A PRACTICAL APPROACH TO TRIBUNAL HEARINGS. Professor Helen Carr Judge with FTT Property Chamber Housing Seminar Leeds 2 nd November 2016

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1 A PRACTICAL APPROACH TO TRIBUNAL HEARINGS Professor Helen Carr Judge with FTT Property Chamber Housing Seminar Leeds 2 nd November

2 Outline What to expect Some common obstacles to success The procedural rules Case Management Conferences and hearings Appeals The Tribunal does not necessarily get it right. 2

3 What is the First Tier Tribunal (Property Chamber)? Statutory tribunal Can only do what statute gives it power to do Procedural rules Housing Act 2004 is only one of a number of property related jurisdictions Not supposed to be designed for the legally represented and is relatively informal But there are expectations of behaviour And remember standard of proof on the balance of probabilities 3

4 What are you there for? To present the local authority case To give evidence To ask the appellant questions To persuade the Tribunal that your decision is correct 4

5 What is the Tribunal there for? To facilitate proper decision making To fulfil a statutory purpose Not a review of the decision making process 5

6 What decisions? Presence of significant hazards Category of hazards Decisions about enforcement and the appropriate course of action 6

7 Why might landlords feel aggrieved by local authority action? Enforcement can appear high handed The costs of works Landlords understand themselves as providing affordable housing at minimum profit which can be put at risk by expensive works Contradictory messages from different local authority departments Housing benefit, homelessness, building regulations Behaviour of tenants not taken into account 7

8 Coming to the FTT Helping the Tribunal make its decision Appeals dealt with by way of re-hearing; there is an inspection and the Tribunal includes a building professional Focus on individual rights rather than improving housing conditions of worst housed Procedural points are therefore important Close attention paid to the words of the statute You will probably have been dealing with this case for some time The tribunal has to catch up Consider preparing a clear chronology 8

9 Be prepared! Take a good hard look at the case from the perspective of an outsider before you go to court De-personalise Is it proportionate and necessary to make the order? Take control of the case You are the experts! But. You need to demonstrate expertise Be prepared to Explain your actions in terms of the statute and the enforcement guidance And in terms of your council s policy Make your explanation clear and do not assume familiarity with the facts 9

10 Make sure you Revisit close to the hearing Recalculate the hazard scores Demonstrate a re-consideration of the new situation in relation to the hazard Demonstrate bespoke evaluation of the current situation in relation to the proposed course of action 10

11 Remember general power of Tribunal S. 230(2) HA 2004 the Tribunal s general power is a power by order to give such directions as the tribunal considers necessary or desirable for securing the just, expeditious and economical disposal of the proceedings or any issue raised in or in connection with them. This does not rely on applications from parties Takes into account the matter in dispute relevant circumstances and relevant statutes. 11

12 If you are prepared there is no reason you will not succeed. With the exception of the first floor flat living room window (which the Council requested be removed from the Notice and to which request the tribunal consent) the tribunal find that the hazards set out in the schedules to the Notices exist. In the absence of any evidence to the contrary the tribunal accept that the category attributed to each hazard is that set out in paragraph 2 of each of the notices. The tribunal was satisfied that, given the nature and category of the hazards identified in each notice, the Council was entitled to serve Improvement Notices. The Act requires the Council to take the action they consider most appropriate, where there is more than one course of action open to them, and the Council had decided that the appropriate action was to serve Improvement Notices rather than Hazard Awareness Notices. The Applicant had provided no evidence to substantiate her contention that suspended Hazard Awareness Notices would have been more appropriate. The tribunal accept that the first floor tenants do not want works to be carried out to their flat. However the tribunal consider that the danger to other occupiers of the property of a fire breaking out in this flat and the defects in the electrical installation are so dangerous that the work must be carried out. 12

13 Some common obstacles Notifying the landlord of inspections Before entering any premises in exercise of the power conferred by subsection (3), the authorised person or proper officer must have given at least 24 hours' notice of his intention to do so (a)to the owner of the premises (if known), and(b)to the occupier (if any). In general tribunals have been very strict on this requirement Scoring the hazard. Originally expected that the Tribunal would not intervene in these scores but... 13

14 The Upper Tribunal Bristol City v Alford Two LLP UT 2011 By reducing to numerical terms essentially subjective judgements of risk the system may give a misleading impression of scientific precision to the assessment results. The conclusion to be drawn from this, in my view, is that RPTs, when confronted by cases in which enforcement action by councils is in issue, should not shy away from making their own assessment of the hazard and should not treat the figures given for national averages as compelling. Any such assessment must take account of those figures, but it must be reached in the light of the evidence given in relation to the facts of the particular case. Reasons must of course be given for it. The tribunal will bring its knowledge and experience to bear in evaluating the evidence and reaching its conclusion, and it will, importantly, bring common sense to bear in the judgement that it makes. 14

15 First floor & Second floor 163 Cannon Street Road, London E1 2LX LON/00BG/HPO/0014/0015 The tribunal was impressed with the careful reasoning underpinning the decision of Ms Liu to issue a prohibition order. It does however consider that it would have been prudent for her to have recalculated the HHSRS score following the fire prevention works carried out by the Applicant, particularly as her justification for the scores was in part dependent upon the need for fire prevention works. Nonetheless, drawing on its own observations of the premises and on the evidence provided to it by the Respondent and on the advice provided to the Applicant at the meeting on 22 nd September 2014, it is clear to the tribunal that those works, whilst they may have reduced the risk a little, have not reduced the hazard score to the extent that there is no longer a category 1 hazard. This is because the risk emanates mainly from the layout and the construction of the premises and the fire prevention works were not extensive. 15

