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Publication - Consultation Responses

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

Published: 7 Jul 2017
Part of:
Housing
ISBN:
9781788510851

Analysis of responses to the consultation on procedure of the First-tier Tribunal (FTT) Housing and Property Chamber.

38 page PDF

463.0kB

38 page PDF

463.0kB

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

38 page PDF

463.0kB

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).

Procedure common to all proceedings

Part 1 sets out, in broad chronological order, existing procedures that are common across the Chamber. The layout is intended to guide the user through the process, from the initial application through to reviews, and a final appeal process. Part 1 applies to anyone with an application lodged in the correct way, no matter what type of housing case is in dispute.

The consultation paper highlighted new rules introduced into Part 1 which are common to all proceedings. In Part 1, this will apply to: Rule 16 Case Management Discussion; Rule 17 Power to determine the proceedings without a hearing; Rule 24 Duties of Chairing Member at hearing; Rule 25 Voting for and Giving a Decision; Rule 26 Postponement; Rule 33 Clerical mistakes and accidental slips or omissions; and Rules 35 and 36 - Reviews and Appeals.

Question 1: Do you have any comments or suggestions on the layout and ordering of the procedure common to all procedures in Part 1 from a user perspective?

Eleven respondents made a comment at Question 1 which directly addressed Question 1 [1] . A small number of these comments were general and included giving broad support to the operational procedures (Scottish Land and Estates) and commenting that the layout is easy to follow (YourPlace). Scottish Land and Estates welcomed having Regulations which can be easily understood by all parties as part of the policy aim to create an efficient and just system.

However, Shelter Scotland (following consultation with its Private Tenants' Forum) raised some general concerns about the layout and ordering of Part 1. These included that:

  • While some tenants found the layout and ordering well-presented and accessible, most found it difficult to follow. Specific concerns included that Part 1 is too long, would need to be read several times. It was suggested that a simple flow diagram with notes would be much easier and quicker to understand.
  • The language is difficult to understand and, in particular, there is too much use of legal language. It was suggested that the draft Regulations be rewritten in plain English and that the Scottish Government should carry out focus group exercises based around the rules to aid this process.

CIH Scotland raised similar concerns. They acknowledged that the legal nature of regulations means that the language and format used can make it more difficult for people without a background in law or policy to understand. However, they suggested that more could be done to phrase the regulations in plain English. They also recommended that the Scottish Government develops a user-friendly guide or an online tool to accompany the regulations and that there should also be clear signposting to further information and advice and where people may be eligible for legal assistance.

ARLA Propertymark suggested that information outlining where the forms can be accessed should be provided.

Chapters 1- 4 amending the 2016 rules

Other comments focused on specific rules. The comments on the new rules (as listed above), are presented first.

Rule 16 - Case management decisions: Although commenting that case management discussions seem like a good way to promote an inquisitorial approach, SFHA sought clarity as to how transparent these would be for the parties involved is required.

Ayr Housing Aid Centre had concerns about the FTT being able to do anything at a case management discussion which it can do at a hearing, including making a decision. They referred to Part 3, Chapter 11 of the draft Regulations and suggested that an eviction order granted under Rule 16 may not comply with the European Convention on Human Rights ( ECHR) on a number of levels. In particular, they suggested that there should be an exception relating to a decision under Rule 16 if the application relates to Rule 110 (Application for an Eviction Order). They also suggested that there could be similar issues in relation to rules 79, 94 and 97 which also relate to orders for possession.

Rule 17 - Power to determine the proceedings without a hearing: Shelter Scotland expressed a concern that Rule 17 does not specify under what type of circumstances the FTT may determine the proceedings without a hearing. Ayr Housing Aid Centre and SFHA made a similar point, with SFHA suggesting that transparency will be important. Shelter Scotland suggested that there should also be a way to review or reconsider any decision, noting that Article 6 of the ECHR states that everyone should be entitled to "a fair and public hearing".

Making a similar point to that made by Ayr Housing Aid Centre with regard to Rule 16, Shelter Scotland went on to suggest that Rule 17 should not apply to applications for Orders for Possession. They proposed that applications for Orders for Possession should be called before the FTT anytime the FTT has the power to make an Order for Possession, suggesting this would be proportionate to the complexity of the issues. They also suggested that ensuring that a hearing is mandatory where an Order for Possession is in issue would ensure compliance with Article 8 of the ECHR and cited various case law in support of their argument.

