The Upper Tribunal has found that although the First-Tier Tribunal’s approach to a rental repayment claim was flawed ‘by reason of a serious procedural irregularity’, it was not in the interests of justice to set aside its decision.

The First-Tier Tribunal, property chamber, made a rent repayment order requiring landlord Michael Osagie to repay rent totalling £12,600 to his former tenants Kingsley Onwuka and Uyioghosa Leo Amadasan. It made that order after deciding to proceed with the hearing when Osagie failed to attend, as it was satisfied he was ‘properly notified of the hearing date’.

The FTT found Osagie had unlawfully deprived the respondents of their occupation of the property and had made deliberate efforts to interfere with the respondents’ peace and comfort. In finding the commission of the criminal offences by Osagie, the FTT had the power to make a rent repayment order, ‘which it did’, the Upper Tribunal judgment acknowledged.

Osagie appealed against the order for a number of reasons including that he was unaware of the hearing.

Sitting in the Upper Tribunal, lands chamber, Martin Rodger KC, deputy chamber president, said he took ‘the unusual course of requiring the judge and member who comprised the FTT panel at the hearing to provide their reasons for proceeding in the appellant’s absence’.

He said the ‘sole arguable ground of appeal’ - that the FTT had failed to consider the interests of justice by proceeding in the appellant’s absence - might have been based ‘on an inadvertent slip by the FTT in recording its decision to proceed with the hearing in his absence’.

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He added: ‘If the FTT had in fact considered whether it was in the interests of justice to proceed with the hearing but had simply omitted to say so or to provide its reasons for coming to that conclusion, that deficiency could be cured by the provision of reasons at a later date in response to a request from this Tribunal.

‘Unfortunately, the panel’s response to the tribunal’s request that they provide reasons for their decision made it necessary to grant permission to appeal.

‘Without even an acknowledgement of the relevant conditions, the FTT’s bald statement that it followed the rule is fatally contradicted by its confirmation that its full reasons were given in paragraph 3 of the decision and in the refusal of permission to appeal. Paragraphs 3 and 5 of the decision itself say nothing about the interests of justice; it was that omission which prompted the ground of appeal.’

It was ‘incontrovertible’ that there were grounds for making a rent repayment order in a substantial sum, as Osagie had acknowledged in a county court order that compensation was due to the respondents, the judgment said. It found ‘the only possible conclusion’ which could be drawn from the original hearing bundle was that Osagie had received notice of the hearing and passed it on to his former solicitors.

The judge said the admission recorded in the county court order meant there was ‘simply no possibility that the FTT would have reached a different conclusion about the commission of the two offences, and therefore about its jurisdiction to make a rent repayment order if Mr Osagie had attended and given evidence’.

He added: ‘In my judgment the interests of justice do not require that the FTT’s decision be set aside and redetermined. There was no jurisdictional obstacle to the making of the order, and the possibility that a lesser penalty might have been imposed was foregone by Mr Osagie when, for whatever reason, he and his solicitors failed to attend the hearing of which they had been given proper notice.

‘Although the FTT’s approach was flawed by reason of a serious procedural irregularity, the appeal is dismissed.’