Part One: Draft First-Tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2017 (The 2017 Rules)
40. Part one of this consultation asks for your views on the draft First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2017, attached at Annex A.
41. Our policy intention is to produce procedural rules which can be easily understood by all parties, and which will create an efficient and just system for determining private rented sector housing disputes.
42. It is proposed that a single set of operational rules will apply across all jurisdictions in the Housing and Property Chamber from December 2017.
So far as possible, a consistent procedure has been adopted for progressing different types of cases before the Chamber. Such an approach ensures parties know what to expect in advance of submitting an application, and the proceedings before the First-tier Tribunal satisfy the requirements for fairness and impartiality in the progress of cases.
43. Parts 1, 2 and 3 of the 2017 Rules will replace the First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2016. We aim to clarify some of the original policy intentions, to reduce complexity and to make it more user-friendly.
PART 1: Procedure common to all proceedings
44. Part 1 aims to set 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.
45. Part 1 applies to anyone with an application lodged in the correct way, no matter what type of housing case is in dispute.
What is new in Part 1?
Rule 16 Case Management Discussion
46. Rule 16 introduces case management discussions. It promotes efficiency and early dispute resolution and fits with the inquisitorial nature of the tribunal. The First-tier Tribunal may do anything at a case management discussion which it may do at an actual hearing, including making a decision. Case management discussions should reduce the number and length of hearings due to the increased understanding of the parties and the First-tier Tribunal.
Rule 17 Power to determine the proceedings without a hearing
47. Rule 17 removes an unnecessary burden in the 2016 rules for the First-tier Tribunal to seek permission from all parties to agree to dispense with a hearing, in certain circumstances. Rule 17(b) provides consistency of approach and efficiency across the Chamber by making clear when the First-tier Tribunal must make a decision without a hearing in relation to a decision made by the First-tier Tribunal.
Rule 24 Duties of Chairing Member at hearing
48. Rule 24 introduces a new duty on the chairing member to explain the tribunal process and ensure that the parties are on an equal footing procedurally. This duty aims to help with transparency and the application of a more consistent and fairer approach across all hearings. It reinforces the overriding objective and user-focused policy intention.
Rules 25 Voting for and Giving a Decision
49. Rule 25 aims to reduce bureaucracy whilst maintaining rights, accessibility, and public interest. It removes the need for a full statement of reasons in relation to correcting, setting aside, and reviewing a decision of the First-tier Tribunal. There is also no need for a full statement of reasons to be prepared where preliminary issues are dealt with following directions of the First-tier Tribunal.
Rule 26 Postponement
50. Rule 26 provides for efficiency in making clear when a tenant may not apply for a postponement of a hearing.
Rule 33 Clerical mistakes and accidental slips or omissions
51. Rule 33 creates a separate correction of clerical mistakes and accidental slips or omissions.
Rules 35 and 36 - Reviews and Appeals
52. The revised review provision at rule 36 ties the review into the permission to appeal stage at rule 34. This should simplify and tighten up the timescales for the review and appeals procedure so as not to elongate the process. This review provision will be generic across the First-tier and Upper Tribunals.
PART 2: Procedure in respect of Homeowner Applications
53. 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.
PART 3: Procedure in respect of Private Rented Applications
Chapters 1-4 amending the 2016 rules
54. Part 3 contains information that an applicant will need to be able to make an application for private rented applications. Each chapter covers a particular jurisdiction and sets out the parties to the application.
55. This Part is the same as the 2016 rules in relation to Chapters 1, 2, 3, and 4 and property repairs, housing conditions and landlord registration.
Chapter 5: Procedure in respect of Letting Agents
56. Chapter 5 contains information that an applicant will need to be able to make an application for letting agent applications when the new regime comes into force early in 2018.
57. These case types include alleged failures to comply with the new letting agent code of practice and registration. We expect case handling will be similar to homeowner applications in Part 2; therefore, the Tribunal procedures follow a similar approach.
Chapters 6-10: Procedures in respect of jurisdictions to transfer to the First-tier Tribunal from the Sheriff court.
58. Chapters 6-10 relates to applications in respect of tenancy related disputes that are currently heard in the Sheriff Court including:
Chapter 6: Procedure for Landlord Registration Applications
Chapter 7: Procedure for applications under the 1984 Act
Chapter 8: Procedure for applications under the 1988 Act
Chapter 9: Procedure for adaptations of rented houses applications
Chapter 10: Procedure for tenancy deposit applications
59. Chapters 7 and 8 include applications where a landlord applies for an order for possession to evict a tenant.
60. Chapter 11 relates to procedures for private residential tenancy applications including evictions. There are some similarities in the procedures for Chapters 7 and 8 above. The new tenancies are due to come into force in December 2017.
61. It is proposed that the 2017 rules will apply across all jurisdictions in the Housing and Property Chamber from 1 December 2017 - the transfer day.
62. It is proposed that cases in progress ( i.e. an application that has been accepted) in the Sheriff Court under Chapters 6-10 on the transfer day will continue in the Sheriff Court until completion or final appeal. Time limits which have started to run prior to commencement of these regulations and have not expired shall continue to apply.
63. We propose to replace the 2016 rules with the 2017 rules on the transfer day. Where an application has been accepted by the First-tier Tribunal prior to 1 December 2017, the 2016 Rules will continue to apply to that application until completion or appeal to the Upper Tribunal.
64. Schedule 2 of the 2016 rules contains forms to be used for certain purposes of the Rent (Scotland) Act 1984 and the Housing (Scotland) Act 1988, and for the purpose of proceedings before the First-tier Tribunal. We will make consequential amendments to the statutory forms in the Schedule in relation to the jurisdictions due to transfer to the Housing and Property Chamber. Consistent with good Equality practice, we propose to make terms gender neutral.
Equality Impact Assessment
65. We are assessing the impact of the 2017 rules on equality communities as the Housing and Property Chamber expands in December 2017. We will develop our EQIA building on our related assessments outlined in paragraphs 66, 67 and 68.
66. This EQIA relates to six sets of regulations which set out the composition of the Housing and Property Chamber of the First-tier Tribunal for Scotland (First-tier Tribunal) and the Upper Tribunal for Scotland (Upper Tribunal); transfer the functions and members of the private rented housing panel (prhp) and homeowner housing panel (hohp) and their respective committees, and create rules of procedure for the Housing and Property Chamber.
67. This EQIA relates to provisions in the Private Rented Housing (Scotland) Act 2011 which give landlords the right to apply to the PRHP for assistance in exercising their right of entry in respect of the repairing standard.
68. This EQIA relates to the Private Rented Housing Panel (Tenant and Third Party Applications) (Scotland) Regulations 2015 which make further provision about the process for making and determining applications.