Tribunal procedures

An order made by the tribunal may be enforced as if it were an extract decree bearing warrant for execution by the sheriff court. [1]

When exercising any powers, interpreting any rules and managing the proceedings the tribunal is required to meet the overriding objective to deal with proceedings justly. This means dealing with proceedings in a way which is: [2]

• Proportionate

• Informal and flexible

• Aiming for equal footing

• Using expertise effectively

• Avoiding delay as far as is possible

Applications must be made in writing and may be made using forms provided by the tribunal service. [3]

The application should include all the information needed for the tribunal to assess the application and should advise on which basis the application is being made. For example, an application to enforce the repairing standard is made under s.22(1) Housing (Scotland) Act 2006. In this case evidence would also need to be provided that the landlord has been notified of the repairs. See the relevant section for details of specific details required for each type of application.

A copy of the lease, tenancy agreement or the rent book is usually required to be submitted with the application. If the tenant is not able to provide this, then as much information as possible should be given regarding the tenancy.

Clients should note certain actions have their own specific requirements. This means that where there is more than one issue, each may need its own application. Advisers should check the requirements for each action or part of an action carefully.

Applying to the First Tier Tribunal Housing and Property Chamber is free of charge. However, the tribunal has the power to award expenses against a party where that party has put any other party to unnecessary or unreasonable expense through unreasonable behaviour in the conduct of the case. [4] Exercise of this power is not linked to the outcome of the case.

The tribunal will be able to pay appropriate allowances and expenses for a person to attend the hearing or to provide a report regarding the state of repair of the property, although the landlord and tenant will only be able to be paid reasonable travel expenses to the hearing. An application for expenses must be made in writing. The form can be obtained from the First Tier Tribunal Housing and Property Chamber.

Where any formal document requires to be served on any person it is deemed to be served if: [5]

• It is sent to the proper address by registered post or

• It is sent by an email address provided by the person.

• It is also held to be served on a party where is it is served to that person’s representative.

• in actions for removing, where the tenant's name is not known it can be validly served on 'the occupier'

• Communications served as above are deemed to have been received within 48 hours.

• Where the party's address is unknown there is scope for service to be made by advertisement on the website of the First Tier Tribunal

The First Tier Tribunal Housing and Property Chamber administration department will acknowledge receipt of the application and check that it contains all the required evidence. If it is complete they will pass this to the President to consider.

The President (or delegated tribunal member) will decide whether the application can be referred to a tribunal or whether it should be rejected. A valid application will only be rejected if the President: [6]

• considers it to be vexatious or frivolous

• or the dispute has already been resolved.

• or they have good reason to believe it would not be appropriate to accept the application

• or they consider the application is being made for a purpose other than the purpose specified in the application

• or that the applicant has recently made an identical or very similar application

If the application is rejected, notification must be sent to the applicant, stating the reasons for the rejection and explaining the procedure for appealing against the decision.

If the President refers the application to a tribunal, all parties will be sent a Notice of Acceptance of Application. This notifies all parties of the details of the application and will specify the date by which any written representations must be made. This must be at least 14 days after the date the notice was sent and may be changed by request to a later date if either party requests this and the tribunal agrees.

Where a client has been issued with a Notice of Acceptance of Application as a defendant they will be notified of the date by which any written representations must be made.

Each defence will depend on the facts of the case. Advisers can check the relevant section in Shelter Legal for the requirements and tactics for different types of actions.

Advisers should pay particular care where any defence relies upon a counter claim or argument which itself may require an order from the tribunal. Where the landlord raises claim for rent arrears for example,there may be repairing issues, or compensation for damages which could be offset against money owed. However, in such cases the client should be advised to ensure they raise their own action prior to any cut off date for written representations and also ensure that they ask to have the actions conjoined or to run concurrently.

