Defended Tribunal applications inevitably lead to delays in the process for landlords in terms of recovery. This is in addition to the enforcement of eviction delays due to the eviction moratorium. One could not be criticised for suggesting that the balance of fairness now appears to be heavily weighted in favour of the tenant both in terms of the substantive law and the eviction procedure.
We consider the recent case of…
Hutcheson v Russell [2023 UT 12] in which a tenant sought permission to appeal from the Upper Tribunal (UT) after the First-Tier Tribunal (FTT) granted an eviction order.
The tenant had accrued arrears of rent and the landlord sought to evict the tenant as a result. The landlord served notice on 8th April 2022. An application for eviction was lodged on 30th May 2022. The case called for a Case Management Discussion on 29 August 2022. The tenant failed to attend and the Tribunal granted eviction and payment orders in his absence.
Thereafter, the tenant sought to recall the Tribunal’s decision and in addition sought permission to appeal. Both requests were 34 and 20 days late respectively. The tenant stated he had been working away and that notice of any proceedings had not been served on him.
The FTT refused both requests and did not consider it in the interests of justice to extend the time limits, as is permitted by the Tribunal Rules.
Following the refusal, the tenant sought permission to appeal from the UT, following the process set out by the legislation which allows the UT to grant such permission where there are ‘arguable grounds for the appeal’.
In relation to the test for granting permission to appeal, the UT held the ‘threshold of arguability was relatively low, but an appellant did require to set out the basis of a challenge from which could be ascertained a ground of appeal capable of being argued at a full hearing’.
In April 2023 the UT found the FTT had not erred in making its decision in the tenant’s absence nor had it erred in refusing permission to recall or appeal. Permission to appeal was therefore once again refused by the Upper Tribunal.
This case highlights that despite having failed to engage in the process until after an award was granted against him, the tenant was able to delay the process by way of late challenges to the decision. This case highlights the practical reality of the Tribunal Rules and potential for delays and disruption by the tenant. One assumes the tenant continued to occupy the property during the appeal process.
Still no expenses?
Notably, the landlord’s request for expenses in relation to the appeal was also refused. Although ultimately unsuccessful, the Upper Tribunal held that the tenant was entitled to seek recall and appeal in the manner he had, thus exerting his rights under the legislation. Doing so did not amount to unreasonable conduct of the case and so the landlord was not entitled to expenses.
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