Robert Vernon v Orbit Housing Association [2026] UKUT 19 (LC)

[2026] UKUT 19 (LC)Case Nos: LC-2025-239
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)
Ref: BIR/44UE/LIS/2023/0053
Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
ROBERT VERNONAppellantORBIT HOUSING ASSOCIATIONRespondent
23 January 2026
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT – SERVICE CHARGES – issue estoppel – evidence
Flat 86,Rosalind Court,Brunel Way,Stratford Upon AvonCV37 6ELJudge Elizabeth Cooke13 January 2026Mr Justin Bates KC and Ms Poppy Kemp for appellant, instructed through Advocate (formerly known as the Bar Pro Bono Unit)Mr David Nuttall and Mr Harry Marriott for respondent, instructed by Shakespeare Martineau© CROWN COPYRIGHT 2026The following cases were referred to in this decision:Arnold v National Westminster Bank plc[1991] 2 AC 93Hemmise v London Borough of Tower Hamlets[2016] UKUT 109 (LC)Kirin-Amgen v Boehringer Mannheim GmbH[1997] FSR 289Mills v Cooper[1967] 2 QB 459Orbit Housing Association Limited v Vernon[2023] UKUT 156 (LC)Skatteforvaltningen v MCML Ltd[2025] EWCA Civ 371Spens v IRC[1970] 1 WLR 1173Thoday v Thoday[1964] 2 WLR 371Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd[2013] UKSC 46Date 2026-01-23

Introduction

[1]The appellant Mr Vernon appeals the decision of the First-tier Tribunal that a variable service charge demanded of him by the respondent Orbit Housing Association Limited (“Orbit”) was reasonable and therefore payable. Mr Vernon has an assured tenancy of a flat in a sheltered housing block reserved for the over-55s, and the service charge in issue is described in his lease as a “Scheme Based Support Charge”, or SBSC. This is not the first time the Tribunal has made a decision about the SBSC; see Orbit Housing Association Limited v Vernon [2023] UKUT 156 (LC), to which I shall refer as “the 2023 decision”.[2]The appellant has been represented by Mr Justin Bates KC and Ms Poppy Kemp, both generously acting pro bono, and the respondent by Mr David Nuttall and Mr Harry Marriott; I am grateful to them all.

The legal context

[3]The legal context can be simply stated. Section 27A of the Landlord and Tenant Act 1985 gives the FTT jurisdiction to decide whether service charges are payable under a lease, and if so in what sum, when and to whom; section 19 of the same Act provides that service charges are not payable unless the cost to which they relate was reasonably incurred. Where they are demanded in advance, they are not payable unless they are reasonable.[4]The FTT’s jurisdiction under section 27A relates only to service charges as defined by section 18 of the 1985 Act: “In the following provisions of this Act “service charge” means an amount payable by a tenant of a dwelling as part of or in addition to the rent—(a) which is payable, directly or indirectly, for services, repairs, maintenance, improvements or insurance or the landlord's costs of management, and(b) the whole or part of which varies or may vary according to the relevant costs. (a) which is payable, directly or indirectly, for services, repairs, maintenance, improvements or insurance or the landlord's costs of management, and (b) the whole or part of which varies or may vary according to the relevant costs.[5]Such service charges are known as variable service charges.