Rule 25 - Voting for and giving a decision: An Individual respondent queried whether if two members were sitting, and given that the chair has a casting vote, then the chair's view would prevail. They also queried whether if the chair is absent, the other party has sole right to make a ruling.

Shelter Scotland suggested that this rule eliminates the need for complete statement of reasons in regard to setting aside, correcting and reviewing a FTT decision. They felt that it is the right of FTT users to know the reasons that informed specific decisions, such as the outcome of a review. They suggested that this rule and Rule 36 - Review of a decision, are amended so that a statement of reasons must be sent to all parties.

Rule 26 - Adjournment or postponement: Shelter Scotland thought it was unclear as to whether the FTT can adjourn or postpone a hearing even if parties have not applied for this. They suggested that the FTT should be able to do so as this would better enable them to exercise discretion and would be in line with the more active and inquisitorial nature of the FTT.

Rule 35 - First-tier Tribunal's consideration of application for permission to appeal: Ayr Housing Aid Centre noted that this rule allows the FTT to consider whether to review a decision and asked whether this would be considered by a differently constituted tribunal from the chamber. They suggested that, if there is no review, then consideration should be given to granting permission to appeal to the Upper Tribunal.

Shelter Scotland suggested that the wording of 35(2) is somewhat ambiguous and that the FTT should first determine whether the application for permission to appeal has merit. Depending on the decision, it should then give permission to appeal, refuse the permission to appeal or change its own decision.

Other rules in chapters 1 - 4

A number of respondents also commented on one or more of the other rules which are not new.

Rule 4 - Applications: Shelter Scotland suggested that further information should be provided as to where the application forms can be found. Specifically, they suggested that a link to an online version of the form should be provided.

Rule 11 - Hearing two or more applications together: The Scottish Property Federation and Homes for Scotland noted that the FTT can direct two or more applications to be considered simultaneously where they relate to the same property. They suggested that it should be made clear that an application to the FTT should be made by the principal tenant, on behalf of any joint tenants or other registered occupants of a let property and that the FTT should not consider duplicate submissions relating to the same property or issue from multiple occupants of a dwelling.

Rule 12 - Amendment to a party's written representation: Ayr Housing Aid Centre made specific suggestions as how Rule 12 should be amended including that the reference to being subject to Rule 14 should read subject to Rule 13.

They also suggested that at 12(1)(b), the FTT should consider whether the amendment could have been submitted earlier under 12(1)(a), and that at 12(2)(a) they should consider whether substantial amendments should trigger an adjournment under Rule 26 - Adjournment or postponement.

Rule 13 - Amendment raising new issues: Shelter Scotland noted that any proposed amendment raising new issues of written representation can only be made if the FTT consents and that the FTT can also place conditions on such amendments as it sees fit. They sought clarification as to whether this includes new legal issues. If so, and particularly if linked to any ground for possession, they suggested it will be important that the notice periods linked to the new legal issue are respected. They suggested that in such cases, the FTT may have to determine that the new legal issue constitutes a new action that needs to be raised separately.

Ayr Housing Aid Centre also commented on the links between the current application and the new issue. Referring back to their comments on Rule 12, they proposed that the FTT should consider whether the applicant could have introduced the new issue earlier in the process.

Rule 14 - Withdrawal of the application: Shelter Scotland suggested that an applicant could find this rule confusing since 14(1)(a) states that an applicant may withdraw an application orally at a hearing, while 14(2) states that a notice of withdrawal must be in writing.

Rule 18 - Mediation: The Scottish Association of Landlords & Council of Letting Agents highlighted the value they placed on the mediation service provided by the FTT. They hoped that the service will continue to be provided by the FTT. Similarly, the First-tier Tribunal for Scotland Housing and Property Chamber suggested that the draft regulations be reworded to provide certainty that mediation can be provided by trained members of the Housing and Property Chamber. Specifically, they suggested that the same wording as exists in Section 24 of the Tribunals, Courts and Enforcement Act 2007 should be adopted [2] . An Individual respondent asked whether there would be a list of mediators or a referral mechanism.

