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

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 for cases due to transfer to the FTT.

Legal assistance is an umbrella term used to cover Advice and Assistance and Civil Legal Aid. Advice and Assistance is available, subject to a financial eligibility test, on any matter of Scots law for various forms of legal advice and assistance short of representation. It will not usually cover representation although in some circumstances, a solicitor may grant a type of Advice and Assistance called Assistance by Way of Representation ( ABWOR) in order to represent their client in proceedings. Where it is available for civil matters, this is subject to the usual Advice and Assistance financial eligibility test but may also be subject to a test of "reasonableness" (as with Civil Legal Aid) and whether the person can participate effectively in proceedings without publicly-funded legal representation.

Civil Legal Aid can cover circumstances where an applicant's case is going to court. It can help pay for the costs involved with this, including all legal preparation work, the gathering of any evidence necessary for their case, representation in court and so on. It is assessed and granted by the Legal Aid Board. It is available subject to three tests: whether the applicant is financially eligible; whether they have probable cause ( i.e. there is a sound legal basis for the proposed action); and whether it is reasonable in the circumstances to make legal aid available (which can, where appropriate, include consideration of whether attempts have been made to resolve the dispute without litigation).

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 Chamber.

Please note that a small number of respondents made broader comments about publicly-funded legal assistance and the FTT and these are considered at Question 21 ^[7] . In particular, an extensive comment by the Legal Services Agency is summarised at Question 21. This respondent referred to this comment at a number of other questions but the analysis is presented only at Question 21.

Question 15: Are you content that there will be no provision for publicly funded legal assistance for procedure in respect of Letting Agent Applications in Chapter 5?

Responses by respondent type are set out in Table 12 below.

Table 12: Question 15 by respondent type

	Yes	No	Not answered	TOTAL
Group
Campaign or Advice Group	2	2	-	4
Local Authority	2	-	-	2
Property management company	1	-	1	2
Representative Body	2	1	4	7
Tenant Group	4	-	-	4
Other	-	-	1	1
Total Groups	11	3	6	20
Individuals	1	-	-	1
TOTAL	12	3	6	21

The majority of those respondents who answered the question (12 out of 15) were content that there will be no provision for publicly-funded legal assistance for procedure in respect of Letting Agent Applications in Chapter 5. Three respondents (Legal Services Agency, Scottish Association of Landlords & Council of Letting Agents and Shelter Scotland) disagreed.

Five respondents made a comment. Two of these respondents had agreed at Question 15. ARLA Propertymark commented letting agents are businesses and should factor in these costs while SFHA noted that this approach would mirror that for Property Factors.

CIH Scotland felt it is not clear why the consultation proposes that legal assistance will not cover cases relating to letting agent registration but will cover landlord registration. They suggested that people should have access to the same levels of support whether their case involves a landlord or a letting agent.

The Scottish Association of Landlords & Council of Letting Agents noted that the possible repercussions of a case against a letting agent are serious, including possibly losing their business and being prevented from acting as a letting agent in the future. They felt that given this possibility, publicly-funded legal assistance should be available to those who meet its qualifying conditions.

Shelter Scotland focused on whether publicly-funded legal assistance should be available to tenants; their view was in order to ensure that every tenant has the possibility to make proper use of this right, publicly-funded legal assistance should be provided.

Question 16: Do you agree publicly funded legal assistance should be available for parties in respect of applications for Landlord Registration in Chapter 6?

If you agree, do you have a view on the type of legal assistance that should be available?

Responses by respondent type are set out in Table 13 below.

Table 13: Question 16 by respondent type

	Yes	No	Not answered	TOTAL
Group
Campaign or Advice Group	2	1	1	4
Local Authority	2	-	-	2
Property management company	1	-	1	2
Representative Body	4	-	3	7
Tenant Group	-	4	-	4
Other	-	-	1	1
Total Groups	9	5	6	20
Individuals	-	1	-	1
TOTAL	9	6	6	21

A small majority of those respondents who answered the question (9 out of 15) agreed publicly-funded legal assistance should be available for parties in respect of applications for Landlord Registration in Chapter 6. Six respondents (East Dunbartonshire and Lanarkshire Regional Network, Homeless Action Scotland, Regional Tenant Network Organisation, Tayside Regional Tenants Network, West Strathclyde Regional Network - Region 7, and an Individual Respondent) disagreed.

