First-tier Tribunal Housing and Property Chamber procedure: consultation analysis

Executive Summary

Introduction

This report presents an analysis of responses to the Scottish Government's consultation on Procedure of the First-tier Tribunal Housing and Property Chamber. The consultation sought views on:

• A single set of operational rules to apply across all jurisdictions in the Housing and Property Chamber from December 2017, intended to streamline existing procedures and to provide consistency of approach.
• The provision of publicly-funded legal assistance in certain circumstances.

The consultation opened on 6 January and closed on 31 March 2017 and 21 responses were received (20 from organisations and one from an individual member of the public).

Part One: The First-tier Tribunal Housing and Property Chamber (Procedure) (Scotland) draft regulations 2017

The first part of the consultation sought views on the draft Housing and Property Chamber Rules of Procedure 2017 (the 2017 Rules). In terms of the layout and ordering of the procedure common to all procedures in Part 1, there were some concerns that the language is difficult to understand and it was felt that more could be done to phrase the regulations in plain English.

There are some new rules introduced into Part 1 which are common to all proceedings. Comments on these new rules included that it needs to be clear under what type of circumstances the FTT may determine the proceedings without a hearing (regarding Rule 17 - Power to determine the proceedings without a hearing), and whether the FTT can adjourn or postpone a hearing even if parties have not applied for this (under Rule 26 - Adjournment or postponement). Respondents also made comments about how some of the other rules would apply under the FTT.

The consultation asked a series of questions about whether respondents were content with the amendments to the First-tier Tribunal for Scotland Housing and Property Chamber Rules of Procedure 2016 as set out in chapters 1-4. A majority of respondents were content in relation to: Repairing Standard Applications (13 out of 15 respondents who answered the relevant question); Landlord Applications (9 out of 10 respondents who answered the relevant question); Assured Tenancy References (12 out of 14 respondents who answered the relevant question); and Regulated Tenancy References (12 out of 13 respondents who answered the relevant question).

In relation to jurisdictions due to transfer from the Sheriff Court, 12 out of 14 respondents who answered the relevant question agreed with the procedure for applications under the Rent (Scotland) Act 1984 in Chapter 7, and 10 out of 14 respondents who answered the relevant question agreed with the procedure for applications under the Housing (Scotland) Act 1988 in Chapter 8. All of the 13 respondents who answered the relevant question agreed with the procedure for adaptations of rented houses applications in Chapter 9, and 11 out of 14 who answered the relevant question agreed with the procedure for tenancy deposit applications in Chapter 10.

All of the 12 respondents who answered the relevant question agreed with the procedure for letting agent applications in Chapter 5, and 10 out of 13 who answered the relevant question agreed with the procedure for applications under the Private Housing (Tenancies) (Scotland) Act 2016.

The final question on the draft regulations asked respondents if there are any particular equality issues that the Scottish Government should consider in relation to the operational procedures as the Housing and Property Chamber expands in December 2017. Comments included that equivalence of treatment of the applicant and the defendant is important. A number of the other comments considered various aspects of access to the FTT, including that out of working-hours options should be available, that the option of hearings held by phone should not inadvertently disadvantage those living in rural or remote areas and that there should be further regulations around what users of the FTT can expect, including, for example, the provision of translators and sign language interpreters.

Part Two: The provision of publicly funded legal assistance in the First-tier Tribunal Housing and Property Chamber

Part Two of the consultation focused on the availability of publicly-funded legal assistance to cases due to transfer to the FTT. The Scottish Government policy intention is for publicly-funded legal assistance in the FTT to be considered on a jurisdiction by jurisdiction basis in advance of the tribunals transferring into their respective chambers of the Tribunal. There is currently no provision for publicly-funded legal assistance in the Housing and Property Chamber.

The majority of respondents (12 out of 15 who answered the relevant question) were content that there will be no provision for publicly-funded legal assistance for procedure in respect of Letting Agent Applications but agreed with publicly-funded legal assistance being available for parties in respect of applications for Landlord Registration (9 out of 15 respondents who answered the relevant question).

The majority of respondents also agreed with publicly-funded legal assistance being available across the range of other tenancy-related applications (ranging from 10 out of 15 to 12 out of 16 respondents who answered the relevant questions). In particular, the potential seriousness of the issues covered at the FTT was noted, including that a tenant could lose their home and that a landlord or agent could lose their livelihood.

Further comments highlighted some differences of view as to the type of activity which should be publicly-funded. Some felt that that legal assistance should be provided - in other words, both Advice and Assistance and Civil Legal Aid should be available. Others suggested Advice and Assistance with Assistance by Way of Representation to be the appropriate type of assistance, sometimes noting that this option includes the safeguard of a test of reasonableness, with representation when required.