In Osagie v Onwuka and Amadsun [2024] the Upper Tribunal (Lands Chamber) (UT) dismissed an appeal by a landlord who failed to attend a First Tier Tribunal (FTT) hearing.
Mr Osagie, the appellant landlord, did not attend an earlier hearing in the FTT in which the respondent tenants successfully obtained a rent repayment order. Despite Mr Osagie's solicitors being provided with the Notice of Hearing and filing a bundle on his behalf, Mr Osagie claimed to have been unaware of the hearing and he therefore sought permission to appeal to the UT.
Rule 34 of the Tribunal Procedure (First Tier Tribunal) (Property Chamber) Rules 2013 provides that the FTT can only proceed in the absence of a party if:
- It is satisfied that reasonable steps have been taken to notify the party of the hearing; and
-
It considers that it is in the interests of justice to proceed with the hearing.
The UT granted permission to appeal on the basis that the FTT (i) had not addressed whether it was in the interests of justice to proceed with making the rent repayment order in Mr Osagie's absence, and (ii) was unable to confirm this had been considered in response to an express request to provide reasons for its decision from the UT.
At the appeal hearing the UT noted that a serious procedural irregularity may amount to an error of law, but it is not every procedural irregularity, or every error of law which requires that the decision of a lower Tribunal be set aside.
In this case the UT was satisfied that (i) Mr Osagie, despite his claims to the contrary, had had notice of the FTT hearing, and (ii) in view of the facts, there was no possibility that the FTT would have decided it was not appropriate to grant a rent repayment order had Mr Osagie attended and given evidence.
The UT acknowledged that Mr Osagie may have been able to persuade the FTT to order repayment of a lesser sum had he been present but noted that there was no guarantee he would have been able to secure a better outcome and he gave up his chance to do this by not attending. As such, it was satisfied that the interests of justice did not require the FTT's decision to be set aside and, despite finding that the FTT's approach was flawed by reason of a serious procedural error, it dismissed Mr Osagie's appeal.
This decision is a reminder for parties to attend hearings of which they have been given notice or risk a decision being made in their absence which they are unable to have set aside or redetermined.
