Tenant's Service Charge Challenge Rejected Due to Insufficient Evidence

OUTCOME: Dismissed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AU/LSC/2020/0018, Property : Flat 3, [NAME], 32 [ADDRESS] [POSTCODE] Applicant : [redacted] : In Person Respondents : [redacted] : Mr. [COUNSEL] [NAME] of [NAME] :

Liability to pay service charges

Present at Hearing (conducted by CVP) : [NAME] Mr. [NAME]

Tribunal : Judge [NAME] of Decision : 21st April 2021

DECISION

1. This has been a remote video hearing which has been not objected to by the parties. The form of remote hearing was V:CVPREMOTE. A face-to- face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. The documents that we were referred to by the parties are in a bundle of 75 pages.

2. This [NAME] was heard on 26th March 2021 by CVP. The Applicant appeared in person, Mr. [COUNSEL] (the [NAME] agent) appeared for the freeholder. At the hearing the Tribunal dismissed the [NAME] and gave is reasons for doing so orally but indicated that it would also provide written reasons in the normal way.

2

3. This [NAME] was originally issued on or around 10th January 2020. It identifies the service charge year in dispute as “2017” and the value of the charges in dispute as £10,954.38. No meaningful detail as to the factual or legal basis of the challenge to those charges is set out in the [NAME] form.

4. Directions were made by the tribunal on 18th of February 2021. Those directions provided that, inter alia, the Applicant was to produce documents, by way of a schedule, statement or witness evidence, that set out what sums were in dispute and why they were disputed; including any legal submissions.

5. A schedule, in the form at page 32 of the bundle for today’s hearing was produced, but that schedule does not set out the basis for disputing any of the charges identified in it, merely that the sums in question are “disputed”.

6. The [NAME] was then listed for hearing on 8th September 2020. Following that hearing the tribunal made directions. In the directions it was recorded as follows:

The Tribunal could discern something of the background of the dispute from the papers contained in the hearing bundle submitted by the Applicant. The Tribunal noted that the Applicant’s case was not clearly articulated in the [NAME] or schedule of disputed service charges and that the Applicant had not filed a statement as required by the Directions given previously. It was not possible to clearly ascertain why the Applicant says the disputed charges are not payable.

7. By paragraph 6 of those directions the Respondent was directed to:

By 4pm on 27th October 2020 the Respondent, or their [NAME] agents on their behalf, shall send to the Tribunal and the Applicant a statement (in numbered paragraphs and verified by a signed statement of truth) which sets out the current balance of the Applicant’s service charge account and as well as any charges, deductions, variations credits and/or debits to that account from 2015 to date. The statement should contain a detailed explanation of how and why the various charges and deductions etc. were made and calculated.

8. By paragraph 7 of those directions the Applicant was also directed to:

By 4pm on the 24th November 2020 the Applicant shall send to the Tribunal and the Respondent a statement (in numbered paragraphs and verified by a signed statement of truth) setting out the following:

i. His evidence in response to that set out in the Respondent’s statement as described above.

3 ii. The legal and factual basis upon which he says the service charges set out in the schedule of disputed service charges are not payable and the total amount of services charges he says are not payable.

9. The Tribunal also issued a summons in respect of documents to be produced by the former [NAME] agents having been informed by the parties that they had been uncooperative with production of the same.

10. Following noncompliance with the 8th September directions by the Respondent, further directions were given on 22nd December 2021 following an [NAME] by the Applicant. There were

1. The Applicant has applied, in an [NAME] notice, for further directions following the Respondent’s apparent failure to comply with the previous directions dated 8th September 2020. The Respondent appears to agree that it has not complied with those directions in email correspondence attached to the [NAME]. The Tribunal therefore orders the following:

2. Unless the Respondent complies with paragraph 6 of the directions dated 8th September 2020 by 4pm on 4th January 2021 they shall be debarred from defending the [NAME].

3. The Applicant shall, notwithstanding any failure by the respondent to comply with the above, comply with paragraph 7 of the directions dated 8th September 2020 by 4pm on 1st February 2021.

4. The parties are advised to carefully read the previous directions which contain detail as to what is expected to be provided. The parties are also advised that given the inevitable postal delays during the Christmas period it maybe prudent to submit their evidence and documents electronically.

11. The Respondent has never complied with paragraph 6 of the 8th September 2020 directions. The statement contained within the bundle for today’s hearing at page does not for example set out the current balance of the service charge account or provide any narrative as to the various credits and debits from 2015 to date. That is what was ordered, it has not been provided and thus the Respondent is debarred from defending the [NAME].

12. That, however, is not the end of the matter. In the Tribunal’s view the Applicant has still comprehensively failed to set out the factual and legal basis of his challenge to the disputed charges. His statement, contained in the bundle for today’s hearing does not set out why these charges are said to have not been payable in any meaningful way.

13. He has had at least two opportunities since the issuing of the [NAME] to set out his case in that regard: firstly, following the initial directions in February 2020 and secondly following the further

4 directions from 22nd December 2020. The Tribunal appreciates that he is not a lawyer and has not had the benefit of legal advice, however it is of the firm view that what has been provided is insufficient to allow the Tribunal to conduct a proper assessment of the payability of the charges.

14. For example, although the [NAME] suggests the charges are from one service charge year (2017), but it is clear from the document at page 33 of today’s hearing bundle that the charges must have been incurred over a number of service charge years; not just one year. Further there is no written statement suggesting that the matters charged for were for services not carried out or that they were unduly expensive given the services said to have been performed or that they are not payable following an examination of the conditions of the lease.

15. The Tribunal considers that it would not be a proportionate use of the Tribunal’s time and resources to further adjourn the matter in the hope of such material being provided at some point in the future. It is not acceptable for an Applicant in cases such as this to simply put the landlord to proof that a series of charges were payable and then say nothing more about them. Equally it is not for the Tribunal to examine a set of service charges and try to ascertain for itself, without evidence or direction from the parties, whether they might be any reason to doubt the payability of those charges.

16. For those reasons, the [NAME] is dismissed. The Tribunal also declines to make a ‘s.20C’ order limiting the recoverability of the Landlord’s costs (as per s.20C of the Landlord and Tenant Act 1985). The Tribunal notes the landlord has represented itself in these proceedings so there are unlikely to be any costs, but in any event the Applicant has been unsuccessful and there is no other reason why the recovery of such costs should be limited.

Tribunal Judge [NAME]

5

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written [NAME] for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber). 9(7) and (8) of the 2013 Rules.