Rule 20 - Evidence: Ayr Housing Aid Centre suggested this Rule should be linked to Rules 13 and 14.

Rule 21 - Lodging of documents etc.: As above, Ayr Housing Aid Centre suggested this Rule should be linked to Rules 13 and 14.

An Individual respondent noted that the Rule does not indicate when the documents are to be lodged.

Shelter Scotland's concerns related to timescales - they felt that given the short notice period for hearings, parties should be given more time than a minimum of 3 days to gather and send any document and lists of witnesses. They noted that the current Summary Cause Rules allow for a period of 28 days from the date of fixing a hearing on evidence for the lodging of list of witnesses and documents and that parties have to lodge the actual evidence no later than 14 days before a hearing.

Rule 22 - Documents at hearings: An Individual respondent asked whether there will be any sanction for unreasonable delay.

Rule 23 - Hearings: Shelter Scotland commented that, whilst agreeing with making the FTT as efficient as possible, they considered that 10 working days is impractical and would not constitute reasonable notice. They noted that a party may wish to take advice on their case and may also need advice on a separate issue, such as making an application for benefits. They had an associated concern that parties may be less likely to attend hearings if they are unable to access the necessary advice and/or make the necessary arrangements to do so. They proposed a notice period of at least 20 working days.

Homeless Action Scotland commented on hearings held by telephone. Their concern was that telephone hearings should not become the norm for people living in rural or remote areas for reasons of expediency for the FTT. They noted that any such approach could result in inequitable access to full FTT hearings for people living in these areas.

An Individual respondent asked whether a previously represented party can take over dealing with their case at a hearing.

Rule 28 - Recall: Shelter Scotland suggested this rule should be adjusted to ensure that all recalls for evictions actions must result in a hearing. They also suggested:

  • A specific change in wording so that the rule reads "and a party (or a party's representative) did not attend".
  • That the rule needs to be changed to accommodate case management discussions. They referenced Rule 16 as stating that the FTT "may do anything at a case management discussion which it may do at a hearing, including making a decision" but noted that Rule 28 only accounts for situations when "a party (or a party's representative) did not attend the hearing".
  • That the 14-day deadline for parties to apply for a recall of a decision should be extended. Their proposal was that parties should be able to apply for a recall up until enforcement of the decision.
  • Further information should be provided regarding how the party making the application must send a copy for the application to the other party and what kind of evidence is sufficient to prove that it has done so.

Rule 32 - Prohibition on recording of proceedings by parties: Ayr Housing Aid Centre suggested this could be linked to Rule 35 and Rule 36.

Rule 34 - Application for permission to appeal a decision for the First-tier Tribunal: Shelter Scotland suggested this rule should mention the specific timescales that apply to applications for permission under section 46(3)(1) of the Tribunals (Scotland) Act 2014. [3]

They also suggested that some of the terminology used at Rule 34 will mean little to most users who may find it difficult to determine if any of the regulations apply to them, and that the information provided should be extended and specific timescales mentioned.

Rule 37 - Expenses: Homeless Action Scotland welcomed this Rule but noted that the draft Model Tenancy Agreement [4] contained a clause which would enable a landlord to recover all expenses awarded against them from their tenant, regardless of the ruling of the FTT. They suggested that this appears contrary to the spirit of Rule 37 and that the Model Tenancy Agreement should be changed to enable Rule 37 to be implemented as intended.

Ayr Housing Aid Centre hoped that the FTT would have issued relevant directions and taken appropriate action based on unreasonable conduct. They went on to comment that awarding expenses could be described as a fee and that this could lead unnecessarily to a range of complications.

An Individual respondent sought clarification as to whether there can be no award of expenses other than at Court of Session Rates.

Question 2: Do you have any comments on Part 2 (Procedure in respect of Homeowner Applications) about amendments to the existing rules for Homeowner applications?

Part 2 contains information that a homeowner will need to be able to make an application about an alleged failure of a property factor to comply with the Property Factors (Scotland) Act 2011. This Part is the same as the 2016 rules for procedures relating to property factoring and maintenance, registration matters and enforcement of a code of practice.

Only two respondents made a comment at Question 2.

