Upper Tribunal allows appeal against refusal to compensate landlord £70 for gas hob reconnection

About this case:

• Citation:
  2024UT35
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff McCartney

Appellant Andrea Bradshaw had contracted with respondent Delmore Estate Agents Ltd for letting agent services in respect of a property in Kirkcaldy. In the application, the findings in fact made by the FTS were criticised as having been made in error and as misinterpreting the key issue of the case.

The application was heard by Sheriff Frances McCartney of the Upper Tribunal. The appellant was represented by her husband Graham Bradshaw while the respondents were represented by Ms Tracey Allan.

Premised on misapprehension

In February 2022, the fire brigade was called to a property owned by the appellant, for which the respondent provided letting agent services, after the tenant was thought to have left the gas on. The fire brigade capped the gas hob and recommended it be checked by a gas safety engineer, indicating that it might not meet current regulations. It was later confirmed by an engineer that the hob was safe. After some delay, the appellant eventually paid for the gas hob to be reconnected.

It was alleged by the appellant that the respondent had breached various aspects of the Letting Agents Code of Conduct, and she sought reimbursement of the £70 cost of reconnecting the hob and additional compensation. At a hearing of the FTS, evidence was given by Mr Bradshaw on behalf of the appellant and a single witness appeared for the respondent.

The FTS made 41 findings in fact, listed in Roman numerals, some of which the appellant criticised as plainly wrong, including a finding that the £70 charge was the cost of renewing a gas safety certificate and a further finding which read that the appellant “inexplicably” appeared to think the respondent was responsible for paying for her gas safety checks.

Following the findings in fact, the FTS stated that it found the application to be “quite bizarre”, and that it could not understand why the appellant did not accept the respondent’s recommendation to replace the faulty hob and move on. It described the application as “premised on a complete misapprehension of what a letting agent does for a landlord”.

Undermined decision

In her decision, Sheriff McCartney said of the FTS’s findings: “The £70 charge was not for the renewal of the gas safety certificate, but rather a charge for the reconnection of the gas hob. The correct factual position was confirmed in correspondence between the parties. What the charge of £70 related to was not in dispute, and accordingly the First‐tier Tribunal have erred in making finding 20. Finding 21 (if it is a true finding in fact), is also therefore factually wrong.”

She continued: “That error alone is sufficient for permission to appeal to be granted. It is also sufficient for the appeal itself to be granted. The central issue in dispute between the parties was the Respondent’s action (or rather lack of action) after the hob was capped. As the First-tier Tribunal have misunderstood the facts around this issue, these findings undermine its decision and the decision falls to be overturned.”

Highlighting other matters of concern in the conduct of the case, the sheriff said: “Some of what are said to be findings of the First-tier Tribunal are written in pejorative language. Many are not findings of fact, but rather conclusions that might be reached following findings in fact being made. Some findings contain a procedural narrative. Many use emotive language. It is also unhelpful that the First‐tier Tribunal use Roman numerals to signpost over 40 findings in fact, given it is a forum generally dealing with unrepresented parties.”

She concluded: “Findings in fact should be written in a neutral tone. They should not contain a procedural narrative. The findings should tell the reader the true sequence of events on the salient points in dispute. Findings of fact should be succinct, and should be made on all material points required to resolve the issue or issues between the parties. The views of the fact finder on the credibility or reliability of a witness are not contained in the findings of fact, but rather in a subsequent explanation in the decision or judgement explaining why such findings have been made.”

Permission to appeal was therefore granted. The respondents thereafter conceded the appeal, the parties having reached a settlement.