Eight respondents made a comment. Two of these respondents had disagreed, with Homeless Action Scotland stating that they did not believe it is in the public interest to subsidise legal assistance for landlords. They suggested legal costs should be part of their normal business expenditure. An Individual respondent referred to delays in obtaining publicly-funded legal assistance and extra costs being incurred by the other party.

Six respondents who had agreed made a comment, with the SFHA suggesting that legal assistance would be appropriate.

Falkirk Council considered Advice and Assistance with ABWOR to be appropriate and noted that this option includes the safeguard of a test of reasonableness, ensuring that an applicant's ability to represent themselves is considered, with representation being made available when required. They also noted that the financial eligibility test ensures only those applicants that are in need can access assistance.

North Lanarkshire Council also suggested Advice and Assistance should be available, adding that in some circumstances, for example where a person is vulnerable, then this should also include representation.

YourPlace agreed with the funding of Advice and Assistance.

Other suggestions included that:

• Publicly-funded legal assistance should be limited to single property landlords who would struggle to meet legal costs (Ayr Housing Aid Centre).
• Landlords should factor any costs associated with the application process into their business plans ( ARLA Propertymark).

Question 17: Do you agree publicly funded legal assistance should be available for parties in respect of applications under the 1984 Act in Chapter 7? This includes applications for possession.

If you agree, do you have a view on the type of legal assistance that should be available?

Responses by respondent type are set out in Table 14 below.

Table 14: Question 17 by respondent type

	Yes	No	Not answered	TOTAL
Group
Campaign or Advice Group	4	-	-	4
Local Authority	2	-	-	2
Property management company	2	-	-	2
Representative Body	3	-	4	7
Tenant Group	-	4	-	4
Other	-	-	1	1
Total Groups	11	4	5	20
Individuals	1	-	-	1
TOTAL	12	4	5	21

A majority of those respondents who answered the question (12 out of 16) agreed publicly-funded legal assistance should be available for parties in respect of applications under the 1984 Act in Chapter 7, including applications for possession. Four Tenant Group respondents (East Dunbartonshire and Lanarkshire Regional Network, Regional Tenant Network Organisation, Tayside Regional Tenants Network, West Strathclyde Regional Network - Region 7) disagreed.

Thirteen respondents made a comment. Of the four Tenant Group respondents who had disagreed, three simply noted that the state should not provide funding under these circumstances (East Dunbartonshire and Lanarkshire Regional Network, Regional Tenant Network Organisation and Tayside Regional Tenants Network). The fourth tenant group (West Strathclyde Regional Network - Region 7) suggested that a landlord should have no access to legal aid in this instance but suggested that a tenant might. ARLA Propertymark (who had not answered the question) noted their view that if publicly-funded legal assistance is made available for one party then it should be provided for both and alternatively, if it is not provided to one side, then the other party should not receive it either. They suggested this would ensure the parties are on an equal footing. They also noted that the FTT is not the traditional adversarial court model and that there is a lesser role for legal representatives in such proceedings.

Amongst those who had agreed, Homeless Action Scotland, and Shelter Scotland considered that legal assistance should be provided - in other words, both Advice and Assistance and Civil Legal Aid should be available. Ayr Housing Aid Centre felt there must be provision for at least legal aid representation.

Falkirk Council, an Individual respondent, North Lanarkshire Council and YourPlace suggested that Advice and Assistance with ABWOR to be the appropriate type of assistance, sometimes noting that this option includes the safeguard of a test of reasonableness, with representation when required and that the financial eligibility test would ensure that only those in need can access assistance. Falkirk Council suggested that their preferred approach would ensure consistency across the range of available tenancy types.

Other comments included that:

• If assistance is not available, the pressure will switch to the third sector resulting in resource issues (Ayr Housing Aid Centre).
• The award of expenses should be sufficient (Greenbelt Group).
• Delays associated with securing Civil Legal Aid can disadvantage the other party (Individual respondent).

Question 18: Do you agree publicly funded legal assistance should be available for parties in respect of applications under the 1988 Act in Chapter 8? This includes applications for possession.

If you agree, do you have a view on the type of legal assistance that should be available.

Responses by respondent type are set out in Table 15 below.

