Debt Advice Handbook Scotland - 1st editionChapter 8: Housing debt2. Private rented sector Application to the tribunal: common rules
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Application to the tribunal: common rules
Some rules apply to assured and short assured tenancies, and some apply to private residential tenancies. This section concentrates on the rules in common.
The rules common to all proceedings are in Part 1 of the Schedule to The First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2017.
To begin an application for the client’s eviction, the landlord must make an application to the tribunal.
All applications for eviction orders, for all tenancy types, are made to the tribunal in Form E and Form F.
The tribunal then looks at the application and decides what steps to take next.
The overriding objective of the tribunal
The overriding objective of the tribunal is to deal with the proceedings ‘justly’.1Sch 2 para 2 FTTSHPC(P) Regs This includes:
    •dealing with the proceedings in a proportionate manner to the complexity of the issues and the resources of the parties;
    •seeking informality and flexibility in proceedings;
    •ensuring, so far as practicable, that the parties are on equal footing procedurally and can participate fully in the proceedings, including assisting any party in the presentation of their case without advocating the course they should take;
    •using the special expertise of the First-tier Tribunal effectively;
    •avoiding delay, so far as compatible with the proper consideration of the issues.
 
1     Sch 2 para 2 FTTSHPC(P) Regs »
Service to the client
Any communication served on the client must be by registered post, recorded delivery or email with the effective date being 48 hours after service, to allow time for delivery.1Sch r6 FTTSHPC(P) Regs
 
1     Sch r6 FTTSHPC(P) Regs »
Rejection or acceptance of an application
The tribunal can review the application and decide to accept or reject it.
An application can be refused if:1Sch r8 FTTSHPC(P) Regs
    •it is considered to be frivolous or vexatious;
    •the dispute has already been resolved;
    •the tribunal deems it not appropriate;
    •there has already been an identical application.
Where accepted, the tribunal notifies all parties and gives them appropriate time to respond, usually at least 14 days.
 
1     Sch r8 FTTSHPC(P) Regs »
Lay representatives, supporters and exclusions
A client may have a lay representative or a ’supporter’ during the proceedings. Where this is the case, the tribunal should be notified before any hearing takes place.
The representative can participate in the hearing as though they were the client, with some exceptions.
A supporter cannot participate as much as a representative and they cannot represent the client. They can offer moral support and take notes.
The tribunal can order that a person is not to act as a supporter or lay representative of a client if:1Sch rr10 and 11 FTTSHPC(P) Regs
    •it believes the supporter is an unsuitable person to act as a supporter/representative (whether generally or in the proceedings concerned); or
    •it is satisfied that to do so is in the interests of the efficient administration of justice.
Ensure that if your client needs a representative or supporter that they have had some training on the procedures of the tribunal.
 
1     Sch rr10 and 11 FTTSHPC(P) Regs »
Directions from the tribunal
The tribunal can issue ’directions’ to any of the parties about the conduct or proceedings of the case and can be to:1Sch r16 FTTSHPC(P) Regs
    •set and vary time limits;
    •provide more information;
    •require a party to lodge evidence.
 
1     Sch r16 FTTSHPC(P) Regs »
Tribunal options
There are options open to the tribunal to try to resolve the situation before it proceeds to the hearing stage. This will be decided on a case-by-case basis.
Adjournment or postponement is also an excellent tool to buy more time to workout a solution for your client.
 
Case management discussion
The purpose of a case management discussion is to enable the First-tier Tribunal to explore how the parties’ dispute may be efficiently resolved, including by:
    •identifying the issues to be resolved;
    •identifying what facts are agreed between the parties;
    •raising with parties any issues it requires to be addressed;
    •discussing what witnesses, documents and other evidence will be required;
    •discussing whether a hearing is required;
    •discussing an application to recall a decision.
The First-tier Tribunal can do anything at a case management discussion which it can do at a hearing, including making a decision.1Sch r17 FTTSHPC(P) Regs
The tribunal has the powers to decide that it can proceed without a hearing, if it thinks that it has enough information and the parties are in agreement.2Sch r18 FTTSHPC(P) Regs
 
Mediation
The tribunal can offer the choice of mediation between the parties to avoid having a full hearing.
If the parties both agree to the offer, the tribunal suspends the adjournment or postponement of the application pending the outcome.3Sch r19 FTTSHPC(P) Regs
The tribunal cannot offer validation or recommendation of any particular mediation service or refer parties to a mediator.
Scottish Mediation is the professional body for mediators. It maintains the Scottish Mediation Register of Mediators. Parties who want to use mediation can find a relevant mediator by accessing the register at scottishmediation.org.uk/find-a-mediator and by selecting ‘Housing and Property’ in the ‘Types of Mediation’ box.
There may be a charge for mediation.
 
Inquiries and giving evidence
The tribunal can ask the parties to appear at a hearing and answer questions or to provide evidence. This includes oral evidence at the hearing stage.
It may also ask the parties to lodge a list of documents referred to in the case and a list of any witnesses the client or creditor wishes to use, at least seven days before a hearing.4Sch rr20, 21 and 22 FTTSHPC(P) Regs
All parties should receive a copy of any documents or evidence produced.
 
