application needs to be made to the FTT and can be most easily done by completing the form entitled Application to appeal a decision to the Upper Tribunal (Lands Chamber) at http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=3074

The completed form needs to be sent to the FTT so that it arrives within 28 days after the latest of the dates that it has sent -

(a) written reasons for its decision;

(b) notification of amended reasons for, or correction of, its decision following a review; or

(c) notification that an application for its decision to be set aside has been unsuccessful.

If you know that you are unlikely to meet the 28 day deadline in advance, then write to the FTT asking for an extension of time under rule 6(3)(a). If you fail to meet the deadline and have not obtained an extension of time from the FTT, then your application must include a request for an extension of time and explain why the application was not received in time.

In order to identify the reasons why you are seeking permission to appeal, the application form asks you to tick one or more of the following;

(a) The decision shows that the FTT wrongly interpreted or wrongly applied the relevant law;

(b) The decision shows that the FTT wrongly applied or misinterpreted or disregarded a relevant principle of valuation or other professional practice;

(c) The FTT took account of irrelevant considerations, or failed to take account of relevant considerations or evidence, or there was a substantial procedural defect;

(d) The point or points at issue is or are of potentially wide implication; and/or

(e) Reasons other than (a) to (d) above.

However, permission to appeal is unlikely to be granted if your only reason for appealing falls within (e). For each of the boxes you tick, you must go on to explain why you rely on that particular ground.

On receiving an application for permission to appeal, the FTT must first consider whether to review their decision and may only do so if they are satisfied that a ground of appeal is likely to be successful. If the FTT decides not to review their decision, or reviews the decision and decides to take no action, then the FTT must consider whether to give permission to appeal. Consequently, there are three main outcomes of an application for permission to appeal:

1) the FTT reviews and amends their decision;

2) the FTT refuses permission to appeal; or

3) the FTT grants permission to appeal.

If the FTT reviews and amends their decision and you are happy with the amended decision, then you need do nothing further.

If the FTT refuse your application for permission to appeal, then you can renew your application to the Upper Tribunal by completing form T602. This form must be received by the Upper Tribunal within 14 days of the FTT having sent their refusal. If the FTT have given permission to appeal, then you will need to complete Appeal Form T601 and send it to the Upper Tribunal so that it is received within one month of the FTT having sent their grant of permission. Both forms and guidance on the procedure in the Upper Tribunal can be found at http://www.justice.gov.uk/tribunals/lands.

Both forms will ask you to state which of four procedures you think your appeal should be assigned to and what type of appeal you are seeking: 1) an appeal by way of review; 2) an appeal by way of review, which if successful will involve a consequential re-hearing; or 3) an appeal by way of re-hearing. Guidance on the different procedures and types of appeal can be found on the Upper Tribunal's website and the type of procedure and appeal will determine what happens next. However, the Tribunal will send out directions, so be sure to read and follow those.

Ellodie Gibbons is a barrister with Tanfield Chambers