Table 15: Question 18 by respondent type

	Yes	No	Not answered	TOTAL
Group
Campaign or Advice Group	4	-	-	4
Local Authority	2	-	-	2
Property management company	1	-	1	2
Representative Body	3	-	4	7
Tenant Group	-	4	-	4
Other	-	-	1	1
Total Groups	10	4	6	20
Individuals	1	-	-	1
TOTAL	11	4	6	21

A majority of those respondents who answered the question (11 out of 15) agreed publicly-funded legal assistance should be available for parties in respect of applications under the 1988 Act in Chapter 8, including applications for possession. Four respondents (East Dunbartonshire and Lanarkshire Regional Network, Regional Tenant Network Organisation, Tayside Regional Tenants Network, West Strathclyde Regional Network - Region 7) disagreed.

Six respondents, all of whom had agreed at Question 18, made a comment. These comments sometimes reflected the issues raised at the previous question, including that, given the potential seriousness of the issues involved, there should be the possibility of publicly-funded legal assistance (Homeless Action Scotland, and Shelter Scotland).

Ayr Housing Aid Centre felt there must be provision for at least legal aid representation. An Individual respondent and YourPlace suggested that Advice and Assistance, including ABWOR would be the appropriate option. As at previous questions, North Lanarkshire Council suggested that in some circumstances, for example where a person is vulnerable, representation should be included.

Ayr Housing Aid Centre raised an issue regarding access to legal aid providers and noted that there is an important role for advice agencies who often fill the gap in provision. They suggested that a partnership approach, supported by robust quality assurance systems, has considerable merit.

Question 19: Do you agree publicly funded legal assistance should be available for parties in respect of applications under the 2006 Regulations Act in Chapter 9?

If you agree, do you have a view on the type of legal assistance that should be available?

Responses by respondent type are set out in Table 16 below.

Table 16: Question 19 by respondent type

	Yes	No	Not answered	TOTAL
Group
Campaign or Advice Group	3	-	1	4
Local Authority	2	-	-	2
Property management company	1	-	1	2
Representative Body	3	-	4	7
Tenant Group	-	4	-	4
Other	-	-	1	1
Total Groups	9	4	7	20
Individuals	1	-	-	1
TOTAL	10	4	7	21

A majority of those respondents who answered the question (10 out of 14) agreed publicly-funded legal assistance should be available for parties in respect of applications under the 2006 Act in Chapter 9. Four respondents (East Dunbartonshire and Lanarkshire Regional Network, Regional Tenant Network Organisation, Tayside Regional Tenants Network, West Strathclyde Regional Network - Region 7) disagreed.

Seven respondents, all of whom had agreed, made a comment, with a number of these comments linked to issues of equality.

SFHA and Shelter Scotland favoured legal assistance being available, noting the potential for the tenants involved in applications under the 2006 Act in Chapter 9 to be vulnerable. Shelter Scotland noted that under Article 9(2)(f) of the UN Convention on the Rights of Persons with Disabilities, States have the obligation to "promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information." They suggested that publicly-funded legal assistance should be considered to be part of such assistance.

Ayr Housing Aid Centre suggested that as a minimum there should be Advice and Assistance with application.

Falkirk Council, North Lanarkshire Council and YourPlace suggested that Advice and Assistance with ABWOR would be the appropriate option, sometimes noting that this option includes the safeguard of a test of reasonableness, with representation when required. They also noted that the financial eligibility test would ensure that only those in need can access assistance.

An Individual respondent suggested that Advice and Assistance, including ABWOR would be the appropriate option but that Civil Legal Aid should be available in cases involving disability discrimination.

Question 20: Do you agree publicly funded legal assistance should be available for parties in respect of applications under the 2011 Act in Chapter 10?

If you agree, do you have a view on the type of legal assistance that should be available?

Responses by respondent type are set out in Table 17 below.

Table 17: Question 20 by respondent type

	Yes	No	Not answered	TOTAL
Group
Campaign or Advice Group	4	-	-	4
Local Authority	2	-	-	2
Property management company	1	-	1	2
Representative Body	3	-	4	7
Tenant Group	-	4	-	4
Other	-	-	1	1
Total Groups	10	4	6	20
Individuals	-	1	-	1
TOTAL	10	5	6	21

A majority of those respondents who answered the question (10 out of 15) agreed publicly-funded legal assistance should be available for parties in respect of applications under the 2011 Act in Chapter 10. Five respondents (East Dunbartonshire and Lanarkshire Regional Network, Regional Tenant Network Organisation, Tayside Regional Tenants Network, West Strathclyde Regional Network - Region 7 and an Individual respondent) disagreed.

