Seng Keong Teoh & Ors v Irene Patsovska

Where a tenant refers a landlord’s notice of increase of rent to the First-tier Tribunal for determination and names their landlord’s managing agent as the only respondent to the reference, is the tribunal entitled to communicate only with the agent named by the tenant and to hear the reference in the landlord’s absence?

That practical question arises in this appeal against a decision of the First-tier Tribunal, Property Chamber (the FTT) following a referral for determination of the rent payable under an assured tenancy of a flat in Barnet in North London. The tenant, Ms Patsovska, had received a notice under section 13 of the Housing Act 1988 from her landlords’ managing agents, proposing a new rent £2,300 a month with effect from 30 July 2024 in place of the £1,700 a month she had been paying. She referred the notice to the FTT under section 14 of the 1988 Act and by its decision of 14 November 2024 the FTT decided that the new rent should be £1870.00 a month and that it should only take effect from 1 October 2024.

The landlords, Mr Seng Keong Teoh, Wun Tan, and Belamy Teoh were not notified of the application by the FTT. Instead, the FTT communicated only with their managing agents, Haart, who had served the notice of increase and who had been identified by the tenant as the respondent to the application. Haart made limited submissions but did not attend the hearing. Nor did the landlords.

The landlords now appeal against the FTT’s decision, with the permission of this Tribunal. They say that they were never made aware of the existence of the proceedings and were unable to participate and that the way in which the proceedings were conducted was therefore unfair and the FTT’s decision should be set aside. It has not yet been determined whether the landlords were unaware of the proceedings.

The landlord under an assured tenancy is entitled to seek a rent increase with effect from the anniversary of the commencement of the tenancy. To obtain that increase the landlord must serve a notice proposing a new rent (section 13(2), 1988 Act). The new rent will then take effect from the date specified in the notice unless the tenant refers the notice to the appropriate tribunal (which in England is the FTT) (section 13(4)). Where a tenant refers a notice to the FTT, it is required to determine the rent at which it considers the property would let in the open market on certain assumptions (section 14(1). The rent determined by the FTT then becomes the new rent for the tenancy with effect from the date specified in the original notice, unless the FTT considers that would cause undue hardship to the tenant, in which case it may specify a later date (section 14(7)).

A previous FTT determination of 23 October 2023 (which is publicly accessible on the FTT’s website) provides some relevant background information missing from the decision under appeal. The tenancy of the flat was granted by the landlords to the tenant on 30 June 2020. The original rent was increased to £1,575 and increased again by the FTT to £1,700 with effect from 30 July 2023. The rent determined by the FTT in 2023 took account of an improvement notice served by the local authority which required the landlords to remedy defective ventilation in the bathrooms and kitchen which had caused mould in the flat. The FTT said that it had reduced the rent by 15% to take account of the notice and other matters relied on by the tenant.

On 20 June 2024 Haart served a notice under section 13(2) of the 1988 Act which proposed a new rent of £2,300 to take effect from 30 July 2024. The notice was then referred to the FTT by the tenant on 8 July 2024.

I have inspected the FTT’s file from which I can see that the application submitted by the tenant named Haart as the “Landlord or Agent” and gave its postal address and two of its email addresses, including that of Mr Uzukov, who had signed the section 13 notice. He was also stated to be the landlords’ representative.

I should explain at this stage that section 3 of the FTT’s standard form of application, “Rents 1”, which is intended for use by tenants seeking a determination of a market rent following the receipt of a landlord’s notice under section 13 of the 1988 Act, requires the tenant to supply certain information, including the “Name and address of landlord or agent(s)” and a “representative name and address”. On the face of it, therefore, there was nothing inappropriate about the tenant’s application in this case. As requested, she identified the landlord’s agent, Haart, and gave the name of the member of staff at Haart who had signed the notice. She was not required to say whether the person she had named was the landlord or was the landlord’s agent, and she did not do so.