This was confirmed in a case where a tenant sought a reduction of a lease as part of a written submission issued during an eviction case. The Upper Tribunal held that whilst it 'may' be competent to seek a reduction (though this itself has not yet been tested) the information in the written submission did not amount to ‘an application’ under the tribunal procedural rules. A tenant seeking an order for reduction, would need to raise their own application. [7]

A party may be represented by a solicitor or a lay representative. The details of this person must be notified to the tribunal prior to any hearing. The tribunal have the power to prevent a lay representative from acting where they believe the person is unsuitable or that they are satisfied that it is in the interests of justice to do so. [8]

A party with no representation can act themselves or they can be accompanied by a ‘supporter’. The supporter is not allowed to represent the party but can assist by providing moral support, assisting with paperwork or making notes and can quietly advise on points of law or procedure or other issue which the party may wish to raise.

An applicant or landlord who wants to change or add to their written submissions can do so by writing to the tribunal at any time up to 7 working days before the hearing. Any changes to submissions after this date can only be made with the consent of the tribunal. Where there is no new issue (for example to amend the sum due in rent arrears) this can be done up to 14 days prior to the hearing or case management discussion.  [9]

The applicant can withdraw their application at any time. If the tenancy is terminated lawfully, the tenant's application will be treated as having been withdrawn. Applications by the local authority however are not treated as withdrawn if the tenancy is terminated and would continue as normal unless the local authority requests the application be withdrawn. The Tribunal can choose whether to accept the withdrawal and abandon the application, or proceed to determine the application.

The tribunal has the power to make inquiries and can require the parties to attend a hearing or produce documents or information. [10] If a party is served with a Direction from the tribunal requiring attendance or further information then they must comply with that, otherwise they may be guilty of a criminal offence and could be fined. It is also an offence to knowingly give false information to the tribunal. [11]

When making Directions the tribunal must take into account the ability of parties to comply.

The tribunal may order a case management discussion which could be held at a hearing venue or via conference call or videoconferencing. Each party must be given reasonable notice of the date time and place for this. This power may be used where it might be helpful for the tribunal to explore how the parties dispute may be resolved, for example to identify whether there are facts which the parties agree on and to discuss whether a hearing is required.

The tribunal has the power to determine the proceedings without a hearing so long as written submissions have been made, if it can make sufficient findings to determine the case and if to do so will not be contrary to the interests of the parties. [12]

Where the case is identified as being suitable for mediation this will be brought to the parties’ attention. If both parties consent the proceedings can be adjourned or postponed pending the outcome of this. [13]

The tribunal has the power to make any enquiries as are required. They can also require further evidence to be presented and/or require witnesses to attend a hearing. [14]

Where it is relevant to the application, an inspection of the property may be carried out before or during the hearing or after an adjournment of the hearing, or at such stage in relation to consideration of the written representations as the First-tier Tribunal shall determine.

The tribunal will carry out an inspection at the property. The tenant will be expected to allow access and the landlord can choose to attend, as can either party’s representative. The tribunal will not be carrying out full survey of the property and will focus on the issues reported. However, if they find other issues during the inspection they can take action regarding this if they consider it appropriate to do so.

The First Tier Tribunal Housing and Property Chamber will give at least 14 days’ notice to the applicant and the landlord of the date, time and place of the hearing, unless there are exceptional circumstances.

The tribunal may be composed of: [15]

• a legal member

• a legal member and one ordinary member

• a legal member and two ordinary members

• In the case of an application by a landlord for assistance in exercising their right of entry, the tribunal may consist of an ordinary member alone.

During the hearing, the parties will be heard in order along with any evidence or witnesses that are to be called.

Either party can apply for an adjournment of a hearing, but this will only be granted where it is practicable and if there is good reason to do so. [16] This power is discretionary but making a decision the tribunal must take into account all relevant factors. [17]

If either party is absent at the hearing, the tribunal can decide to go ahead with the hearing. [18]

The tribunal have the power to exclude any person disrupting proceedings. [19]