The jurisdiction to make an RO under s123 of the BSA is vested solely in the FTT. One of the features of the FTT is that it is an “expert” tribunal whose panel members have expertise on the substantive issues. Because of its expertise and because it frequently deals with litigants in person, the FTT is a very proactive tribunal.
The present case gives clarity as to what an application for an RO is. It is also an example of where the FTT exceeded its powers.
Relevant Facts
The case concerned two buildings which join around a central courtyard. The landlord had procured a FRAEW, which advised that the timber cladding and insulation to the external walls around the courtyard needed to be removed and replaced with non-combustible cladding.
The tenants were unhappy with the pace of remediation and applied for an RO against the landlord.
At what was meant to be the final hearing, the FTT, through their expert member, raised a number of issues which were not before it, including concerns that there were a number of potential other fire safety issues (“the additional items”).
It then adjourned the hearing and ordered the landlord to produce expert evidence on those items.
At the adjourned hearing, the FTT heard from the landlord’s experts, who gave evidence, consistent with the FRAEW, that the additional items did not give rise to any further defects or remediation works. The expert evidence was never materially challenged.
The Decision of the FTT
The FTT nevertheless decided that the additional items were relevant defects that needed remediation. The decision also contained six pages explaining why the development was a higher-risk building even though the FTT accepted that this issue was outside their jurisdiction and did not form any part of their operative decision.
The landlord appealed to the UT.
The Decision of the UT
The UT made clear that an application for an RO does not involve or require the FTT to carry a building safety audit; the FTT’s role is to adjudicate on the issues that have been raised before it. That is consistent with our adversarial system and the fact that an application for an RO must identify the defects to the building for which an order is sought: see regulation 2(3)(c) of the Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022.
However, the UT recognised that there are circumstances in which the FTT may raise issues of its own initiative.
Before it does so, the FTT must consider, as a matter of discretion, whether or not to raise those issues with the parties in accordance with the guidance given in Sovereign Network Homes v Hakobyan [2025] UKUT 115 (LC).
The types of case where it will be appropriate to do so are:
- where the issue goes to the FTT’s jurisdiction;
- where the rule being applied expressly requires a particular issue that has not been addressed by the parties to be considered; or
- in order to clarify a party’s case.
Another example in the context of ROs is where the Tribunal is concerned that there might be an obviously dangerous defect, although the UT recognised that the likelihood of that happening should be “vanishingly small”.
Once the FTT decides that it is appropriate to raise a new issue, it must follow a fair procedure. In particular, the FTT must raise the point and leave it to the parties to decide whether or not to amend their case.
Thus, the UT decided that the FTT should never have raised the additional items because: they had not been raised by either party; the parties’ cases were clear; the additional items had already been addressed by the FRAEW; and they were not the sort of matters which it would normally be appropriate to raise.
The UT also found that the procedure which the FTT adopted, having raised the additional items, was unfair, in particular because the applicants were not given the opportunity to amend or serve evidence; and the onus was put on the landlord to produce evidence.
As for the fact that the FTT had made findings which were unsupported by the evidence, the UT identified two broad principles.
First, the FTT must decide the case by reference to the evidence before it. That does not mean that expert evidence has to be accepted but there do have to be reasons in the evidence not to accept it. But, as the UT said: “Why the FTT disagreed with that evidence we do not know”.
Secondly, the FTT cannot use its expertise and form its own opinion in a way that is contrary to the evidence. As the UT said “expertise is not evidence, and the possession of expert knowledge does not enable the FTT to ignore evidence without giving reasons for doing so.” However, if the evidence before the tribunal is contrary to the tribunal’s knowledge and experience, the tribunal ought to draw to the attention of the witnesses the experience which seems to them to suggest that the evidence given is wrong, and the tribunal ought not to prefer their own knowledge or experience without giving the witnesses an opportunity to deal with it. But as the UT found: “We really have no idea why the panel’s expertise led it to contrary conclusions; nor have the parties.”
The UT then made clear that the FTT’s decision was not only unfair but also substantively wrong and set the FTT’s decision aside, also stating that the FTT ought to have reviewed its decision so as to remove the six pages about the development being a higher-risk building.
Conclusion
The basic principles of natural justice apply to proceedings in the FTT as much as they do to any other court or tribunal. However, anyone appearing before the FTT needs to be prepared for the fact that it is a proactive court.
Jonathan Selby KC has appeared in the Court of Appeal, High Court, Upper Tribunal and First-Tier Tribunal on building safety matters. He was Special Legal Counsel to the Secretary of State for the DLUHC – Building Safety from 2023 to 2025 and is currently a member of the Building Safety Working Group.