Greenbelt Group was concerned that the current process is largely adversarial and does not take into account that the Property Factor and Homeowner will continue to have a relationship both during and following the determination of the Application. They suggested that mediation would be a more effective dispute resolution process given the ongoing nature of the parties' relationship. They went on to make a number of specific suggestions including that:

  • A more proactive case management role could be adopted from the outset.
  • The Property Factor should be informed of any application and given the opportunity to make submissions, including proposing possible dispute resolution by other means.
  • Parties should be given the opportunity to inspect or uplift/borrow papers from the FTT.
  • There should be a time limit for response from the other party and a time limit for a decision to be issued. They suggested that in both cases 7 days would be appropriate, but with a shorter time limit in urgent cases.
  • Where there is to be a full hearing, a prior procedural hearing should be automatically assigned to actively look at potential resolution including mediation.

Question 3: Are you content with the amendments to the 2016 regulations in relation to Repairing Standard Applications in Chapter 1?

Responses by respondent type are set out in Table 2 below.

Table 2: Question 3 by respondent type

Yes No Not answered TOTAL
Groups:
Campaign or Advice Group 3 - 1 4
Local Authority 2 - - 2
Property management company 1 - 1 2
Representative Body 2 2 3 7
Tenant Group 4 - - 4
Other - - 1 1
Total Groups 12 2 6 20
Individuals 1 - - 1
TOTAL 13 2 6 21

The majority of respondents who answered the question (13 out of 15 respondents) were content with the amendments to the 2016 regulations in relation to Repairing Standard Applications in Chapter 1. Only two Representative body respondents (Scottish Association of Landlords & Council of Letting Agents and the Scottish Property Federation) were not content.

In their further comment, the Scottish Association of Landlords & Council of Letting Agents suggested that the consultation is not clear about what amendments have been made.

The Scottish Property Federation's concern related to whether a Landlord has the right to access a dwelling without consent from the FTT in order to carry out obligations set out within the Model Tenancy Agreement. They suggested that the draft Regulations do not make this clear.

Two respondents who had noted that they were content also made a comment. Shelter Scotland noted their support for the descriptive titles for individual rules here and across the draft Regulations and suggested that this will help users of the FTT to better navigate the Regulations.

Ayr Housing Aid Centre suggested that Rule 48 - Parties to be notified by the First-tier Tribunal - should include '(c) Third party making application under section 22(1A) of the Act' and that this should be linked to Rule 52 - Parties to be notified by the First-tier Tribunal.

Question 4: Are you content with amendments to the 2016 regulations in relation to Landlord Applications in Chapter 2?

Responses by respondent type are set out in Table 3 below.

Table 3: Question 4 by respondent type

Yes No Not answered TOTAL
Groups:
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 1 - 3 4
Other - - 1 1
Total Groups 8 1 11 20
Individuals 1 - - 1
TOTAL 9 1 11 21

The majority of respondents who answered the question (9 out of 10 respondents) were content with amendments to the 2016 regulations in relation to Landlord Applications in Chapter 2. Only one Representative Body respondent (Scottish Association of Landlords & Council of Letting Agents) was not content. In their further comment, they again suggested that the consultation is not clear about what amendments have been made.

Question 5: Are you content with amendments to the 2016 regulations in relation to Assured Tenancy References in Chapter 3?

Responses by respondent type are set out in Table 4 below. Table 4: Question 5 by respondent type

Yes No Not answered TOTAL
Groups:
Campaign or Advice Group 2 1 1 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 2 7 20
Individuals 1 - - 1
TOTAL 12 2 7 21

The majority of respondents who answered the question (12 out of 14 respondents) were content with amendments to the 2016 regulations in relation to Assured Tenancy References in Chapter 3. Two respondents (Scottish Association of Landlords & Council of Letting Agents and Shelter Scotland) were not content. As at previous questions, the Scottish Association of Landlords & Council of Letting Agents suggested that the consultation is not clear about what amendments have been made.

