Martin White v Sarah Brindley [2026] UKUT 184 (LC)

[2026] UKUT 184 (LC)Case Nos: LC-2025-775
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
AN APPEAL AGAINST A DECISION OF THE FIRST TIER (PROPERTY CHAMBER)
Ref: HAV/00ML/LSC/2025/0683
Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
MARTIN WHITEAppellantMISS SARAH BRINDLEYRespondent
8 May 2026
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT – SERVICE CHARGES – construction of lease – issue raised by the FTT when it was not in issue between the parties
199 New Church Road,Hove, East Sussex, BN3 4EDJudge Elizabeth CookeDetermination on written representations© CROWN COPYRIGHT 2026The following cases were referred to in this decision:Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185Regent Management Limited v Jones[2010 UKUT 369 (LC)Sovereign Network Homes v Hakobyan[2025] UKUT 115 (LC)

Introduction

[1]This is an appeal from a decision of the First-tier Tribunal in an application by the appellant landlord, Mr Martin White, on his application against the respondent tenant Ms Sarah Brindley for a determination about service charges. It is brought with permission from the FTT and has been decided under the Tribunal’s written representations procedure. Neither party has been legally represented.

The factual and legal background

[2]The appellant is the freehold owner of 199, New Church Road, Hove which is a semi-detached Edwardian property, converted in 1970 into two flats, a First Floor Flat (with access to a rear garden) and a Ground Floor Flat (with access to a front garden & rear patio), each flat having 2 bedrooms. The Respondent holds a long lease of the first floor flat, granted in 1970, which she acquired in 1995.[3]In May 2025 the appellant made an application to the FTT in its jurisdiction under section 27A of the Landlord and Tenant Act 1985 to determine whether service charges are payable under a lease and if so, in what amount, to whom and so on. The application related to the service charge for the year 2024-25. It explained that the service charge for the whole property (for the year) was £1,040.56, made up of a building insurance premium of £875.26 and a management fee of £165.30. Each of the two leaseholders was liable to pay 50% of the charge and therefore the payment demanded from the respondent was £520.28.[4]The FTT conducted a case management hearing on 1 October 2025, which the appellant attended and the respondent did not. The FTT indicated that the application could be determined on the papers without a hearing and the appellant agreed. On 10th October the FTT made an order directing the parties to provide “comment or evidence around the recoverability of the service charges being claimed under the contractual provisions contained within the Lease” (as the FTT put it in paragraph 8 of the decision now appealed). In its decision of 10 November 2025 the FTT recorded that neither party had made any comments on that point. It discussed the challenges raised by the respondent to the management charge and the insurance charge and rejected them. It found that the respondent was liable to pay the management charges as demanded, but was not liable to pay any insurance costs because she was not required by the lease to pay them.[5]The decision about insurance will have come as a surprise to the parties, for the following reasons.[6]First, the respondent had filed a statement of case in which she complained that the property had been neglected and underinsured. She complained that documents she had requested had not been disclosed, and that the landlord had failed to make a claim on an occasion when the property had been accidentally damaged. There is no hint of a suggestion that she might not be liable under the lease to pay half the cost of insuring the building.[7]Furthermore, these were not the first proceedings between the parties. In the bundle presented to the FTT the appellant included the FTT’s own judgment dated 12 February 2020, in which it had determined whether service charges were payable for the years 2011 to 2018. In each year a sum representing half the cost of insuring the building was demanded of the respondent. She contested it on the ground that the cost was not reasonably incurred; the FTT decided that the amount demanded was reasonable and payable in each of the seven service charge years in issue. The FTT was aware of the 2020 decision, and observed (at paragraph 35 of the decision now appealed) that on that occasion the FTT had not been asked to interpret the terms of the lease.[8]Accordingly, in deciding that the lease did not require the respondent to pay for insurance the FTT was raising an argument that the respondent had not made. The appellant sought permission to appeal on the grounds(a) that the FTT had misconstrued the lease,(b) that the decision was inconsistent with the 2020 decision, with a 2006 decision, and with two county court decisions and(c) that “the Respondent has not presented to the court any defence concerning the issue of payment of the building insurance, …, however, independently [the FTT] has introduced into court an interpretation of the lease, as such, the Judge has not acted impartially towards the Applicant and in effect has become an advocate for the Respondent. The Applicant regards this determination process as unfair.” The FTT granted permission to appeal only on the ground that that its decision was inconsistent with previous decisions, recognising that it was “unsatisfactory” to have contradictory decisions from the same tribunal; it refused permission on the other two grounds.[9]On the third ground the FTT said: “27. ,,, It is not correct to suggest that simply because neither party has raised an argument around how the lease operates, it is not for the Tribunal to then assess how the lease operates outside the limited scope of the submissions of the parties.[28]In any event, the Tribunal gave the parties the opportunity to raise submissions on how the recoverability of the costs sought and the operation of the lease operated. …[29]The Tribunal has sympathy with the Applicant given the decision is contrary to previous Tribunal findings but it is wholly wrong to suggest that the conduct of the Tribunal and the process of determination is unfair as a result of the Tribunal’s findings on the operation of the lease.”