The tenant provided a copy of her tenancy agreement with her application, which showed that her landlords were the three appellants and referred to their UK address (I understand that two of them live in Malaysia). She also supplied a copy of the notice proposing the increase in rent which had been served by Haart on behalf of the landlords on 20 June 2024. The notice was given by Haart in its own name, identifying itself as the landlords’ agent, and did not name the landlords.

Although the FTT had the landlords’ name and address (from the tenancy agreement) it did not serve the proceedings on them at that address. On 23 August a copy of the application, together with procedural directions and a blank form of reply to be completed and returned, were provided instead to Haart at its address, marked for the attention of Mr Uzokov. The directions named the three landlords as parties to the application and it was clearly appreciated that they, and not Haart, were the respondents.

A reply form signed by Mr Uzokov and describing him as the Landlords’ managing agent was later sent to the FTT by Haart, accompanied by lettings information for properties on the market at that time. The reply stated that Mr Uzokov did not require a hearing or an inspection and provided no information about his availability for a hearing. On 24 October the FTT notified Mr Uzokov that a hearing of the application would take place on 14 November 2024.

The tenant attended the hearing on 14 November but Haart did not and nor did the landlords. In its subsequent decision the FTT recorded that evidence was given by the tenant about the condition of the flat and that she had asserted that the bathroom extractor was in disrepair, which caused mould in the living room and bedroom. The tenant also supplied photographs.

The FTT did not carry out its own inspection but accepted the tenant’s evidence about the condition of the flat (as it was entitled to do). It reduced the new rent by 15% as a discount to reflect the condition of the bathroom and the wider property, arriving at a figure of £1,870, which it decided should commence from 1 October 2024 rather than the date specified in the notice of increase.

Proceedings in the FTT are conducted in accordance with the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (the Rules). The overriding objective of the Rules is to enable the FTT to deal with cases fairly and justly (rule 3(1)). That objective is reflected in rule 8(1), which provides that an “irregularity” resulting from a failure to comply with any provision of the Rules, a practice direction or a procedural direction given by the FTT does not of itself render the proceedings void or invalidate any step which has been taken. By rule 8(2) the FTT may “take such action as the Tribunal considers just” in response to any such irregularity and a non-exhaustive menu of remedial steps is then provided including waiving the relevant requirement, requiring the failure to be remedied, or imposing a sanction. The underlying principle is therefore that the achievement of perfect compliance with the Rules is not an end in itself and is not to be prized above dealing fairly and justly with the case.

For the purpose of this appeal, the most important of the Rules is rule 14, which is concerned with representatives. Rule 14(1) explains that, as one would expect, a party may appoint a representative (whether they are legally qualified or not) to represent them in FTT proceedings. The rule continues:

“(2)

If a party appoints a representative, that party must send or deliver to the Tribunal and to each other party written notice of the representative's name and address.

(3)

Anything permitted or required to be done by or provided to a party under these Rules, a practice direction or a direction may be done by or provided to the representative of that party except—

(a)

signing a witness statement; or

(b)

sending or delivering a notice under paragraph (2), if the representative is not a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation within the meaning of that Act.

(4)

A person who receives due notice of the appointment of a representative—

(a)

must thereafter provide to the representative any document which is required to be sent to the represented party, and need not provide that document to the represented party; and

(b)

may assume that the representative is and remains authorised until receiving written notification to the contrary and an alternative address for communications from the representative or the represented party.”

It goes without saying that a party may not appoint a representative for another party. The only way the Rules envisage the appointment of a representative is by the party concerned sending or delivering to the FTT and to each other party written notice of the representative's name and address. Once a party has taken that step, with two important exceptions the representative may then do anything which the party would be entitled to do, and others may provide documents to the representative as if they were dealing with the party themselves. It is clear that “the representative” (note the definite article) referred to in rule 14(3) is intended to be a reference to a representative in relation to whom the FTT and each other party has been given notice under rule 14(2). An agent appointed by a party is not a representative of a party for the purpose of the Rules unless and until notice of their appointment has been given by that party under rule 14(2).