In their further comments, Shelter Scotland called for Rule 58 - Assured tenancy references to the First-tier Tribunal, to be amended. They suggested that as currently drafted, section 58(b)(i) means that tenants would have to provide a copy of their tenancy agreement but that tenants may have an assured tenancy based on the behaviour of themselves and their landlord (such as paying and receiving rent), despite not having a written tenancy agreement. Their proposal was that Rule 58(b)(i) should state that the reference must be accompanied by "a copy of the written terms of the tenancy (if any)".

Question 6: Are you content with amendments to the 2016 regulations in relation to regulated tenancy references in Chapter 4?

Responses by respondent type are set out in Table 5 below.

Table 5: Question 6 by respondent type

Yes No Not answered TOTAL
Groups:
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 1 8 20
Individuals 1 - - 1
TOTAL 12 1 8 21

The majority of respondents who answered the question (12 out of 13 respondents) were content with amendments to the 2016 regulations in relation to Assured Tenancy References in Chapter 4. One Representative body respondent (Scottish Association of Landlords & Council of Letting Agents) was not content. As at earlier questions this was because they felt the consultation is not clear about what amendments have been made.

Questions on jurisdictions due to transfer from the Sheriff Court

Question 7: Do you agree with the procedure for applications under the 1984 Act in Chapter 7?

Responses by respondent type are set out in Table 6 below.

Table 6: Question 7 by respondent type

Yes No Not answered TOTAL
Groups:
Campaign or Advice Group 2 1 1 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 2 7 20
Individuals 1 - - 1
TOTAL 12 2 7 21

The majority of respondents who answered the question (12 out of 14 respondents) agreed with the procedure for applications under the Rent (Scotland) Act 1984 in Chapter 7. Two respondents (Scottish Association of Landlords & Council of Letting Agents and Shelter Scotland) disagreed.

Three further comments were made. One of these comments was from a respondent who had agreed at Question 7: Ayr Housing Aid Centre referred back to their comments on Rule 16, at which they noted a concern that Rule 16 may not comply with the European Convention on Human Rights ( ECHR) on a number of levels and that this will be of relevance to Rule 79 - Application for possession.

The Scottish Association of Landlords & Council of Letting Agents also commented on Rule 79. They noted that 79(b)(iv) states that the application must be accompanied by evidence that suitable alternative accommodation is available, but that the 1984 Act allows possession to be awarded in some cases regardless of whether alternative accommodation is available. They therefore suggested that the section should be amended to read "evidence that suitable alternative accommodation is available (if applicable)".

The Scottish Association of Landlords & Council of Letting Agents also sought clarification on whether claims to recover rent arrears from 1984 Act tenants will be dealt with by the FTT under the following circumstances:

  • Where the landlord is also seeking possession of the property.
  • Where the landlord is not seeking possession but simply wishes to recover the arrears and the amount of arrears is £5,000 or below (the simple procedure threshold).
  • Where the landlord is not seeking possession but simply wishes to recover the arrears and the amount of arrears is above £5,000 (the simple procedure threshold).

In their further comment, Shelter Scotland suggested that Rule 82 - Application to adjust recoverable rent, section (b) and Rule 85 - Application to determine the rent level, section (b)1 should amended to include the words "if any".

Question 8: Do you agree with the procedure for applications under the 1988 Act in Chapter 8?

Responses by respondent type are set out in Table 7 below.

The majority of respondents who answered the question (10 out of 14 respondents) agreed with the procedure for applications under the 1988 Act in Chapter 8. Four respondents disagreed ( ARLA Propertymark, Scottish Association of Landlords & Council of Letting Agents, Shelter Scotland and YourPlace).

Table 7: Question 8 by respondent type

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

Six respondents made a further comment, two of whom had agreed at Question 8. SFHA asked if it would be worthwhile to signpost that these regulations will be superseded following the introduction of the Private Residential Tenancy. As at the previous question, Ayr Housing Aid Centre referred back to their comments on Rule 16, although this time in relation to Rule 94 - Application for order for possession.

