Can the Tribunal be satisfied that a landlord is guilty beyond reasonable doubt without holding a hearing?
The Property Chamber’s procedural rules allow the Tribunal to decide cases without holding a hearing if the parties to the case have consented to this. The Tribunal comes to a decision on the basis of documents provided by the parties in a process which is sometimes called a ‘paper determination’.
If the Tribunal indicates that it intends to make a ruling on a case without holding a hearing, then a party is considered to have consented to this if they do not object. The steps that a Tribunal is required to take before proceeding with a paper determination are contained in Rule 31.
However, this approach is not always appropriate. Therefore, it is important to consider whether such a determination is fair in cases involving allegations which must be proved to the criminal standard of proof. This issue arose in the recent appeals to the Upper Tribunal in the following three cases:
The Tribunal in all three cases made a paper determination without a hearing. However, the cases concerned matters which were required to be proven beyond reasonable doubt to the criminal standard of proof. Therefore, the question that arose on appeal was whether a paper determination was appropriate in these cases.
Brief Background to the cases
Raza v Bradford Metropolitan District Council
The case of Raza v Bradford Metropolitan District Council concerned the imposition of a civil penalty on the landlord due to alleged breaches of HMO management regulations under section 234 of the Housing Act 2004. The Council imposed a civil penalty in the sum of £25,000. The landlord appealed the civil penalty to the Tribunal.
In the appeal application to the Tribunal, the landlord consented to the appeal being determined on papers without the need for a hearing. The Tribunal did list a hearing, but this was adjourned, and later a paper determination was made. The Tribunal considered the written evidence produced in the matter and concluded that it was satisfied beyond reasonable doubt that the landlord had committed an offence under section 234 of the Housing Act 2004. The landlord was ordered to pay the civil penalty of £25,000.
Ahmed & Ahmed v Ryan
This case concerned a rent repayment order application made by the tenant in respect of an unlicensed HMO. The tenant applied for repayment of 12 months’ rent for the landlord’s failure to licence the property. The Tribunal informed the parties that the application would be determined without a hearing unless either party objected. However, neither party objected, nor did they confirm that they would be content for the matter to proceed on papers. The Tribunal considered the written evidence and made a rent repayment order of £4340.00.
Rendall v Vela
This case again concerned a rent repayment order application made by the tenant in respect of an unlicensed HMO during the period the tenant was occupying. The Tribunal wrote to the parties notifying them that the application would be determined on papers unless a hearing was requested by either party. However, no request for a hearing was made. The Tribunal considered the written evidence again and concluded that it was satisfied beyond reasonable doubt that an offence of managing or being in control of an unlicensed HMO during the relevant period had been committed. The Tribunal ordered the landlord to pay the tenant £4102.09.
Issue on Appeal
The landlords in all three cases sought permission to appeal for various reasons. However, the Upper Tribunal only granted permission to appeal on the issue whether a hearing should have been held.
Each of the three cases resulted in findings that the landlords had committed a criminal offence. However, there were also matters of factual disputes raised by the parties and the written evidence had not been tested in cross examination.
The Upper Tribunal held that the procedure adopted in these cases was unreliable and unfair as the landlords in these cases had not been given an opportunity to cross examine the witnesses and/or respond to any matters raised during cross examination. The Upper Tribunal set aside the decisions and remitted the cases to the Tribunal for a re-hearing in its entirety meaning that a new judge would consider the matters and decide if an offence had been committed and if so, what order should be made.
The Upper Tribunal reminded the First-tier Tribunal that it is for judges to consider whether a paper determination is acceptable and not just the parties to the case. It is the responsibility of the Tribunal to ensure fairness in its procedure and whilst litigants in person may consent to a procedure, they may not fully understand the implications of doing so. Therefore, it would be unfair to hold them to this agreement and the Tribunal should consider when it would be appropriate to hold a paper determination.
Cases involving factual disputes and offences which require the Tribunal to be satisfied to a criminal standard will not be appropriate for paper determinations. There must be an opportunity for such evidence to be tested in cross examination, so an oral hearing should take place.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
No comments