The factual background to the 2023 decision and the present appeal

[6]It will be important in considering the present appeal to understand the background to the 2023 decision.[7]Mr Vernon, the appellant, took on an assured tenancy of 86 Rosalind Court in April 2021. His tenancy agreement requires him to pay three sums of money: the rent, a “weekly variable service charge” and the SBSC. The weekly variable service charge relates to maintenance and services of the usual kind in a block of flats and has not been the subject of proceedings between the parties. The tenancy agreement does not say what the SBSC is for, although the label “support charge” obviously provides a clue. The agreement states that the SBSC is £18 per week, and provides (at clause 11.3(ii)) that it can be varied on one month’s notice “on the basis of reasonable costs incurred during the previous year and estimates for future years”. Since 2021 it has been varied, and a lower sum has been demanded.[8]Mr Vernon applied to the FTT in 2022 for a determination as to whether the SBSC was payable in the service charge years 2021/22 and 2022/23. The FTT heard evidence from Mr Vernon, and from Ms Jones, described as an officer of the respondent. She did not make a witness statement and so all we know about her evidence is the FTT’s summary of it. She explained that the SBSC was a charge for services provided at night. The FTT said at paragraph 34 of its decision (“the FTT’s 2022 decision”) that her evidence was:
“… that the night staff were provided by a third party Care Provider … and that it was her understanding that they delivered planned care calls for those residents with Service Agreements, assisted those who triggered the Lifeline system if they had a fall, provided unplanned extra care for those who required it and did general walk arounds and security checks of the scheme.”
[9]The FTT made the following finding of fact at its paragraph 37: “From the evidence before the Tribunal, it is determined that the Scheme Based Support Charge is a charge for the provision of overnight personalised care for those residents who have a separate Service Agreement in place. It is not a service provided for the benefit of all residents. It is not provided in connection with occupation of Rosalind Court. It is a personal care service which some residents at Rosalind Court happen to subscribe to by way of separate Service Agreements, which are personalised to meet their additional care needs”.[10]Following a discussion of an “activities charge” which was not in issue in the later appeal, the FTT went back to the SBSC at its paragraph 57, and reiterated its finding that it was a charge only for overnight personal care services for residents who had entered into a separate Support Agreement. In its paragraph 61 the FTT said that in view of that, the SBSC was not a charge for “services, repairs, maintenance, improvements or insurance” as specified in section 18 of the Landlord and Tenant Act 1985 and was therefore not a service charge within the meaning of that section. So the FTT had no jurisdiction under section 27A of that Act.[11]Furthermore, the FTT at its paragraph 62 found that ‘in any event’ even if the SBSC was a service charge the cost was not reasonably incurred because it was unreasonable to incur a cost on behalf of all residents in order to provide a service only to those with a Support Agreement.[12]On appeal by Orbit the Upper Tribunal in the 2023 decision made three findings; first, that Mr Vernon was contractually obliged by his lease to pay the SBSC; second, that it was a variable service charge within the meaning of section 18 of the 1985 Act, so that the FTT did have jurisdiction to make a determination under section 27A (I need not explain those two findings as they have not been challenged and are not in issue in this appeal); third, that the finding that no services were provided to Mr Vernon in return for the SBSC was open to the FTT on the basis of the evidence it heard. As a result the Tribunal upheld the FTT’s finding that the cost to which the SBSC related was not reasonably incurred (or, insofar as it was an advance charge, the charge was not reasonable) so that the SBSC was not payable for 2021/22 and 2022/23.