Eight respondents made a comment. One of these comments was from the Individual respondent who had disagreed. They commented that these cases will involve a factual dispute, that no expenses are involved and that they can be done in writing with minimal cost.

Amongst the seven respondents who agreed and commented, further comments tended to reflect those made at earlier questions. Falkirk Council, North Lanarkshire Council and YourPlace suggested that Advice and Assistance with ABWOR would be the appropriate option while the SFHA and Shelter Scotland favoured legal assistance being available.

SFHA went on to comment that it is important to ensure that tenants have the confidence to pursue tenancy deposit claims. Shelter Scotland felt that the legal assistance option would reflect the severity of the proceedings and ensure that tenants can be made aware of the possible outcomes and consequences of the proceedings, including their own eviction.

Finally, Ayr Housing Aid Centre again noted the role of advice agencies and the benefits of the partnership approach.

Question 21 Do you agree publicly funded legal assistance should be available for parties in respect of private residential tenancy applications in Chapter 11? This includes applications for an eviction order.

If you agree, do you have a view on the type of legal assistance that should be available?

Responses by respondent type are set out in Table 18 below.

Table 18: Question 21 by respondent type

	Yes	No	Not answered	TOTAL
Group
Campaign or Advice Group	4	-	-	4
Local Authority	2	-	-	2
Property management company	1	-	1	2
Representative Body	3	-	4	7
Tenant Group	-	4	-	4
Other	-	-	1	1
Total Groups	10	4	6	20
Individuals	1	-	-	1
TOTAL	11	4	6	21

A majority of those respondents who answered the question (11 out of 15) agreed publicly-funded legal assistance should be available for parties in respect of applications under the 2011 Act in Chapter 10. Four respondents (East Dunbartonshire and Lanarkshire Regional Network, Regional Tenant Network Organisation, Tayside Regional Tenants Network, West Strathclyde Regional Network - Region 7) disagreed.

Ten respondents made a comment. As noted at the beginning of this section, the analysis presented at this question also covers some of the wider issues raised around legal aid.

A number of those commenting noted their strong support for legal assistance being available, given that tenants could lose their home (Homeless Action Scotland, Legal Services Agency and Shelter Scotland). The Legal Services Agency noted that, as a matter of principle, they agreed that publicly-funded legal assistance should be available for parties in respect of private residential tenancy applications (including applications for an eviction order). They went on to comment that:

• Under the existing procedures through the courts, publicly-funded legal assistance is made available where it is reasonable to do so and where the party concerned meets the financial tests. They were of the view that a reform transferring recovery of possession to the FTT should not result in a party being put at a disadvantage as a consequence of the change of forum in which the matter is dealt with.
• In adjudicating on residential tenancies, the FTT is weighing up a number of important statutory and common law rights but is also dealing with issues that come within the purview of a number of human rights. This includes rights to property and respect for personal and family life. They suggested that it is trite law that, when adjudicating on such matters the right of access to a court or tribunal must be practical and effective but also that, in certain cases, there is a positive obligation upon a state to provide Legal Aid.

The Legal Services Agency also noted their view that the Civil Legal Aid system is a well-tried set of arrangements that, where applied, work satisfactorily but that the system can be bureaucratic and lead to delays. They suggested that there may be value in extending the assistance by way of a representation system to the new tribunal arrangements, but noted their conviction that where there are matters of complexity and importance, publicly-funded legal advice, assistance and representation must be made available in a concrete and effective manner.

Otherwise, respondents tended to take a very similar position at this question as at preceding questions. Falkirk Council, an Individual respondent, North Lanarkshire Council and YourPlace suggested that Advice and Assistance with ABWOR would be the appropriate option while the SFHA and Shelter Scotland favoured legal assistance being available. Shelter Scotland went on to comment that, in their response to the Scottish Government's Consultation on Proposals for Regulations and Policy Supporting the Private Housing (Tenancies) (Scotland) Act 2016, they had expressed a view that the difference between mandatory and statutory terms was confusing. They suggested that when issues are legally complex and not easy to understand, it is important that parties are able to be represented by people who have the knowledge and experience to ensure that the rights of their client are adequately protected.

CIH Scotland noted that one of the aims of the new system is that it should be simpler and more accessible than taking a case to the Sheriff Court. However, they suggested that some people will still need advice, information and support to prepare a case and that it is essential that the right support is available.

Ayr Housing Aid Centre again noted the role of advice agencies and the benefits of the partnership approach.