16 The views of the occupiers How do you deal with statements from tenants and other occupiers who indicate they have no problem with conditions? Or don t want work done because it will affect the affordability of the tenancy? Or don t want to move out whilst work is done because they might not get back in Don t ignore them Give them due weight but provide an explanation as to why they are not determinative of your decision 16

17 LON/00AW/2015/ Lexham Gardents The First Respondent has in part relied on the opinion of Mr Jones of Design Group Nine in forming the view that it would be safe to leave the occupiers in situ. However, Mr Jones was not called as a witness and therefore neither Ms Doran nor the Tribunal was afforded an opportunity to cross-examine him. His opinion, in a letter dated 26 th March 2015, is expressed quite briefly and therefore whilst of course he is entitled to express his professional opinion it is unclear precisely what that opinion is based on. It is also unclear whether he was aware when giving his opinion that one of the occupiers is 88 years old and in poor health with limited mobility and that he has carers who visit him. Furthermore, there is no indication in the letter that he considered himself to be giving his opinion in the context of tribunal proceedings and that therefore he owed a duty towards the tribunal. 17

18 In conclusion, we are reluctantly of the view that it is not sufficiently safe to carry out the works whilst the occupiers are in situ and that in any event it may not be possible for the Applicant to obtain adequate insurance cover from a reputable insurer and/or that it could be difficult for the Applicant to find a reputable contractor willing to carry out the works under these circumstances. Whilst the Respondents have valid concerns as to whether the Second Respondent would have difficulties in enforcing his right to return to the Property once the works have been completed, in our view the safety considerations override these concerns on the facts of this case. 18

19 Stick to statutory deadlines. MAN/00BR/HIN/2015/ Great Cheetham Street East, Salford, Manchester, M7 4XN An Improvement Notice which had also been served by second-class post, was invalid because it did not comply with the requirement of the Act by reason of the periods for carrying out the work (works where to be undertaken in less than 28 days i.e. before the earliest Operative Date). As the procedures in the Act relate to valid notices, the Tribunal ordered that the Notice was invalid and therefore quashed it. 19

20 Failure to refer to the law LON/00AG/HIR/2010/0001 Lower Ground Floor Flat, 33 Gloucester Crescent London NW1 7DL Appeal against decision to revoke an improvement notice Tribunal revoked the notice and imposed a prohibition order using its powers under s.230 The Tribunal was particularly concerned that the decision making process made no reference to the statutory provisions, the statutory guidance, to any policy decision on special circumstances and that no re-inspection of the property had been considered necessary. 20

21 The procedural rules -the overriding objective 3. (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes (a)dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal; (b)avoiding unnecessary formality and seeking flexibility in the proceedings; (c)ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d)using any special expertise of the Tribunal effectively; and (e)avoiding delay, so far as compatible with proper consideration of the issue 21

22 (3) The Tribunal must seek to give effect to the overriding objective when it (a)exercises any power under these Rules; or(b)interprets any rule or practice direction. (4) Parties must (a)help the Tribunal to further the overriding objective; and(b)cooperate with the Tribunal generally. 22

23 Some other key rules Rule 2 - Nothing in these Rules overrides any specific provision that is contained in an enactment which confers jurisdiction on the Tribunal Rule 6 extensive case management powers Rule13 costs and reimbursement of fees if a person has acted unreasonably in bringing, defending or conducting proceeding Time limit - 28 days after sending out decision 23

24 Case Management Conferences Following an application and the notification of parties a case management conference is held In Housing Act cases generally done without a hearing Set the timetable for the determination of the case Ensures issues are clearly identified 24

25 Sample directions in appeal against improvement notice The issues that the tribunal will need to consider include: Has the council gone through the necessary steps prior to issue of the improvement notice? Do hazards exist and if so what category? Should the council have taken enforcement action? If so, what enforcement action is appropriate? If an improvement notice is the correct action, should the terms be varied (specified remedial works and/or timescale). If works in the schedule are found to require vacant possession would a prohibition order be more appropriate? 25

26 How the respondent (the council) should prepare for the hearing The council must address the issues identified above and also provide a bundle of relevant documents for use at the hearing. The bundle should be filed, indexed and numbered page by page and must include: A full statement of the reasons for opposing the appeal including a response to any grounds of appeal advanced by the appellant and a report on the attempt to settle; Calculations for hazard rating; Any expert report to be relied upon at the hearing and/or any report by the officer responsible for the notice and employed by the respondent; The names of any witnesses to be called to give evidence at the hearing and a brief summary of the evidence they will give; Any other documents to be used at the hearing. The council must provide four copies of the bundle to the tribunal and one copy must be sent to the appellant on or before.. This bundle will be regarded as the respondent s case 26

27 Practical tips following CMC Comply with the directions/time limits (and double check) Tick the boxes Prepare a good bundle Scott Schedule Pagination Dividers Index Prepare a chronology 27

28 At the hearing Stay calm Make a list of points you want to cover Be familiar with the bundle Proceed through the chronology /Scott Schedule 28

29 The role of the Upper Tribunal A decision of a first tier tribunal may be appealed to the Upper Tribunal if: the decision shows that the tribunal wrongly interpreted or wrongly applied the relevant law; the decision shows that the tribunal wrongly applied or misinterpreted or disregarded a relevant principle of valuation or other professional practice; the tribunal took account of irrelevant considerations, or failed to take account of relevant considerations or evidence, or if there was a substantial procedural defect; or the point or points at issue is or are of potentially wide implication 29