R (on the application of Spaul) v Upper Tribunal (Administrative Appeals Chamber)

Article

11 June, 2013

A recent application for judicial review of a decision by the Upper Tribunal has been refused and it was concluded that there had been no substantial procedural defect in an alleged failure to serve notices on a leaseholder at what he said was his correct address.

Background

Mr Spaul applied for judicial review of a decision of the Upper Tribunal refusing his application for permission to appeal a decision made by the leasehold valuation tribunal (LVT).

Mr Spaul was the leaseholder of a flat in a building in London. The management company of the building applied to the LVT to determine the service charge payable by the leaseholders of the building, for the costs incurred by major works under s.27A Landlord and Tenant Act 1985. The LVT then sent notice of the management company's application to all the leaseholders named in the application, in accordance with Regulation 5 Leasehold Valuation Tribunals (Procedure) (England) Regulations 2003. Mr Spaul was named in the application and notice was sent to his flat in the building concerned. Mr Spaul then argued that he had not received the necessary notice under s.20 Landlord and Tenant Act 1985 or notice of the management company's application to the LVT. Mr Spaul claimed that this was a 'substantial procedural defect' and justified permission to appeal against the decision of the LVT. The Upper Tribunal, however, refused permission to appeal on the basis that there was nothing to suggest that the management company knew that Mr Spaul's address was not at the building concerned or that knew of his alternative address.

Mr Spaul then applied for judicial review of the decision of the Upper Tribunal. He claimed that if the Upper Tribunal had considered his evidence properly, they would have found that there had been a substantial procedural defect in the decision of the LVT. Mr Spaul's application for judicial review, however, was refused.

Key Points of Decision

  • In order to determine Mr Spaul's claim it was essential that the court considered the evidence that Mr Spaul had submitted to the Upper Tribunal when he applied for permission to appeal the decision of the LVT. Unfortunately the evidence he presented on the critical point of whether or not the management company knew of his alternative address, was poor and there were no witness statements to support his case. Mr Spaul claimed that he had shown the Upper Tribunal a letter to his landlord and the management company informing them of his change of address but he failed to show that the letter had been included in the evidence given to the Upper Tribunal.
  • On the other hand, the management company provided detailed evidence disputing the allegation that they were aware of Mr Spaul's change of address. They provided convincing documentary evidence that they had asked Mr Spaul for an alternative address to send correspondence to but he had not responded.
  • After taking into account all of the circumstances the court decided that the Upper Tribunal probably went too far in stating that there was nothing to indicate that the management company knew Mr Spaul had another address and they knew what that address was. The court concluded, however, that the Upper Tribunal was entitled to find that there had not been a 'substantial procedural defect' after considering the evidence that had been available to the court.

Overview

The management company benefited from the lack of evidence from the leaseholder making the allegations and substantial documentary evidence from the management company denying the allegations. This case, therefore, highlights the importance of documentary evidence where there is a dispute over an allegation that the correct s.20 consultation notice has not been served. The absence of clear evidence indicating that landlords and/or management companies have tried to obtain the correct addresses for the leaseholders may lead to the LVT deciding that the correct form of notice has not been given. It is essential, therefore, that if a landlord and/or management company suspect that a leaseholder has changed their address, they take steps to try to obtain the correct address from the leaseholder and those steps are recorded

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