[13]As a result, Orbit refunded Mr Vernon’s SBSC for the two years in issue in the 2023 decision.[14]It then charged him an SBSC in 2023/24 and the following year, and Mr Vernon again challenged the charges in the FTT. The FTT in April 2025 (“the FTT’s 2025 decision”) found that in fact services were provided to Mr Vernon for which the SBSC was a payment, and furthermore that the charge was a reasonable charge for those services and was therefore payable.[15]The FTT in 2025 had evidence that was not provided to it in 2022. Orbit produced its agreement with the local planning authority, made under section 106 of the Town and Country Planning Act 1990, which obliged it to provide an overnight care service for all residents. It produced its contract with Understanding Care (Extra Care) Limited, trading as Unique Senior Care (“the Unique Contract”), which required it to provide overnight emergency support to all the 102 residents at Rosalind Court. It filed a witness statement by Mr Tristan Hopper, who gave evidence that the Unique nights staff did the following, for all residents:
“a. Answering emergency calls, such as when an emergency cord is pulled; b. Summoning medical assistance if required; c. Supporting residents whilst waiting for further assistance to attend; d. Alerting next of kin in any emergency; e. Undertaking security checks; f. Reporting any emergency building issues.”
[16]Mr Hopper produced handover reports from the night staff in which they set out what they had done.[17]Mr Vernon’s evidence, as in the 2022 proceedings, was that nothing was provided for him. He had disconnected his emergency cord and does not want that service; he does not want the night staff to summon medical assistance for him or to contact his next of kin and said that the night staff did not contact the emergency services although they would let them into the building; residents reported building maintenance issues themselves; the night staff were not trained to carry out security checks.[18]The FTT accepted Mr Hopper’s evidence. It said:
“It is clear (and we expressly find), that the Unique employee provides services for the benefit of the whole of Rosalind Court (whether a resident wishes to receive those services or not).”
[19]The FTT further found that the amount charged under the SBSC was a reasonable one for the services available, on the basis of the rates paid to Unique and then charged to the residents. There was some uncertainty about the precise amount payable by residents, and the FTT gave directions about that, but its clear finding was that the amount paid to Unique was a cost reasonably incurred by Orbit.[20]Mr Vernon now appeals the FTT 2025 decision, with the permission of the Tribunal, on the ground that the FTT was not entitled to make a decision that was inconsistent with the 2023 decision. Mr Vernon drafted his grounds of appeal himself; Mr Bates KC and Ms Kemp put it more technically and base their argument on issue estoppel.[21]Issue estoppel was described In Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 by Lord Sumption JSC at paragraph 17 as:
“… the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 State Tr 355..”
[22]In other words, once a court has decided an issue that was an essential element in a party’s cause of action or defence, the parties to that decision cannot re-litigate that issue. Issue estoppel has recently been the subject of an authoritative analysis in the Court of Appeal’s decision in Skatteforvaltningen v MCML Ltd [2025] EWCA Civ 371.[23]Mr Nuttall and Mr Marriott for Orbit suggested that issue estoppel had not been argued in the FTT and was outside the scope of the ground on which permission had been granted, although they sensibly took a neutral stance as to whether the Tribunal should allow the argument. I regard the issue estoppel argument as being plainly within the ground on which permission to appeal was granted, being simply the translation by lawyers into legal terms of the point Mr Vernon was making.[24]There is no appeal from the FTT’s finding of fact in its 2025 decision that services are provided for Mr Vernon (whether or not he wants them), nor from its judgment that the cost is reasonable. Accordingly, if Mr Vernon fails on the issue estoppel point he will have to pay the SBSC.