1     Sch r17 FTTSHPC(P) Regs »
2     Sch r18 FTTSHPC(P) Regs »
3     Sch r19 FTTSHPC(P) Regs »
4     Sch rr20, 21 and 22 FTTSHPC(P) Regs »
Hearings
When all other avenues have been explored and no agreement has been made, the case proceeds to the hearing stage.
Notice of a hearing should be notified to the client at least 14 days before the hearing is due.1Sch r24(2) FTTSHPC(P) Regs
The hearing must be held in public unless the tribunal, on its own initiative or an application by a party, decides it is necessary to do otherwise in the interests of justice.
A party or their representative (but not a supporter) may conduct the party’s case. They can make representations, call witnesses, give evidence on the client’s behalf and cross-examine any witness called by another party.
During the hearing, the chair of the tribunal must introduce the parties to the tribunal members, explain the purposes of the hearing and ensure the parties to the hearing both understand and can participate in the hearing.2Sch r25 FTTSHPC(P) Regs
 
1     Sch r24(2) FTTSHPC(P) Regs »
2     Sch r25 FTTSHPC(P) Regs  »
Decisions
Where there are two or more tribunal members, the decision must be made by majority vote.1Sch r26 FTTSHPC(P) Regs In the event of a tie, the chair has the casting vote.
The tribunal usually gives written reasons for its decision. Where there is no unanimous agreement, it must give a brief note of the opinion of the minority members.2Sch r26 FTTSHPC(P) Regs
This may be useful to look at if your client is considering recall or appeal.
 
1     Sch r26 FTTSHPC(P) Regs »
2     Sch r26 FTTSHPC(P) Regs »
Dismissal, adjournment or postponement
The tribunal can dismiss the case where the tribunal decides the applicant has not complied with any orders or co-operated with the tribunal so that it cannot properly deal with the case.1Sch r27 FTTSHPC(P) Regs This could be for not providing evidence or information about the application on time.
It can also decide to adjourn or postpone the case, either on its own or on application from either party.2Sch r28 FTTSHPC(P) Regs
Where a party applies for an adjournment or postponement of a hearing, they must:
    •if practicable, notify all other parties of the application for an adjournment or postponement; and
    •show good reason why an adjournment or postponement is necessary; and
    •produce evidence of any fact or matter relied on in support of the application for an adjournment or postponement.
The tribunal can adjourn or postpone the hearing to give a party more time to produce evidence if it is satisfied:3Sch r28(4) FTTSHPC(P) Regs
    •the evidence relates to a matter in dispute; and
    •it is unjust to determine the case without the evidence; and
    •where the party has failed to comply with directions for producing evidence, the party must have provided a satisfactory explanation for that failure.
 
1     Sch r27 FTTSHPC(P) Regs  »
2     Sch r28 FTTSHPC(P) Regs »
3     Sch r28(4) FTTSHPC(P) Regs »
Absence of client
Where the client does not respond or appear at a hearing, and if all relevant notices have been properly served, the tribunal can proceed with the application and take any decision it deems fit, including the award of the application.1Sch r29 FTTSHPC(P) Regs
 
1     Sch r29 FTTSHPC(P) Regs »
Recall
Where the client had good cause for not appearing or having representation at the hearing, they can apply to recall the decision. They can only make one application for recall.1Sch r30 FTTSHPC(P) Regs
The application should be made within 14 days of the decision and state why the decision should be recalled and how it is in the interest of justice to do so. A copy must be sent to the other parties. The tribunal can extend this 14-day period if it believes it just to do so.2Sch r30 FTTSHPC(P) Regs
The recall stops any further action or diligence taking place until a new hearing can be heard.
The landlords is asked if they wish to accept the request and, if not, they must inform all parties concerned within 10 days of receiving the notification for recall.
Once the tribunal has the landlord’s reply, it can make a decision to:3Sch r30(9) FTTSHPC(P) Regs
    •grant the application and recall the decision; or
    •refuse the application; or
    •order the parties to appear at a case management discussion.
 
1     Sch r30 FTTSHPC(P) Regs  »
2     Sch r30 FTTSHPC(P) Regs »
3     Sch r30(9) FTTSHPC(P) Regs »
Review
A client can request a review within 14 days of the tribunal’s decision, stating why a review of the decision is necessary. A copy of the application must be sent to all parties who can comment on the application.
The tribunal can accept or reject the application and it can review the application where it deems it fit to do so without a hearing.1Sch r39 FTTSHPC(P) Regs
 
1     Sch r39 FTTSHPC(P) Regs »
Appeal
A client can appeal a decision of the tribunal on a point of law only.
An application must be made in writing and identify the decision of the First-tier Tribunal to which it relates, identify the alleged point(s) of law and state the result they are seeking.1Sch r37(2) FTTSHPC(P) Regs
Clients are advised to seek expert guidance or legal help in this matter.
 
1     Sch r37(2) FTTSHPC(P) Regs »