The four respondents who had disagreed at Question 8 also commented on Rule 94. The following points were made:

  • Shelter Scotland suggested that landlords should have to provide further documentation, including the tenancy agreement and AT5 form, rather than just the documents specified in Rule 94(b).
  • YourPlace suggested that a copy of a Notice to Quit should not be required for applications under s.18 of the 1988 Act. They noted that an AT6 will have been served under s.19 stating the Grounds for possession. The Scottish Association of Landlords & Council of Letting Agents and ARLA Propertymark made a similar point with the Scottish Association of Landlords & Council of Letting Agents suggesting that having to issue a Notice to Quit would confuse tenants and complicate matters as, in order to be valid, it may have to be issued to expire many months after the s.19 (AT6) notice. They suggested that Rule 94(b)(ii) be amended to read "a copy of the notice to quit served by the landlord on the tenant (if applicable)".

Shelter Scotland also commented on Rule 96 - Application to provide written tenancy agreement and weekly rent book. They suggested that:

  • Rule 96(b) should ask the tenant to provide "any relevant documents, including proof of paid rent" instead of "a copy of the rent book or similar document (if any)".
  • Rule 96(c) should state "must be signed and dated by the tenant or a representative of the tenant" instead of stating "must be signed and dated by the landlord or a representative of the landlord".

On Rule 98 - Application for damages for unlawful eviction, Shelter Scotland suggested that it is not clear as to what the correct procedure would be for a common law action for damages for unlawful eviction. They sought clarification on this issue and also proposed that Rule 98 should also allow for damages that are not included in section 36(6A) or (6B) of the 1988 Act.

Finally, the Scottish Association of Landlords & Council of Letting Agents sought clarification on the same range of issues on recovering rent arrears as at Question 7, although this time in relation to the 1988 Act.

Question 9: Do you agree with the procedure for adaptations of rented houses applications in Chapter 9?

Responses by respondent type are set out in Table 8 below.

Table 8: Question 9 by respondent type

Yes No Not answered TOTAL
Groups:
Campaign or Advice Group 2 - 2 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 12 - 8 20
Individuals 1 - - 1
TOTAL 13 - 8 21

All of the 13 respondents who answered the question agreed with the procedure for adaptations of rented houses applications in Chapter 9. There were no further comments.

Question 10: Do you agree with the procedure for tenancy deposit applications in Chapter 10?

Responses by respondent type are set out in Table 9 below.

Table 9: Question 10 by respondent type

Yes No Not answered TOTAL
Groups:
Campaign or Advice Group 2 1 1 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 2 7 20
Individuals - 1 - 1
TOTAL 11 3 7 21

The majority of respondents who answered the question (11 out of 14) agreed with the procedure for tenancy deposit applications in Chapter 10. Three respondents (Scottish Association of Landlords & Council of Letting Agents, Shelter Scotland and an Individual respondent) disagreed. All three of these respondents went on to make a further comment.

Both the Scottish Association of Landlords & Council of Letting Agents and Shelter Scotland commented on Rule 103 - Application for order for payment where landlord has not paid the deposit into an approved scheme.

With reference to Rule 103(b), the Scottish Association of Landlords & Council of Letting Agents noted that the tenant application should be accompanied by a copy of the tenancy agreement. However, they were concerned that the tenant may not have a copy and suggested that similar wording to that in used in Rule 53(b)(i) should be used to cover this scenario [5] . Shelter Scotland had a similar concern and suggested Rule 103(b) should be amended to include the words "if any".

Other comments made were:

  • The Scottish Association of Landlords & Council of Letting Agents suggested that Rule 103 is amended to require tenants to state, and if possible evidence on their application, the date the tenancy ended. They noted that the Tenancy Deposit Schemes (Scotland) Regulations 2011 [6] require applications to be made no later than 3 months after the tenancy has ended.
  • An Individual respondent asked if the intention is to replace the Summary Application procedure in all cases and, if so, whether there will be a cut off point for these procedures.

Question 11: Do you have any other comments on the operational procedures for jurisdictions due to transfer from the sheriff court under Chapters 6-10?

Four respondents made additional comments.

Greenbelt Group made a general comment about whether the intention is to mirror the process and procedures of the Sheriff Court. They reported experience of applicants submitting a high volume of sometimes inadmissible and subjective evidence, including on the day of a hearing. They felt that this does not support a constructive panel hearing and that it prejudices not only the property factor but also the outcome. Their preference would be to work to a strictly managed set of procedures and for these to be applied consistently.

