The First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2017

Made: 5th October 2017

Laid before the Scottish Parliament: 6th October 2017

Coming into force: 1st December 2017

In accordance with paragraph 4(3) of schedule 9 of that Act, they have consulted the President of Tribunals and such other persons as they have considered appropriate.

Citation and commencement

1

• (1) These Regulations may be cited as the First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2017 and the Rules set out in the schedule may be cited as the First-tier Tribunal for Scotland Housing and Property Chamber Rules of Procedure 2017.

• (2) These Regulations come into force on 1st December 2017.

Application of the First-tier Tribunal for Scotland Housing and Property Chamber Rules of Procedure 2017

2

The First-tier Tribunal for Scotland Housing and Property Chamber Rules of Procedure 2017 set out in the schedule apply to proceedings before the First-tier Tribunal for Scotland Housing and Property Chamber when exercising the functions transferred or allocated to it by—

• (a) regulation 3(1) of the First-tier Tribunal (Transfer of Functions of the Homeowner Housing Committees) Regulations 2016[^f00002];

• (b) regulation 3(1) of the First-tier Tribunal (Transfer of Functions of the Homeowner Housing Panel) Regulations 2016[^f00003];

• (c) regulation 3(1) of the First-tier Tribunal (Transfer of Functions of the Private Rented Housing Committees) Regulations 2016[^f00004];

• (d) regulation 3(1) of the First-tier Tribunal (Transfer of Functions of the Private Rented Housing Panel) Regulations 2016[^f00005];

• (e) the Rent (Scotland) Act 1984[^f00006];

• (f) the Housing (Scotland) Act 1988[^f00007];

• (g) the Antisocial Behaviour etc. (Scotland) Act 2004[^f00008];

• (h) the Housing (Scotland) Act 2006[^f00009];

• (i) the Property Factors (Scotland) Act 2011[^f00010];

• (j) the Tenancy Deposit Schemes (Scotland) Regulations 2011[^f00011];

• (k) the Housing (Scotland) Act 2014[^f00012]; or

• (l) the Private Housing (Tenancies) (Scotland) Act 2016[^f00013].

Transitional provision

3

Any application to the First-tier Tribunal for Scotland Housing and Property Chamber received prior to 1st December 2017 is to be treated as if it were received on or after 1st December 2017.

Revocation

4

Regulations 1, 2 and 4 and schedules 1 and 3 of the First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2016[^f00014] and the First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Amendment Regulations 2017[^f00015] are revoked.

SCHEDULE — The First-tier Tribunal for Scotland Housing and Property Chamber Rules of Procedure 2017

PART 1 — Rules common to all proceedings before the First-tier Tribunal

Application and interpretation

1

• (1) Subject to paragraph (1A), Part 1 of the Rules applies to all proceedings before the First-tier Tribunal.

• (1A) Part 1 of the Rules applies to an appeal under section 24G of the 1988 Act or section 33C of the 2016 Act subject to the modifications in rule 114.

• (2) In these Rules—

• “the 1984 Act” means the Rent (Scotland) Act 1984;

• “the 1988 Act” means the Housing (Scotland) Act 1988;

• “the 2004 Act” means the Antisocial Behaviour etc. (Scotland) Act 2004;

• “the 2006 Act” means the Housing (Scotland) Act 2006;

• “the 2007 Act” means the Bankruptcy and Diligence etc. (Scotland) Act 2007,

• “the 2011 Act” means the Property Factors (Scotland) Act 2011;

• “the 2011 Regulations” means the Tenancy Deposit Schemes (Scotland) Regulations 2011;

• “the 2014 Act” means the Housing (Scotland) Act 2014;

• “the 2016 Act” means the Private Housing (Tenancies) (Scotland) Act 2016;

• “adjourn” means, in relation to a hearing, a decision by the First-tier Tribunal to suspend after it has begun and continue on a later date;

• “appeal” means the exercise of a right of appeal under section 46 of the Tribunals Act;

• “application” means an application made to the First-tier Tribunal and includes an assured tenancy reference and a regulated tenancy reference and “applicant” is to be construed accordingly;

• “assured tenancy reference” means—a reference by a landlord or a tenant under section 17(3) of the 1988 Act of a notice which has been served under section 17(2) of that Act (notice proposing terms of a statutory assured tenancy and, if appropriate, an adjustment of the rent to take account of the proposed terms);a reference by a tenant under section 24(3) of the 1988 Act of a notice which has been served under section 24(1) of that Act (notice proposing an increase in rent under an assured tenancy); an appeal by a tenant or landlord under section 24B of the 1988 Act against an order made by the rent officer under section 24A(2) or (3) of that Act (consideration of notice to increase rent by rent officer), a reference by a tenant under section 25A(4)(a) of the 1988 Act of a notice which has been served on the tenant under section 25A(2) of that Act (notice proposing a new rent to take account of any sums payable by the tenant to the landlord in respect of council tax); oran application by a tenant under section 34(1) of the 1988 Act (application for a determination of the rent which the landlord might reasonably be expected to obtain under a short assured tenancy);