The arguments in the appeal

[25]I am going to consider the arguments in the appeal in two parts. First, I address the appellant’s case as it is put in counsel’s skeleton argument. Second, I explain and discuss the appellant’s case as presented by Mr Bates KC at the hearing, where it seemed to me to have, at the very least, a different emphasis.

The issue estoppel argument

[26]Mr Bates KC and Ms Kemp in their skeleton argument put the appellant’s case like this:
“2. In summary: Orbit lost the previous service charge dispute in the FTT/UT on the basis that the SBSC was not reasonable under s.19 LTA 1985. It was not reasonable because the FTT/UT could not identify any benefit Mr Vernon received in respect of the services allegedly provided. That was a finding which was not limited to a particular period of time: it is a static fact. Unless Orbit could have demonstrated in the second FTT case that there was “further material” which showed that the previous decisions were incorrect and that material could not have been adduced by reasonable diligence in the previous proceedings, then the finding as to reasonableness applied equally to the subsequent service charge years.”
[27]The skeleton argument goes on to set out the factual background; it describes the FTT 2022 decision as follows:
“10. The FTT had found that the £18 p/w charge was not reasonable. That was because it was impossible to identify any benefit that Mr Vernon derived from the service (whatever it actually was) (FTT, para.62, UT, para.50). Thus, for the years 2021/22 and 2022/23, although the scheme-based support charge was contractually due, nothing was actually payable (UT, para.58).”
[28]The skeleton argument then refers to Skatteforvaltningen, where the Court of Appeal approved what Diplock LJ had said in Mills v Cooper [1967] 2 QB 459 at [134]:
“a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.”
[29]Accordingly, it is argued, since the FTT in 2022 found that the charge was not reasonable because nothing was provided to Mr Vernon, the FTT in 2025 could not have reached a different decision unless(a) Orbit could produce further material which showed that the previous decision was incorrect and(b) that material could not with reasonable diligence have been adduced in the 2022 proceedings. And that exception was not met; the section 106 agreement and the Unique Contract could – as is acknowledged on Orbit’s behalf – have been produced in 2022. And Mr Hopper’s evidence just set out in more detail what the FTT in 2022 was told about what the night staff did, as can be seen in its summary of Ms Jones’ evidence (see paragraph 8 above). The landlord cannot now have a second bite of the cherry; the FTT’s 2022 decision “was not limited to a particular time period”. Its finding was “detached from a particular time; it describes a state of affairs”, and there is no new material available to contradict that finding that could not have been produced to it in 2022.[30]In response Mr Nuttall and Mr Marriott argue that the FTT 2022 decision was about the service charge years 2021/22 and 2022/23, and the FTT 2025 decision was about the next two years. The 2022 decision “starts and ends with the service periods under challenge”. Expanding on that, they point out that the “issue” as to which an estoppel can arise must be one which is essential to the decision on the cause of action. In their skeleton argument Mr Nuttall and Mr Marriott refer to dicta of Lord Diplock in Thoday v Thoday [1964] 2 WLR 371 at 385, to Spens v IRC [1970] 1 WLR 1173 at 1184, and to the following remarks of Aldous LJ in Kirin-Amgen v Boehringer Mannheim GmbH [1997] FSR 289 at 300:
“Even when in one way or another it can be demonstrated that the court has expressly determined, in the earlier proceeding, the same issue as is now in dispute, an issue estoppel will not by any means always be the result. Only determinations which are necessary to the decision—which are fundamental to it and without which it cannot stand—will found an issue estoppel. Other determinations, without which it would still be possible for the decision to stand, however definite be the language in which they are expressed, cannot support an issue estoppel between the parties between whom they were pronounced.”
[31]Thus the Tribunal’s interpretation of Mr Vernon’s tenancy agreement in the 2022 decision cannot, says the respondent, be challenged as between these two parties; there is an issue estoppel as to the finding that Mr Vernon is contractually obliged to pay the SBSC. But the FTT’s findings of fact about the service charge have to be “stripped down to the minimum necessary to make out the cause of action.” The FTT’s decision in 2022 that no services were provided to Mr Vernon in return to the SBSC in the two years in question does not prevent a different finding in respect of later years. And if the FTT did find that the SBSC could only ever, in any service charge year, benefit Mr Vernon if he had a Support Agreement, that finding was extraneous to what it actually decided, which was that no services were provided for him in the two years in dispute in 2022.[32]That being the case, it is argued, there is no need for Orbit to show that it has adduced new material that could not have been produced in 2022; there is no issue estoppel because the issue in 2025 was a new one: were services provided to Mr Vernon in 2023/24 and 2024/25?[33]In any event, it is argued that an exception to issue estoppel would arise. A number of cases were referred to; the one that seems to me to be relevant is Hemmise v London Borough of Tower Hamlets [2016] UKUT 109 (LC).[34]In Hemmise the dispute was about whether certain service charges were payable. They had been demanded in respect of an estate in which the tenant had a flat in a block. In an earlier decision the FTT had misconstrued the lease and found that service charges were payable in respect of expenditure on the tenant’s block but not in relation to costs incurred in respect of the estate as a whole. In the decision being appealed it was found that the lease did allow for estate charges. The Tribunal (HHJ Behrens) considered the House of Lords’ decision in Arnold v National Westminster Bank plc [1991] 2 AC 93. The question in that case was whether, in operating a rent review clause under a lease, the tenants were bound by the construction given to the same clause in earlier litigation between the same parties over the previous rent review. The earlier construction was wrong, and their lordships took the view that the judge in the later decision was not prevented by an issue estoppel from construing the lease correctly. Although the elements of issue estoppel were made out, the earlier decision was plainly wrong, and it would be inequitable for the parties to be bound for the duration of the lease by that incorrect construction. In similar circumstances in Hemmise the Tribunal found that the FTT was entitled to construe the lease correctly and find that an estate service charge was payable, despite the earlier decision to the contrary.[35]In the same way, Mr Nuttall argued that if the FTT did make a finding for all time in its 2022 decision, that finding was wrong and it would be inequitable for Orbit to have to live with that incorrect decision for the potentially very long duration of Mr Vernon’s assured tenancy.

