Kwasi Date-Bah & Anor v Rachel Radice

A tribunal may use an email address supplied by a party for service, including where the address appears in a recently expired tenancy agreement and emails continue to be delivered. That does not determine whether a hearing should be adjourned.

An adjournment is a case-management decision, but refusal is unlawful where it falls outside the generous range of permissible decisions. Relevant considerations include the party’s actual opportunity to prepare, the inability to give evidence, the seriousness of the consequences, and whether contested facts, including an alleged criminal offence, can fairly be determined in the party’s absence. In fixing a rent repayment order, the tribunal must consider the seriousness of the offence and relevant guidance, and must give parties a fair opportunity to provide evidence relevant to quantum.

Mr and Mrs Date-Bah appealed against a decision of the First-tier Tribunal (Property Chamber) making a rent repayment order of £9,750 in favour of their former tenant, Rachel Radice.

The property had been subject to a selective licensing scheme. The appellants accepted that it had been managed without a licence during the relevant period. The FTT served proceedings by email using an address stated in the tenancy agreement, but the appellants said that they no longer monitored that address. They received the hearing notice only two working days before the hearing and sought an adjournment. The FTT refused the application, proceeded with the hearing, and made the order in the full amount claimed.

The central issue was whether the refusal to adjourn caused procedural unfairness and whether the FTT’s decision should stand.

1. Service by email. The FTT was entitled to use the email address supplied in the tenancy agreement. The agreement had expired only recently, the address remained live, and emails had not bounced back. The appeal was not against service itself. The relevant rule was rule 16 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.
2. Adjournment. The refusal to adjourn was a case-management decision. The Upper Tribunal would interfere only if it fell outside the generous margin of discretion available to the FTT. That margin was exceeded here. The FTT appears to have accepted that the appellants had not received the proceedings until 9 June 2022, yet gave no adequate consideration to their lack of preparation, the difficulties concerning childcare and a medical appointment, or the consequences of deciding contested factual issues without their evidence.
3. The proceedings required the FTT to determine whether a criminal offence had been committed and to resolve contested facts. Under rule 34 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, notification of the hearing was not enough: the FTT also had to consider whether proceeding in the party’s absence was in the interests of justice. The same considerations would have been relevant to setting aside a decision under rule 51.
4. Quantum. The appellants had no fair opportunity to address the allegation that they were professional landlords, the condition of the property, or their financial circumstances. The FTT also failed to consider the seriousness of the offence or the guidance in Acheampong v Roman and others [2022] UKUT 239 (LC). Moving directly to repayment of the whole amount claimed because evidence had not been filed was neither legally correct nor fair.
5. The appeal succeeded. The FTT’s decision on the quantum of the rent repayment order was set aside. The matter was remitted to the FTT for a fresh determination of the amount payable by a different panel. The application to adduce fresh evidence in the appeal was not considered because the appeal proceeded by way of review; directions for the rehearing would provide for evidence from both parties.

• Upper Tribunal (Lands Chamber): allowed the appeal against the First-tier Tribunal’s decision, set aside its decision on the quantum of the rent repayment order, and remitted the matter for fresh determination by a different panel.
• First-tier Tribunal (Property Chamber): refused an adjournment, proceeded with the hearing, and made a rent repayment order of £9,750.