Shelter Scotland's concern also focused on evidence to be submitted but, in their case, was that it may be difficult for tenants to source some of the evidence they would be required to submit. For example, they highlighted that a tenant might not know their landlord's name or contact details if they had only ever dealt with a letting agent and their landlord is not registered. They suggested that tenants should not be adversely affected if the letting agent fails to provide the necessary information. They also reported that some tenants are likely to be unaware that that letting agents have to provide such information when the tenant requests it in writing, and that this applies not only to Chapters 6-10 but to a wide variety of applications under Chapters 1-11 of the draft regulations.

Two specific comments were made:

  • An Individual respondent asked what would happen about warrant dues already paid and expenses which would have been awarded if cases are transferred mid-stream.
  • YourPlace suggested that the truncation of 'Note 2 to tenant' on the AT6 form means that it no longer makes sense.

Question 12: Do you agree with the procedure for letting agent applications in Chapter 5?

Responses by respondent type are set out in Table 10 below.

Table 10: Question 12 by respondent type

Yes No Not answered TOTAL
Group
Campaign or Advice Group 1 - 3 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 11 - 9 20
Individuals 1 - - 1
TOTAL 12 - 9 21

All 12 respondents who answered the question agreed with the procedure for letting agent applications in Chapter 5. There were no further comments.

Question 13: Do you agree with the procedure for applications under the 2016 Act?

Responses by respondent type are set out in Table 11 below.

Table 11: Question 13 by respondent type

Yes No Not answered TOTAL
Group
Campaign or Advice Group 1 1 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 10 2 8 20
Individuals - 1 - 1
TOTAL 10 3 8 21

The majority of those respondents who answered the question (10 out of 13) agreed with the procedure for applications under the 2016 Act. Three respondents (Scottish Association of Landlords & Council of Letting Agents, Shelter Scotland and an Individual respondent) disagreed.

Although there was no opportunity to provide a further comment at Question 13, two respondents referred to Question 13 at another question.

The Scottish Association of Landlords & Council of Letting Agents sought clarification on the same range of issues on recovering rent arrears as at Question 7, although this time in relation to the 2016 Act.

An Individual respondent asked whether landlord applications should be covered as they are included in the 2016 Act.

Question 14: Are there any particular equality issues that you think we should consider in relation to the operational procedures as the Housing and Property Chamber expands in December 2017?

Seven respondents made a comment, with West Strathclyde Regional Network - Region 7 noting the need to ensure legislative compliance in this area.

In line with their comments at other questions, Greenbelt Group raised concerns about lack of equivalence of treatment of the applicant and the defendant. In particular, they highlighted the resources they may need to employ and how their costs can escalate.

In terms of access to the FTT, suggestions around what the Scottish Government needs to consider were:

  • Long-distance access, given that many landlords do not reside in Scotland (Individual respondent). Also, offering out of working-hours options, including allowing people to attend a hearing without needing to take time off work (Individual respondent and Shelter Scotland).
  • Ensuring that the option of hearings held by phone does not inadvertently disadvantage those living in rural or remote areas. It was suggested that this should be monitored (Homeless Action Scotland).
  • How it will be ensured that all parties to a hearing understand the proceedings and can participate in them. There were calls for further regulations around what users of the FTT can expect, including, for example, the provision of translators and sign language interpreters (Shelter Scotland).
  • The physical accessibility of venues for FTT hearings, including ensuring that they are wheelchair accessible ( SFHA and Shelter Scotland).
  • Considering the needs of people with mental health difficulties ( SFHA).

More generally, Shelter Scotland suggested that there will be considerable onus on the user to understand their rights and responsibilities and follow the processes. They suggested this will be particularly difficult for people who have disabilities and that it will be important to ensure that the necessary advice and support is available to them. They noted the connection to the publicly-funded legal assistance which is the focus of the remainder of this consultation.

Other comments made were that:

  • The FTT should, as far as possible, appoint a diverse range of people to the FTT in order to promote inclusion. This approach could be set out in a Diversity Strategy or Statement ( SFHA).
  • The Scottish Government needs to clarify whether a reason will be given as to why an application has been refused because this is currently not clear from the legislation ( ARLA Propertymark).

Contact

Email: Ged Millar, Ged.Millar@gov.scot

Phone: 0300 244 4000 – Central Enquiry Unit

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG