First Tier Tribunal: emergency Practice Directions

In light of the ongoing COVID-19 pandemic, on 19th March 2020, the Senior President of Tribunals published two Practice Directions.

The first of these Practice Directions deals with panel composition in the FTT and Upper Tribunal.

The second deals with contingency arrangements in the FTT and Upper Tribunal.

 

Panel composition

The Practice Direction recognises that during the COVID-19 pandemic, it’s likely to be necessary for Tribunals to adjust their ways of working.

This Practice Directions allows a salaried judge to decide that cases should be heard by:

  1. A judge alone; or
  2. A panel consisting of fewer or different members (than would be usually permitted).

A salaried judge will make these decisions if the judge considers that a case could not proceed, or would be subject to unacceptable delay.

 

Contingency arrangements

The Practice Direction provides for various contingency arrangements in Tribunals in these rather difficult times.

 

Decisions on the papers without a hearing

The Practice Direction sets out that, where procedural rules allow decisions to be made without a hearing, that decisions now “should usually be made in this way”.

The Tribunal Procedure (First Tier Tribunal) (Property Chamber) Rules 2013 allow the FTT to make decisions without a hearing. It seems, therefore, that the default position (certainly for the next six months) will be that decisions will be made on the papers without a hearing.

This is provided, of course, that it accords with the overriding the objective, the parties’ ECHR rights and rules about notice and consent.

 

Triage

To deal more efficiently with cases in which a successful outcome for the applicant is highly likely, the Practice Direction allows Chamber Presidents introduce measures to “triage” applications.

This process would essentially involve the Tribunal considering the papers (without a hearing), providing a provisional decision to the parties, and asking the parties whether they consent to the Tribunal making a binding decision on the papers (which will be in the same terms as the provisional decision).

Let’s see whether the triage procedure is adopted in the FTT and Upper Tribunal.

Hearings

Where it’s reasonably practicable, and in accordance with the overriding objective, cases will now be heard remotely.  So, no more face to face hearings for the time being.

Inspections

Inspections are now suspended with immediate effect.

However, to mitigate the impact of the suspension, the Tribunal may:

  1. Permit parties to produce photos and/or videos of the condition or relevant aspects of the property;
  2. Undertake external “drive by” inspections in appropriate cases.

 

Commentary

The Practice Directions are issued for a period of six months. They can, however, be reviewed or revoked at any time.

But what’s on the cards for the foreseeable is more paper determinations (rather than hearings) and, where hearings are still required, that they’ll be done remotely rather than face to face.

I’m interested to see what comes of the proposed triage function.

Watch this space …

 

 

21 March 2020

Cassandra Zanelli

Widely recognised for her expertise in the industry, and listed among the 100 most influential people in residential leasehold management, Cass heads the team at PM Legal Services. Passionate about education and sharing knowledge, she's a regular speaker at conferences, events and seminars, having worked with leading organisations in the property management industry.

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