The second of the exceptions to the general principle in rule 14(3) emphasises the importance of there being no doubt that a representative acts with the authority of the party they represent. Thus, unless they are a solicitor or some other person authorised to conduct litigation, a representative may not give a notice identifying themselves or anyone else as a representative of a party (rule 14(3)(b)). That restriction is included in the Rules for the protection of other parties and to preserve the integrity of the FTT’s proceedings, and it applies even if the representative has been given specific authority by the party to act on their behalf. It is not enough that a representative has been appointed by a party; for the appointment to have the effect described in rules 14(3) and (4), the party must give notice of the appointment, and until they do, neither the FTT nor any other party may confidently communicate with the representative alone.

Rule 26 deals with starting proceedings in the FTT, which is done by delivering a notice of application. An application must include certain information, including the name and address of each respondent. A “respondent” is the person against whom an applicant brings the proceedings (rule 1(3)) and in the case of an application under section 13 of the 1988 Act that person is the landlord. Interestingly, rule 26 does not require an applicant to include the name of any agent or representative of the respondent. Whether a respondent chooses to appoint a representative to conduct the proceedings on their behalf, and the identify of that representative if they do, are not matters which an applicant can know when they make their application.

When the Tribunal receives a notice of application it is required by rule 29(1) to provide a copy of the application and any accompanying documents to the respondent. This is a fundamental step in the proceedings as it is the first occasion on which the respondent, the person against whom the claim is being brought, will have formal notice of the proceedings. The FTT may also give notice of the application to any other person it considers appropriate (rule 29(7)), which could include an agent or representative who has been identified in the application notice, but this step can only ever be taken in addition to providing a copy of the application to the respondent themselves.

The FTT must give each party reasonable notice of the time and place of any hearing which it holds (rule 32(1)). Because of rule 14(3), this obligation can be satisfied by giving notice of the hearing to a representative, but only if notice of the representative’s appointment has been given by the party by a notice under rule 14(2).

Rule 34 deals with hearings in a party’s absence. It provides:

“If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal—

(a)

is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

(b)

considers that it is in the interests of justice to proceed with the hearing.”

As I explained in Osagie v Onwuka [2024] UKUT 293 (LC), a tribunal cannot validly exercise its discretion to proceed in the absence of one of the parties unless it concludes that both limbs of the rule have been satisfied. The FTT itself must be satisfied that the party has been notified of the hearing (for example because the party acknowledged receipt of the notice of hearing) or that reasonable steps have been taken to notify it (for example by sending notice of the hearing to the party themselves or to a properly nominated representative of whose appointment the party has given notice). The FTT must also direct its mind to whether it is in the interests of justice to proceed with the hearing.

I should refer finally to rule 51, which enables the FTT to set aside a decision of its own which has disposed of the proceedings if it is in the interests of justice for it to do so and if one or more of the conditions in rule 51(2) are satisfied. Those conditions include (a) thata document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative, and (c) that a party, or a party's representative, was not present at a hearing related to the proceedings, or (d) that there has been some other procedural irregularity in the proceedings. Rule 51 is an important tool which enables the FTT to correct its own course, if it is in the interests of justice for it to do so, without the need for an appeal where something appears to have gone wrong with the proceedings.

It will be obvious from this review of the relevant procedural Rules that the proceedings in the FTT were set on a faulty course at the moment of their commencement. The tenant did not provide the name and address of the proper respondent and, as a result, the FTT was not in a position to comply with its own obligation under rule 29(1) to give notice of the proceedings to the respondent. Haart, the landlords’ agent, was not a proper respondent to the application, even though it gave the notice under section 13(2) proposing a new rent in its own name.

