An LVT should determine the questions raised in the application before it and not questions it itself identified.
Over recent months there have been reminders that the LVT is not an unfettered inquisitorial tribunal. This has now been set out even more clearly by HHJ Nigel Gerald in this appeal. It arose from a decision in which an LVT was asked to consider the workmanship of replacement windows but instead decided that there had been no need to replace the windows at all.
Judge Gerald said “It is regrettable that it appears to be a developing practice within some leasehold valuation tribunals to take it upon itself to identify issues which are of no concern to the parties and then reach a decision on issues they have not been asked to which then results in an appeal and all the waste of time and money and attendant general aggravation”.
He continued, “It is the jurisdiction and function of the LVT to resolve issues which it is asked to resolve, provided they are within its statutory jurisdiction. It is not the function of the LVT to resolve issues which it has not been asked to resolve, in respect of which it will have no jurisdiction. Neither is it its function to embark upon its own inquisitorial process and identify issues for resolution which neither party has asked it to resolve, and neither does it have the jurisdiction to do so. To do so would be inimical to the party-and-party nature of applications to the LVT and would greatly increase the costs (frequently recoverable from the tenant through the service charge) and difficulties attendant to service charge disputes which by their nature are frequently fractious, involving relatively small sums within a complex matrix of divers items …”.
Whilst there may be cases when it is appropriate or necessary for the LVT to raise issues not expressly raised by the parties, such cases will be rare and the issues must fall within the scope of the application in order to properly determine the issues expressly in dispute. Further, the parties must be given opportunity to make submissions and adduce further evidence.
Elizabeth Haggerty / 1st Nov 2012
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