Enforcing the repairing standard

The First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2016/339 sets out the procedure for making an application.

The landlord must have been notified that work was required to the property before an application can be made.[1]

The First Tier Tribunal Housing and Property Chamber website has a sample letter which can be downloaded and used to notify the landlord of repairs.

The letter should be sent by recorded delivery and a copy kept.

A tenant cannot make an application if s/he is a tenant of a local authority, a housing association or co-operative, or Scottish Water. [2] See the section on Statutory rights and responsibilities for more information on the relevant legislation for these types of tenancies.

Applications can be made by either the tenant or by the local authority.

If the local authority raise the application then the tenant will be either a participating person or an interested party:

Participating person - this is where a tenant takes an active role in the whole process and can submit written evidence to the committee, present at a hearing, call witnesses and take part in any appeal.

Interested party - if the tenant chooses not to take an active role, then they are classed as a interested party. They should receive a copy of any decision made and can attend the hearing. But they cannot submit written submission, evidence or be part of any appeal.

If the repairs are still not carried out within a reasonable time, an application can then be made to the First Tier Tribunal Housing and Property Chamber. The application must be made in writing. [3] An application form can be downloaded from the First Tier Tribunal Housing and Property Chamber website.

The application should include all of the information needed for the First Tier Tribunal Housing and Property Chamber to assess the application. This includes:

• the name and address of the tenant

• the name, address and profession of any representative of the tenant

• if the local authority is applying then they need to indicate if the tenant is participating

• the name and address of the landlord, or of any representative of the landlord

• the landlord registration number, if known

• that the application is to be made under s.22(1) of the Act

• the nature of the work requiring to be done

• evidence that the landlord has been notified of the work.

A copy of the lease, tenancy agreement or the rent book should be provided with the application. If the tenant is not able to provide this, then as much information as possible should be given regarding the tenancy. 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 through unreasonable behaviour in the conduct of the case has put any other party to unnecessary or unreasonable expense. Exercise of this power is not linked to the outcome of the case. [4]

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 has 14 days from the date of receipt of a valid application to 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:

• considers it to be vexatious or frivolous

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

• or the dispute has already been resolved.

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 Referral, Inspection and Hearing.  This notifies all parties of the date for the inspection and subsequent Hearing, and asking for any written representations to be submitted.

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 5 working days before the hearing. Any changes to submissions after this date can only be made with the consent of the tribunal.

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. [5] 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. [6]

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

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 breaches of the repairing standard 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 10 working 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:

• a legal member

• a legal member and one ordinary member

• a legal member and two ordinary members

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. Either party can amend /her written statements up to five working days prior to the hearing date. Amendments need to be made in writing and the tribunal will decide whether or not to allow the amendment.  However, where an amendment raises a new issue of disrepair, the tribunal must approve this and ensure that the landlord has been notified of the work needing to be done as a result of the disrepair.

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

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 has to made in writing. The form can be obtained from the First Tier Tribunal Housing and Property Chamber.

The tribunal will not usually give a decision on the day. It will be issued in writing after the hearing along with a statement of reasons for the decision. The tribunal aim to have the decision issued to the parties within 21 days after the date of the decision. However sometimes this may take longer if the tribunal require more time to consider the issues.

If the Tribunal find the landlord has complied with the duty they will issue a decision confirming this to all parties and the case will be closed.

If the landlord has failed to comply with the duty, but lacks the necessary rights (of access or otherwise) to carry out the works, the Tribunal will serve notice of the Failure to Comply (lack of rights) on the Local Authority and the case will be closed.

If the Tribunal decide that a landlord has failed to comply with the duty and has the necessary rights to carry out the work, then the Tribunal must make a “repairing standard enforcement order” (RSEO) requiring the landlord to carry out the work.