• “case management discussion” includes any resumed discussion;

• “chairing member” means the chairing member of the First-tier Tribunal and is the legal member where a hearing is heard by two or more members;

• “Chamber President” means Chamber President of the First-tier Tribunal;

• “charge for removing” means the charge for removing in the form set out in the schedule of the Removing from Heritable Property (Form of Charge) (Scotland) Regulations 2011,

• “electronic communication” has the meaning given to it by section 15(1) of the Electronic Communications Act 2000[^f00016] and “electronic signature” has the same meaning as in section 7 of that Act[^f00017];

• “First-tier Tribunal” means the First-tier Tribunal for Scotland Housing and Property Chamber;

• “hearing” includes an oral hearing, any hearing conducted in whole or in part by video link, telephone or other means of instantaneous communication and any resumed hearing;

• “interested party” means a person other than the applicant or any other party on whom the First-tier Tribunal has ordered the proceedings before it to be served;

• “lay representative” means a representative of a party who is not a legal representative;

• “order for removing from heritable property” has the same meaning as “a decree for removing from heritable property” given in section 214(1) of the 2007 Act,

• “party” includes, unless the context requires otherwise, any homeowner, property factor, tenant, former tenant, landlord, former landlord, third party applicant, former residential occupier, lessor, lessee, letting agent and any other person permitted by the First-tier Tribunal to be a party to proceedings;

• “postpone” means, in relation to a hearing, a decision by the First-tier Tribunal to defer to a date later than that originally set by the First-tier Tribunal;

• “proceedings” means the proceedings in relation to the making of a decision under these Rules;

• “regulated tenancy reference” means a matter which is referred by a rent officer to the First-tier Tribunal under paragraph 7 or 12 of schedule 5 of the 1984 Act or an application for a certificate of fair rent which is referred by a rent officer to the First-tier Tribunal under paragraph 2 or 6 of schedule 6 of the 1984 Act or a Part VII contract;

• “rent officer” has the meaning given by section 43 of the Rent (Scotland) Act 1984,

• “representative” means a lay representative or a legal representative of a party;

• “review” means the internal review provided for by section 43(1) of the Tribunals Act;

• “service by advertisement” means service in accordance with rule 6A.

• “the Tribunals Act” means the Tribunals (Scotland) Act 2014; and

• “writing” includes electronic communication which has been recorded and is consequently capable of being reproduced; and this applies also to “written”.

The overriding objective

2

• (1) The overriding objective of the First-tier Tribunal is to deal with the proceedings justly.

• (2) Dealing with the proceedings justly includes—

• (a) dealing with the proceedings in a manner which is proportionate to the complexity of the issues and the resources of the parties;

• (b) seeking informality and flexibility in proceedings;

• (c) ensuring, so far as practicable, that the parties are on equal footing procedurally and are able to participate fully in the proceedings, including assisting any party in the presentation of the party’s case without advocating the course they should take;

• (d) using the special expertise of the First-tier Tribunal effectively; and

• (e) avoiding delay, so far as compatible with the proper consideration of the issues.

Effect of the overriding objective

3

• (1) The Chamber President and the First-tier Tribunal must seek to give effect to the overriding objective when—

• (a) exercising any power under these Rules; and

• (b) interpreting any rule.

• (2) In particular the Chamber President and the First-tier Tribunal must manage the proceedings in accordance with the overriding objective.

• (3) The parties must assist the Chamber President or the First-tier Tribunal to further the overriding objective.

Application

4

An application to the First-tier Tribunal must be in writing and may be made using a form obtained from the First-tier Tribunal.

Requirements for making an application

5

• (1) An application is held to have been made on the date that it is lodged if, on that date, it is lodged in the manner as set out in rules 43, 47 to 50, 55, 59, 61, 65 to 70, 72, 75 to 91, 93 to 95, 98 to 101, 103 or 105 to 111, as appropriate.

• (2) The Chamber President or another member of the First-tier Tribunal, under the delegated powers of the Chamber President, must determine whether an application has been lodged in the required manner by assessing whether all mandatory requirements for lodgement have been met.

• (3) If it is determined that an application has not been lodged in the prescribed manner, the Chamber President or another member of the First-tier Tribunal, under the delegated powers of the Chamber President, may request further documents and the application is to be held to be made on the date that the First-tier Tribunal receives the last of any outstanding documents necessary to meet the required manner for lodgement.

• (4) Where the address of a party is not known to the person making an application under these Rules, the applicant must state this in the application and complete a request for service by advertisement in accordance with paragraph (5).