The tenant can readily be forgiven any error because the FTT’s standard form indicated to her that it would be sufficient to provide the name and address of her landlords’ agent. It may be that what the tenant did was not an error and complied with the Rules. That is because the list of information which rule 26(2) requires to be included with a notice of application is qualified by the words “unless a practice direction makes different provision”. Paragraph 11 and Schedule 11 of the FTT’s Practice Directions for residential property cases, published by the Senior President of Tribunals on 9 September 2013, requires that the prescribed form be used for applications under section 13 of the 1988 Act. The prescribed form is Rents 1, which makes different provisions from rule 26(2)(d) because it allows the name and address of a landlord’s agent to be given as an alternative to those of the landlord/respondent.

The prescribed form is, at best, unhelpful in that it either misrepresents or dispenses with the requirement of rule 26(d) that the name and address of the respondent be provided in the notice of application. The only proper respondent is the landlord, as the counterparty to the tenancy, the person on whose behalf the notice of increase was served, and the person with whom the tenant is in dispute. The form does require the tenant to supply copies of any tenancy agreement and the landlord’s notice of increase, which may include the name and address of the landlord, but the potential for misunderstanding or error when the FTT comes to serve the notice of application is highlighted by what appears to have happened in this case. The Practice Directions do not modify rule 29 and do not permit the FTT to give notice of the proceedings to anyone other than the landlord.

Whether it was an error, or whether it complied with the rule as modified by the Practice Direction and the prescribed form, the tenant’s misidentification of the respondent was no doubt the source of the FTT’s own administrative error in sending notice of the proceedings only to Haart, and not to the landlords themselves.

Haart was the landlords’ agent for the purpose of managing the premises, Haart had served the section 13(2) notice, and Haart filed a response to the application supporting the increase proposed in the notice. But none of those facts entitled the FTT to treat Haart as if it was a representative nominated by the landlords. The tenant could not invest Haart with any status or authority in the proceedings by naming it as the landlords’ agent. Only a notice under rule 14(2) given by the landlords themselves and informing the FTT that Haart had been appointed by them to act as their representative could provide the authority which the FTT required to enable it to deal directly with Haart, rather than with the landlords.

For these reasons I am satisfied that, because the FTT did not provide a copy of the application to the landlords, as required by rule 29, and did not give them notice of the hearing, as required by rule 32, the proceedings were conducted irregularly.

What is the consequence of that irregularity, and what should the Tribunal’s response to it be? As to the first of those questions, rule 8(1) is clear and is expressed in perfectly general terms. An irregularity resulting from a failure to comply with any provision of the Rules does not of itself render the proceedings or any step taken in the proceedings void. There is no reason to confine that dispensation to irregularities resulting from a failure by a party to comply with the Rules; it applies just as much to non-compliance by the FTT itself, including administrative lapses. It follows that the FTT’s decision was not void or ineffective simply because the landlords were not served with the proceedings or given notice of the hearing.

As to the second question, what should the Tribunal’s response to the irregularity be, it is necessary to refer to section 12 of the Tribunals, Courts and Enforcement Act 2007, which is concerned with the powers of this Tribunal when it hears appeals from the FTT. The Tribunal may only set the decision aside if it finds that “the making of the decision concerned involved the making of an error on a point of law”. The concept of an “error of law” is not narrowly understood and includes a material breach of the rules of natural justice (as Carnwath LJ explained in Railtrack plc v Guinness Limited [2003] EWCA Civ 188 at [51]). The same is true of other procedural irregularities if they are sufficiently serious to cause the decision of the FTT to be unjust. Osagie v Onwuka is an example of a case in which there had been a procedural irregularity but it was possible to be confident that it had made no difference to the outcome of the proceedings so that the decision of the FTT was not unfair and could be left undisturbed.