The issue estoppel argument: discussion and conclusion

[36]As both parties have pointed out, it is important to be clear exactly what the FTT in 2022 decided. In particular, did it - as is argued for Mr Vernon - make a finding which was "a static fact" which remains true for the future? Or did it - as is argued for Orbit - make a finding about "the facts on the ground" (as Mr Nuttall put it) in the years in question only?[37]In my judgment the FTT in 2022 made a finding only about the facts as they stood in the two years in question. That was inevitably the case because the evidence it heard was limited to what was actually happening; there is no need for its findings to be “stripped down to the minimum necessary” as Mr Nuttall put it, because all it found was what was happening on the ground. It did not find that “the SBSC could only ever, in any service charge year, benefit Mr Vernon if he had a Support Agreement”. It did not make any findings about the contractual position. The FTT was aware, of course, that Orbit had a contract with Unique, and it seems that the section 106 agreement was mentioned. But neither agreement was in evidence and the FTT was not asked by either party to look at the terms on which Unique was working or at what was contractually required of it; Orbit did not produce the contract and Mr Vernon did not ask it to do so. It was therefore not in a position to say anything about the contractual position, even though it was aware there was a contract, and it did not purport to do so. It simply heard evidence of fact about the services provided by Unique, and it reached a conclusion that no services had been or were being provided to Mr Vernon in the two years in question. I can find nothing in the FTT’s 2022 decision that indicates that it intended to make a decision about a “static fact” or to say that Unique’s contractual arrangements were such that no service was or could in the future be provided to Mr Vernon.[38]It is important to appreciate that the FTT did not make a finding that certain services were provided or available to Mr Vernon but that he derived no benefit from them. The FTT did not say anything that could be construed as a finding in those terms. To that extent I do not think that the summary of what the FTT decided, at paragraphs 2 and 10 of Mr Bates KC’s skeleton argument (see paragraphs 26 and 27 above) is accurate. What the FTT found at paragraphs 58 to 61 was that no services were provided; it did not say that “the FTT/UT could not identify any benefit Mr Vernon received in respect of the services allegedly provided” (skeleton paragraph 2), nor that “it was impossible to identify any benefit that Mr Vernon derived from the service (whatever it actually was)” (skeleton paragraph 10) or anything to that effect. Likewise the Tribunal at paragraph 50 of the 2023 decision expressed its understanding of the FTT’s decision as follows:
“The FTT decided this point on the basis of the evidence it heard about the services provided. Having determined that it could not identify any services provided to Mr Vernon in return for the SBSC it determined at its paragraph 62 (see paragraph 26 above) that it was not reasonable for the landlord to incur costs on behalf of all residents in order to provide services only for those with a Support Agreement, and therefore that the charges were not reasonable.”
[39]The FTT’s finding was not that no benefit was derived from the services provided; it was that no services were being provided. That was its finding even though it appears from the FTT’s summary of Ms Jones’ evidence that she asserted that Unique delivered unplanned care for residents who required it and carried out security checks – the latter of which as Mr Bates KC pointed out, could hardly have been for the benefit of only a sub-set of the residents. Nevertheless when the FTT came to set out its findings at paragraph 37, and then again at 58 to 62, it did not make any mention of services for all residents. Either Ms Jones said that certain services were provided for all residents, and the FTT rejected that evidence because it accepted what Mr Vernon said instead, or Ms Jones’ evidence did not suggest that those services were provided for all the residents – we do not know because we have only the FTT’s summary of what she said. Mr Nuttall argued that Ms Jones’ evidence must have been that unplanned care was provided for any resident who required it. Nevertheless the FTT found that the only services provided by Unique were personal care services for residents with a Support Agreement. The Tribunal, in the appeal, faced with the difficulty that it did not have either a witness statement from Ms Jones or a transcript of what she said, concluded:
“Without written evidence from Ms Jones it is impossible to say that the FTT drew an irrational or impossible conclusion from her evidence. When her evidence is taken together with Mr Vernon’s evidence it is clear that the FTT reached a conclusion that was open to it on the evidence.”
[40]The evidence in 2025 is very different; the FTT had the benefit of evidence about the contractual terms under which Unique operates, the work records showing what Unique was actually doing each night, and Mr Hopper’s clear evidence - set out in a witness statement and confirmed under cross-examination – that Unique does provide services for all residents, including answering alarm calls, supporting residents in an emergency, contacting relatives, making security checks, and responding to buildings issues at night. There is no suggestion that those findings were not open to the FTT on the evidence it heard in 2025. And in my judgment no issue estoppel arises. The FTT in its 2022 decision made a finding of fact about what was happening in 2021/22 and 2022/23. There was nothing to prevent it reaching a different conclusion about the facts in 2023/24 and 2024/25.[41]On that basis, there is no need to consider whether the exception in Hemmise arises. If there were, and in any event in case I am wrong about the extent of the FTT’s findings in 2022, I would have no hesitation in finding that that exception should apply so as to permit the FTT in 2025 to make the decision it did. The 2022 decision was plainly wrong, because the contractual arrangements with Unique require it to provide a service for all residents and the factual evidence heard by the FTT in 2025 showed that it was doing so. Mr Bates KC suggested that the FTT’s 2022 decision was not wrong, because it correctly found that Mr Vernon was getting no benefit from the services provided by Unique – but as discussed above that was not the FTT’s decision; it found that no services were being provided for Mr Vernon. The FTT has now found that services are provided for Mr Vernon (although he has had the good fortune not to need them yet) and the charge made to him for their availability has been found to be reasonable. It would be wrong for Orbit to be stuck with a position found by the FTT in 2022 which does not reflect the true position found by it in 2025 on the basis of clear and compelling evidence. Mr Vernon entered into a tenancy in a block providing sheltered housing and it would be wrong for him to be entitled to remain in that sheltered situation without making what the FTT found to be a reasonable payment for the service that is provided for him.[42]The appeal fails on the argument presented in the appellant’s skeleton argument.

