First-tier Tribunal for Scotland Housing and Property Chamber procedures: consultation

Legislative Background

Tribunals (Scotland) Act 2014

19. The background and details of the policy objectives relating to the Tribunals Scotland Act 2014 are set out in the Policy Memorandum which accompanied the 2013 Tribunals Bill.

20. The Tribunals (Scotland) Act 2014 (the Tribunals Act) created a new, two-tier structure for devolved tribunals in Scotland - to be known as the Scottish Tribunals. There is a First-tier Tribunal for first instance decisions and an Upper Tribunal (primarily for dealing with appeals) with a common system of leadership, appointments, practice and procedures, wherever practicable, under the overall leadership of the Lord President of the Court of Session.

21. The Chamber Regulations divide the First-tier Tribunal for Scotland (First-tier Tribunal) into the following 5 chambers

• Mental Health Chamber;
• Housing and Property Chamber;
• Health and Education Chamber;
• General Regulatory Chamber; and
• Tax Chamber

22. A Chamber President will be appointed to each of the Chambers. Ms Aileen Devanny is President of the Housing and Property Chamber.

23. A suite of secondary legislation supports the establishment of the Housing and Property Chamber and the transfer of existing housing tribunals under Phase I. Relevant and associated legislation is set out at Annex B

Housing (Scotland) Act 2014

24. The background and details of the policy objectives relating to the Housing (Scotland) Act 2014 are set out in the Policy Memorandum which accompanied the Housing Bill.

25. The 2014 Act makes provision for the framing of rules to regulate the practice and procedures to be adopted by the Scottish Tribunals. Tribunal Rules are to be made by the Court of Session by act of seredunt and the 2014 Act provides the Scottish Civil Justice Council ( SCJC) with the function of preparing and submitting draft Tribunal Rules to the Court of Session.

26. As the SCJC was newly established during the passage of the 2014 Act, and the rule-making function could not be transferred at that time, the 2014 Act included provision for Scottish Ministers to make rules for the Scottish Tribunals on an interim basis. The SCJC's function will extend to reviewing the practice and procedure used in the Scottish Tribunals, including any rules made by the Scottish Ministers.

27. Part 3 and Schedule 1 of the Housing (Scotland) Act 2014 (the Housing Act) transfers jurisdiction for civil cases relating to the private rented sector from the Sheriff Court to the First-tier Tribunal. The grounds (reasons) which allow someone to raise an action and the issues to be taken into account in deciding a case would remain the same, but the decision-maker would change from the Sheriff to the First-tier Tribunal.

28. Further details including the types of cases that will transfer are included in the policy memorandum for the Housing Bill and in Part 3 of the Housing Act.

29. Part 4 of the Housing Act provides for a regulatory framework for letting agents.

Private Housing Tenancies (Scotland) Act 2016

30. The Private Housing (Tenancies) (Scotland) Act 2016 creates a new private residential tenancy which aims to improve security and stability for tenants, balanced with safeguards for landlords, lenders and investors.

31. The First-tier Tribunal for Scotland (Transfer of Functions of the Homeowner Housing Panel) Regulations 2016 enabled the Homeowner Housing Panel and the Private Rented Housing Panel to transfer to the First-tier Tribunal with their existing functions and members, insofar as practicable, on 1 December 2016.

32. The First-tier Tribunal for Scotland Housing and Property Regulations enabled the former housing tribunals (the Homeowner Housing Panel and the Private Rented Housing Panel) to transfer to the First-tier Tribunal with their existing operational procedures as far as practicable.

33. Schedule 1 to the Chamber (Procedure) Regulations 2016 sets out the rules of procedure in respect of proceedings before the First-tier Tribunal for Scotland Housing and Property Chamber. The rules provide for the transfer of existing housing tribunals under Phase I of the Chamber Implementation Project. Part 2 of schedule 1 covers proceedings in respect of homeowners and Part 3 covers proceedings in respect of the private rented housing sector, including landlord applications and assured tenancy references.

Administration of Tribunals

34. The Scottish Courts and Tribunals Service is responsible for providing support and guidance to applicants.

35. The Judicial Appointments Board for Scotland is responsible for recommending to the Scottish Ministers suitable candidates for appointment to the Scottish Tribunals. An appointment round is currently underway to support the expansion of the Housing and Property Chamber in 2017.

36. The Lord President of the Court of Session is responsible for ensuring that appropriate arrangements are made and maintained as to the welfare of the members of the Scottish Tribunals including the provision of training and guidance.

Consultation

37. The President of the Housing and Property Chamber and the operational team of the Scottish Courts and Tribunals Service have been consulted in the development of the 2017 Rules.

38. In accordance with paragraph 4(3) of schedule 9 of the Tribunals Act, the Scottish Ministers will continue to consult with the President of the Scottish Tribunals.

39. In addition to the formal consultation process, the transfer of the existing housing tribunals to the First-tier Tribunal in December 2016 may also inform improved operational procedures for the 2017 Rules.