Rouphina Chinws Onyiliagha v You Move Lets Ltd

Where material facts are disputed, a tribunal will rarely be able to determine the dispute fairly on written evidence alone. This is particularly so where the tribunal must decide which party’s account is accurate and credibility may require testing through oral evidence and cross-examination. A decision made on the papers in such circumstances should be set aside and remitted for a rehearing. An appellate tribunal conducting a review cannot itself hear and assess the further factual evidence.

Rouphina Chinws Onyiliagha v You Move Lets Ltd concerned an appeal from a First-tier Tribunal determination of market rent under sections 13 and 14 of the Housing Act 1988. The landlord proposed an increased rent for an assured tenancy. The FTT determined the application on the papers and treated the proposed rent as the market rent.

The tenant supplied evidence disputing the landlord’s account of the property’s condition and facilities. The central issue was whether the FTT could fairly resolve those contested factual matters without an oral hearing.

1. The appeal succeeded. The FTT’s decision was set aside and the matter was remitted to the FTT for a rehearing.
2. The FTT had jurisdiction because the landlord had given the notice required by section 13 of the Housing Act 1988. The dispute then concerned the evidence relevant to the market rent, including the condition and facilities of the property.
3. Where the parties’ factual accounts materially conflict, it will rarely be possible for the FTT to decide the case fairly on the papers. That is especially so where the tribunal must determine which account is true and the evidence may require oral testing by cross-examination. The FTT had not explained how it resolved the conflicting evidence.
4. The Upper Tribunal, hearing an appeal by way of review, could not itself hear and assess the further factual evidence supplied by the parties. The evidence concerning the property’s condition therefore had to be assessed by the FTT at a rehearing.

• Upper Tribunal (Lands Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the matter for rehearing.
• First-tier Tribunal (Property Chamber): determined the landlord’s market-rent application on the papers and decided that the proposed rent was the market rent.