The appellant’s argument at the hearing

[43]At the hearing the argument presented by Mr Bates KC had, at the very least, a different emphasis from that in his skeleton argument. He asserted that in 2022 Orbit’s case had been that no services were provided for Mr Vernon. He said that the evidence presented for Orbit in 2022 was “the polar opposite of what they say now”. Moreover, Orbit’s position is clearly stated in its 2025 statement of case in the FTT: nothing has changed. The facts remain the same, but the landlord’s case has changed and its evidence is completely different, although all the evidence it relies upon now could have been produced in 2022. It is trying to have a second bite at the same cherry, and cannot do so – at least, not without waiving privilege and explaining why its case has changed.[44]Mr Bates KC’s argument at the hearing depends upon the proposition that Orbit’s case in the FTT was that no services were provided for Mr Vernon. Orbit’s case, he argued, was expressed in Ms Jones’ evidence, and her evidence – summarised at the FTT’s paragraph 34 – was that no services were provided for Mr Vernon. When the FTT found that nothing was provided to him, that was consistent with and in agreement with the landlord’s case.[45]I am not sure that that is the same argument as was made in the skeleton argument. It was not suggested there that the FTT’s 2022 decision was consistent with Orbit’s case or with the evidence given for Orbit. Be that as it may, the argument cannot succeed. Although there is no copy of Orbit’s 2022 statement of case in the appeal bundle, the FTT explained what Orbit’s case was at its paragraph 39:
“[Orbit]’s case is that the Scheme Based Support Charge is a service that they provide which relates to the well-being of residents.”
[46]In the 2023 decision the Tribunal summarised Orbit’s statement of case:
“[Orbit] filed a statement of case in response, in which it said that the SBSC “is a provided service which relates to the well-being of residents and covers the overnight care service on site at Rosalind Court every night. The scheme is manned from 10pm until 7 am to answer any emergency lifeline calls check security of the building and report any emergency repairs in case of floods etc.”
[47]So although Orbit’s pleaded case in the 2022 proceedings is not in the appeal bundle in 2026, we have a record of what it said in its statement of case which was, as now, that services were provided for residents, not just for those with Support Agreements.[48]As to the evidence led by Orbit, Mr Bates KC’s argument depends upon a particular view of Ms Jones’ evidence. It depends upon the hypothesis that what she said was that nothing was provided for Mr Vernon; and as discussed, that is no more than a hypothesis because of the absence of a transcript or a witness statement. Mr Nuttall maintained that her evidence was that the night staff provided unplanned extra care for all, as well as security checks. I agree that that is probably what she said, and that the FTT found differently because it preferred Mr Vernon’s evidence. Accordingly, I do not agree that Orbit’s case now, or its evidence, is “the polar opposite” of what it said in 2022.[49]I agree that Orbit is saying that the facts have not changed. Its position is, and was in 2022, that certain services are provided for Mr Vernon, even though he does not want or use them. The FTT found against Orbit in 2022. There is nothing inconsistent in Orbit saying the same thing about what it regards as the same facts in 2026.[50]It was not asking the FTT in 2025 to take a different view of facts that were the same as those found by the FTT in 2022. It was saying that the facts on the ground remain the same as in 2022, and its argument was “we failed to persuade you in 2022 that the facts were as we said they were and you reached a different view of the facts; now in 2025 we have produced better evidence to show you that the facts on the ground are as we say they are.” On the basis that the FTT in 2022 made a finding only about the facts on the ground in service charge years 2021/22 and 2022/23, there is nothing to prevent Orbit from making its argument on the facts afresh in 2025.

Conclusion

[51]The appeal fails. No issue estoppel arose from the FTT’s 2022 decision to prevent the FTT in 2025 from deciding that services are provided for Mr Vernon in 2023/24 and 2024/25 for which the SBSC is a reasonable and therefore payable charge. Upper Tribunal Judge Elizabeth Cooke 23 January 2026 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.