The irregularity in this case was undoubtedly serious. If the landlords were genuinely unaware of the proceedings, there would be no doubt in my mind that the FTT’s decision should be set aside and a new hearing directed to take place. The landlords now say that if they had been aware of the application they would have produced evidence to show that problems with the appliances and ventilation in the flat which the tenant relied on had been resolved before the notice of increase was served. The FTT took those problems into account by reducing the rent which it would otherwise have determined and can safely be assumed that fuller participation by the landlords might have made an important difference to the outcome.

It has not yet been determined whether the landlords were unaware of the proceedings, as they maintain. What if they were informed of the proceedings by Haart and made an informed choice not to participate but to leave Haart to represent their interests as best it could? In those circumstances it might be said that there would be nothing unfair or unjust in waiving the failure to serve the proceedings properly or give notice of the hearing to the landlords personally.

It is apparent from the FTT’s file that the landlords were not notified of the proceedings by the FTT itself. I do not know whether Haart notified the landlords that the proceedings had been served on it and sought their instructions, or whether Haart made its own decision not to attend the hearing without the landlords being aware that the proceedings were underway. In their notice of appeal the landlords say they were unaware of the proceedings and of the opportunity they had to make submissions, provide evidence and attend the hearing. There is no material before me which would justify me in disbelieving them and dismissing their assertion as untrue.

In Bank of Scotland v Pereira [2011] EWCA Civ 241, the Court of Appeal gave guidance on how an application under CPR 39.3 to set aside a judgment after a trial which one party had not attended. That guidance does not apply to Tribunals, but it is helpful by analogy. Lord Neuberger MR emphasised, at [53], that “in the great majority of cases, a judge hearing such an application should not allow oral evidence” and that this oral evidence and cross examination should be allowed “only in exceptional cases”. To do otherwise would be “inconvenient and time-consuming”, and “wherever possible” the court should scrutinise such applications and deal with them on the basis of written evidence.

In my judgment it is consistent with the Tribunal’s overriding objective for me to proceed in this appeal on the basis that the landlords were unaware of the proceedings. It would be disproportionate, and therefore inconsistent with the overriding objective, to require the FTT to conduct a hearing to establish whether what the landlords say about their state of knowledge is true. If further resources are to be devoted to this case, they should be devoted to consideration of evidence about the time at which the remedial work to the property was completed. The uncertainty over service has not been caused by either of the parties, or by accident, but by an omission by the FTT itself to follow its own Rules. That seems to me to justify affording the benefit of the doubt to the landlords.

On that basis the procedural irregularity did render the proceedings unfair, and the only possible disposal of the appeal is to set the decision aside and remit the proceedings to the FTT for redetermination.

This analysis is independent of any consideration of rule 34, which the Tribunal referred to when giving permission to appeal, but which I do not think adds anything of significance. The FTT conducted the hearing in the absence of the landlords or Haart because it assumed that notice of the application had come to the attention of the landlords, and that when Haart stated that they did not require a hearing and did not attend the hearing, they were doing so on the landlords’ instructions. Those assumptions would have been entirely justified if the proceedings had been sent to the landlords at their own address, rather than being sent to Haart. By filing a response to the application Haart provided support for the same assumptions. But Haart was not a nominated representative and nothing which it did could make it the landlords’ representative for the purpose of the proceedings, nor could it regularise the FTT’s procedural irregularity by filing a response.

If the FTT had appreciated that no notice of the proceedings had been given to the landlords themselves, and that Haart had not been properly nominated as their representative, it could have considered what remedial action to take under rule 8. That action would have involved either serving the application on the landlords or obtaining confirmation from them that Haart acted as their representative. Whether the omission to take that remedial action rendered the proceedings unfair raises the same factual question as before. For the same reasons I will answer that question in the landlords’ favour and will assume that they were unaware of the proceedings.

For these reasons I allow the appeal, set aside the FTT’s decision, and remit the matter to it for redetermination. The question for it to determine will be, as before, the rent at which the property could be expected to have been let on 30 July 2024 having regard to the matters in section 14 of the 1988 Act. There is no reason why the redetermination should not be by a panel which includes members of the original panel.