Fah Hor Chong v Eleonora Angela Severgnini & Ors

A procedural irregularity alone does not justify setting aside a tribunal decision. The irregularity must have serious consequences and render the decision unjust. In assessing that question, the tribunal considers whether the material unavailable because of the irregularity would or might have made a difference. If the decision clearly would have been the same, the irregularity is not a basis for setting it aside.

Mr Chong appealed against the First-tier Tribunal’s decision ordering him to repay 35% of the rent received from his former tenants, Ms Severgnini, Ms Ecsedi and Ms Kim, while their shared home was an unlicensed house in multiple occupation. The FTT rejected his claim that advice from local authority licensing staff gave him a reasonable excuse for letting without a licence.

On an earlier appeal, the Upper Tribunal set aside the FTT’s first decision and remitted the application for redetermination. In this appeal from the FTT’s second decision, Mr Chong argued that the hearing was procedurally unfair because the FTT had not considered documents he had sent before its first decision. The central issue was whether that irregularity rendered the second decision unjust.

1. The appeal was dismissed. On an appeal under section 53 of the Housing and Planning Act 2016, the Upper Tribunal does not retry the facts. It takes the FTT’s findings as given unless they are inconsistent with the evidence the FTT heard. The FTT’s reasons for rejecting Mr Chong’s account of the advice he received in 2021 were coherent and properly explained.

2. There had been a procedural irregularity. The FTT’s directions about documents filed after the first hearing were at best ambiguous, and Mr Chong could reasonably assume that material sent before the first decision would be available at the redetermination. The FTT panel did not have the material because it mistakenly understood that it had been sent only to the Upper Tribunal.

3. A procedural irregularity warrants setting aside a decision only if it was serious, in the sense of having serious consequences, and rendered the decision unjust. The same restriction applies to the FTT’s power under rule 51 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, which requires the FTT to be satisfied that setting aside is in the interests of justice. The analogous test in rule 52.21(3) of the Civil Procedure Rules likewise requires injustice caused by a serious irregularity. The Upper Tribunal must consider whether the missing material would, or might, have made a difference.

4. The documents were phone records confirming calls to the Council in January 2023. The FTT already accepted that those conversations took place. The records did not bear on what Mr Chong was told in June or July 2021, which was the central factual issue, and could not weaken the FTT’s stated reasons for rejecting his account. The irregularity therefore made no difference and did not render the decision unjust. The Tribunal also stated that Council officers had no power to intervene in or block a rent repayment order application.

5. The remaining grounds had no prospect of success: the respondents could be represented by a Council officer, there was no indication that the FTT treated submissions as evidence, and any alleged data-protection breach was irrelevant. The appeal was dismissed.

1. Upper Tribunal (Lands Chamber) — In [2026] UKUT 239 (LC) , dismissed Mr Chong’s appeal against the FTT’s second decision.
2. First-tier Tribunal (Property Chamber) — On redetermination, ordered Mr Chong to repay 35% of the rent.
3. Upper Tribunal (Lands Chamber) — On Mr Chong’s first appeal, set aside the FTT’s decision of 11 June 2024 and remitted the application to a differently constituted panel on 8 November 2024.
4. First-tier Tribunal (Property Chamber) — Its first decision ordered repayment of 50% of the rent; that decision was set aside on appeal.