The appeal

[10]The appellant renews his application for permission to appeal on the two grounds on which the FTT refused permission. I grant permission on the third ground, that it was unfair and improper for the FTT to decide that the insurance charge was not payable on the basis of a point that the Respondent had not raised. As will be seen, there is no need for the Tribunal to consider the other two grounds because the appellant succeeds on this ground.[11]As the FTT acknowledged, the respondent did not challenge the insurance charge on the basis that the lease did not permit its recovery. She did not do so even when the FTT expressly invited her to raise that challenge.[12]The principles to be followed when the FTT raises a point on its own initiative are well-known.[13]In Regent Management Limited v Jones [2010 UKUT 369 (LC) the Tribunal (HHJ Mole QC) said this in the context of service charge disputes: “The [FTT] is perfectly entitled, as an expert tribunal, to raise matters of its own volition. Indeed it is an honourable part of its function, given that part of the purpose of the legislation is to protect tenants from unreasonable charges and the tenants, who may not be experts, may have no more than a vague and unfocussed feeling that they have been charged too much."

“The [FTT] is perfectly entitled, as an expert tribunal, to raise matters of its own volition. Indeed it is an honourable part of its function, given that part of the purpose of the legislation is to

[14]However, the proceedings are nevertheless adversarial. In Sovereign Network Homes v Hakobyan [2025] UKUT 115 (LC) the Tribunal (the President, Mr Justice Edwin Johnson at paragraph 120) explained that the FTT is entitled to raise a new point which the parties have not raised in three circumstances: when it is a matter of jurisdiction, where the statute requires it to address a matter that the parties have not raised, or to “explore the scope of a party’s case by way of clarification” (quoting from Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185).[15]When the FTT has properly raised a new point it must proceed fairly. As the President put it in Sovereign Network at paragraph 195(4):
"In raising a new point the FTT should not descend into the arena or give the appearance of descending into the arena. The role of the FTT is limited to raising the new point, assuming that it is appropriate to raise the point at all. Thereafter, it is for the relevant party, to whose advantage the new point may be, to decide whether to pursue the new point."
[16]The President went on to explain that if the relevant party decides to pursue the new point then it must be pleaded, and the first question will be whether the relevant party can amend its statement of case in order to add the new point; the tribunal must hear from both parties as to whether that should be allowed. If it is allowed then it is for the party now taking the point to argue it and for the other party to respond to it. In Sovereign Network the FTT followed this procedure, and exercised its discretion to allow the relevant party to plead the new point; it was for the Tribunal on appeal to decide whether the FTT had been wrong to raise the new point or had been wrong to allow the amendment. The President observed (at paragraph 125) that for the appeal to succeed it was not sufficient for him to disagree with the FTT’s decision; he must be persuaded not merely that the FTT’s decision was one that he “one which no FTT, properly directing itself and in the exercise of its discretion and judgment, could have made” (paragraph 125)[17]Sovereign Network was an appeal from a decision of the FTT about service charges, The tenant had challenged the reasonableness of the charges. The FTT itself raised the question whether the demands were payable, on the basis that they had not been served in accordance with the requirements of the lease. In the appeal the Tribunal found that the FTT had been wrong to raise that issue. It did not fall within any of the three circumstances summarised above; in particular it fell well outside the scope of the tenant’s case and could not be regarded as a clarification of it.[18]In the same way in the present case, contractual liability was not in issue in the parties’ pleaded cases. There was no need and no possible reason to seek to clarify them by inviting the parties to pursue the point. In doing so the FTT acted outside the bounds of its discretion.[19]Furthermore, the tenant did not choose to pursue the point at the FTT’s invitation. It is clear from the President’s analysis in Sovereign Network that that should have been the end of the matter. The FTT also exceeded the bounds of its discretion in proceeding to decide the case on basis of an issue that the respondent had chosen not to pursue when invited to do so. In doing so it acted unfairly and, as the appellant said, descended into the arena and became an advocate for the tenant. I make it very clear that this was not a matter of personal bias. The FTT acted with the best of intentions. But in the context of an adversarial system what it did was unfair.[20]The FTT’s decision on the insurance premiums is set aside. I substitute the Tribunal’s decision that they are payable in full on the basis that the FTT analysed the challenges that the respondent did raise, and dismissed them.[21]The FTT also decided that the respondent should reimburse half of the application fee (of £114) that the appellant had paid in the FTT, on the basis that he had succeeded on one of two issues and failed on the other. In light of the outcome of the appeal I set aside that decision and substitute the Tribunal’s decision that the respondent should pay the applicant the whole of the £114 fee, within 28 days of this decision.[22]I have said nothing about the ground on which the FTT gave permission, as it is unnecessary to do so. I have said nothing about the further ground on which it refused permission, namely the construction of the lease, and indeed I have not explained why the FTT made the decision it did about that construction. In light of what I have decided above it is not necessary for that ground of appeal to be determined and I do not do so. It was not an issue before the FTT and it is not appropriate for this Tribunal to decide or even discuss it in the appeal.

Cited in 1 later judgment