• (5) Any request for service by advertisement must provide details of any steps taken to ascertain the address of the party and be accompanied by a copy of any notice required under these Rules which the applicant attempted to serve on the other party and evidence of any attempted service.

• (6) The First-tier Tribunal may direct any further steps which should be taken before the request for service by advertisement will be granted.

• (7) Any relevant notice period begins on the date the advertisement is published in accordance with rule 6A.

• (8) The First-tier Tribunal must not grant the request where any—

• (a) documents requested under paragraph (3) are not received, or

• (b) further steps directed under paragraph (6) are not taken,

within such reasonable period from the date of such request or such direction as the Chamber President considers appropriate.

Service

6

• (1) Where any formal communication requires to be served on any person, it is deemed to be served if—

• (a) it is sent to the proper address of the person—

• (i) by a registered post service (as defined in section 125(1) of the Postal Services Act 2000[^f00018]); or

• (ii) by a postal service which provides for the delivery to be recorded; or

• (b) it is sent to the email address provided by the person.

• (2) Where a formal communication is served as mentioned in paragraph (1) it is to be taken to have been received 48 hours after it is sent unless—

• (a) the proper address is outwith the United Kingdom; or

• (b) the contrary is shown.

• (3) Where any formal communication requires to be served upon the parties, it is deemed to have been served on a party if it is served on a person who is acting as the representative of that party.

• (4) A member of staff of the Scottish Courts and Tribunals Service may send a formal communication on behalf of the First-tier Tribunal.

• (5) Where a party, a representative or an interested party provides an email address, the First-tier Tribunal is to communicate using that address until the party, representative or interested party requests that another method of communication be used.

• (6) Where an action for removing is against a tenant or occupier in possession of heritable property and the name of the tenant in possession or occupier is not known and cannot reasonably be ascertained, the requirement for the tenant’s or occupier’s name set out in rule 65(a)(iii), 66(a)(iii), 77(a)(iii), 79(a)(iii) or 109(a)(iii) is waived and any formal communication may be served on “the Occupier”.

Signature of document

7

A requirement in these Rules for a document to be signed by a person is satisfied, in the case of a document which is transmitted by electronic communication in accordance with these Rules, by electronic signature of the person who is required to sign the document.

Rejection of application

8

• (1) The Chamber President or another member of the First-tier Tribunal under the delegated powers of the Chamber President, must reject an application if—

• (a) they consider that the application is frivolous or vexatious;

• (b) the dispute to which the application relates has been resolved;

• (c) they have good reason to believe that it would not be appropriate to accept the application;

• (d) they consider that the application is being made for a purpose other than a purpose specified in the application; or

• (e) the applicant has previously made an identical or substantially similar application and in the opinion of the Chamber President or another member of the First-tier Tribunal, under the delegated powers of the Chamber President, there has been no significant change in any material considerations since the identical or substantially similar application was determined.

• (2) Where the Chamber President, or another member of the First-tier Tribunal, under the delegated powers of the Chamber President, makes a decision under paragraph (1) to reject an application the First-tier Tribunal must notify the applicant and the notification must state the reason for the decision.

Notification of acceptance of application

9

• (1) Where rule 8 does not apply, the First-tier Tribunal must, as soon as practicable, give notice to each party—

• (a) setting out the detail of the application in such manner as the First-tier Tribunal thinks fit; and

• (b) specifying the day by which any written representations must be made.

• (2) The day specified for the purposes of paragraph (1)(b)—

• (a) must be at least 14 days after the day on which the notice is given; and

• (b) may, at the request of any party, be changed to such later day as the First-tier Tribunal thinks fit.

• (3) The First-tier Tribunal must notify each party of a change mentioned in paragraph (2)(b).

Representatives

10

• (1) A party may be represented in any proceedings by a representative whose details must be notified to the First-tier Tribunal prior to any hearing.

• (2) A party may disclose any document or communicate any information about the proceedings to that party’s lay representative or legal representative without contravening any prohibition or restriction on disclosure of the document or information.

• (3) Where a document or information is disclosed under paragraph (2), the representative is subject to any prohibition or restriction on disclosure in the same way that the party is.

• (4) Anything permitted or required to be done by a party under these Rules, a practice direction or an order may be done by a lay representative or legal representative, except the signing of an affidavit or precognition.

• (5) The First-tier Tribunal may order that a lay representative is not to represent a party if—

• (a) it is of the opinion that the lay representative is an unsuitable person to act as a lay representative (whether generally or in the proceedings concerned); or

• (b) it is satisfied that to do so would be in the interests of the efficient administration of justice.

• (6) Where a representative begins to act for a party after the application is made, the representative must immediately notify the First-tier Tribunal and any other party of that fact.