Elizabeth Alexander & Anor v Mark Middleton

This is an appeal from a determination by the First-tier Tribunal of the market rent for 2 Boulton Road, Dagenham, RM8 3DD. It has been decided under the Tribunal’s written representations appeal; neither party has been legally represented.

The property is a two-storey end of terrace house; the appellants live there under an assured shorthold tenancy, granted for twelve months from 31 July 2019 and continuing after that from month to month.

In these circumstances section 13 of the Housing Act 1988 provides that:

Section 13(4) says that where such a notice is served the new rent takes effect as stated in the notice unless, before the date of the new period of the tenancy, the tenant refers the notice to the FTT. Section 14 says that if the tenant does so, the FTT:

On 1 March 2023 the appellants referred to the FTT a notice of increase of rent served by the respondent. It was dated 28 February 2023 and proposed a rent of £1,400 per month with effect from 31 March 2023 in place of the existing rent of £1,100 per month. The appellants made an application to the FTT for a determination of the market rent for the property pursuant to section 14 of the 1988 Act.

The FTT received written submissions from both parties and conducted a hearing on 16 August 2023 and visited the property on the same day. The parties agreed that if the house were modernised and in good condition the open market rent would be £1,400 per month. Equally, both accepted that it was in poor condition; the appellants gave evidence of a range of defects including defective plumbing, leaking gutters, damp and mould.

The landlord’s position was that he had agreed a schedule of works with the Environmental Health Officer but had not been able to complete the requisite repairs because the tenant had “offered limited access” to the property.

The FTT said that in reaching its decision it took into account the lack of modernisation of the house but disregarded the need for remedial work required by the Environmental Health Officer because the tenants had not afforded the necessary access to enable the work to be done. It determined that the open market rent of the property from 31 March 2023 was £1,200 per month.

The tenant has permission to appeal, granted by this Tribunal, on the basis that any difficulties with access arose after the date on which the new rent was supposed to take effect.

As is usual for determinations of market rent the FTT’s reasons for its decision were brief, and given at the request of the tenant. The difficulty with the decision is that the FTT made no findings of fact about when access was requested and refused.

Material supplied by both parties in the appeal indicates that the respondent visited the property on 15 March 2023 and that the Environmental Health Officer, Ms Kingsnorth, inspected the property on 21 March 2023. Any schedule of works must have been agreed after that date. Ms Kingsnorth wrote to the appellants on 27 March 2023 setting out a schedule of works that the respondent had agreed to carry out and requesting dates for access; the appellants on 28 March offered access on a range of dates in April, and there was then further discussion because a continuous period of access was needed.

Anything that happened after 31 March 2023, the date from which the new rent was to take effect and therefore the valuation date, could not affect the rent at which the property would be expected to let on that date. Any unreasonable refusal of a request for access made after that date was therefore irrelevant and ought not to have been taken into consideration.

The respondent in his statement of case in the appeal said that some work was done in early 2023, that Ms Kingsnorth visited on 21 March 2023, and that he agreed to do the work needed at the property but that “due to the tenant cancelling and stopping the works this is why the work could not be completed before the end of March.” Copies of emails provided by the respondent, going back many months, show that the parties’ relationship has been a difficult one, and that the causes of disrepair in the property are in dispute.

It is difficult to see how the extensive work needed could have been completed between Ms Kingsnorth’s inspection on 21 March and the end of the month even if the respondent had had access during that short period. The correspondence between Ms Kingsnorth and the applicants does not suggest that anything like that was planned and does not suggest that the appellants “cancelled” anything between 21 and 31March.

This Tribunal of course can make no findings of fact in the appeal; but what is important is that the FTT made no findings of fact that there was any refusal of access before the end of March. If the FTT regarded refusals to give access after the end of March 2023 as relevant to the rent on 31 March 2023 then it made an error of law. If its decision was indeed based on anything that happened before that date to prevent the works required by the Environmental Health Officer being done then it is not possible to see how that was justified on the evidence in the absence of findings of fact.

Either way, the FTT’s decision is set aside, and the matter is remitted to the FTT to be re-determined.