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The First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2016

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PART 2Procedure in respect of homeowner applications

Application of Part 2 and interpretation

12.—(1) This Part of the Rules applies to proceedings before the First-tier Tribunal when exercising the functions transferred to it by

(a)regulation 3(1) of the First-tier Tribunal for Scotland (Transfer of Functions of the Homeowner Housing Committees) Regulations 2016(1);

(b)regulation 3(1) of the First-tier Tribunal for Scotland (Transfer of Functions of the Homeowner Housing Panel) Regulations 2016(2);

(2) In this Part of the Rules—

the Act” means the Property Factors (Scotland) Act 2011(3);

“application” means an application under section 17(1) of the Act;

“hearing” includes any resumed hearing;

“homeowner’s concern” means the homeowner’s reason for considering that the property factor has failed to carry out the property factor’s duties or, as the case may be, to comply with the section 14 duty;

“the proceedings” means the proceedings in relation to the making of a decision under section 19(1), 21(1) or 23(1) of the Act (including any preliminary issue);

“property factor enforcement order” has the meaning given to it by section 20 of the Act; and

“the section 14 duty” means the duty imposed by section 14 of the Act.

Applications

13.—(1) An application must be in writing.

(2) In addition to the homeowner’s reasons as required by section 17(2) of the Act the application must state—

(a)the name and address of the homeowner;

(b)that the application is made under section 17(1) of the Act;

(c)the name, address and profession of the representative of the homeowner, if any;

(d)the name of the property factor and, if known, the registered number of the property factor;

(e)the address of the property factor or, if known, the name, address and profession of the property factor’s representative, if any; and

(f)the homeowner’s reasons for considering that the property factor has failed to resolve the homeowner’s concern.

(3) The application must be signed and dated by the homeowner or by the representative of the homeowner, if any.

Required attachments to application

14.  The homeowner must attach to the application a copy of—

(a)the notification from the homeowner to the property factor for the purposes of section 17(3)(a) of the Act;

(b)any response in writing provided by or on behalf of the property factor to that notification;

(c)any other correspondence between the homeowner and the property factor relating to the homeowner’s concern; and

(d)any statement of services provided by the property factor to the homeowner as required by the property factor code of conduct.

Notification of referral to the First-tier Tribunal

15.—(1) Where an application is referred to the First-tier Tribunal under section 18(1)(a) of the Act, the First-tier Tribunal must, as soon as practicable after receiving the reference, give notice to each party (or any representative)—

(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).

Hearing applications together

16.—(1) The First-tier Tribunal may direct two or more applications to be heard together where—

(a)the applications have been made by the same homeowner and relate to the same property factor; or

(b)the applications have been made by different homeowners and relate to the same property factor.

(2) The First-tier Tribunal may require the parties to take the necessary steps to enable two or more applications to be heard together.

Inquiries

17.—(1) The First-tier Tribunal may make such inquiries as it thinks fit for the purpose of exercising its functions under the Act.

(2) Inquiries may be made about matters other than those to which an application relates.

(3) Inquiries must include—

(a)consideration of any timeous written representation made by or on behalf of the homeowner and the property factor;

(b)where an oral hearing takes place, hearing any oral representation made by or on behalf of the homeowner or the property factor; and

(c)consideration of any report instructed by the First-tier Tribunal about any of the matters referred to in the application.

(4) A representation is timeous if it is received—

(a)by the day specified in the notice given under rule 15(1)(b);

(b)where a later day is specified in a notice given under rule 15(2)(b), by that later day; or

(c)by any later date if the First-tier Tribunal is satisfied that there is good reason for the delay.

Evidence

18.—(1) The First-tier Tribunal may, for the purposes of making inquiries, require the property factor, the homeowner or any other person—

(a)to attend a hearing of the First-tier Tribunal at such time and place as the First-tier Tribunal may specify for the purposes of giving evidence;

(b)to give the First-tier Tribunal, by such day as it may specify, such documents or information as it may reasonably require.

(2) Paragraph (1) does not authorise the First-tier Tribunal to require any person to answer any question or to disclose anything which the person would be entitled to refuse to answer or disclose on grounds of confidentiality in civil proceedings in a court in Scotland.

(3) Where the First-tier Tribunal has set time limits for the lodging and serving of written evidence, it must not consider any written evidence which is not lodged or served in accordance with those time limits unless satisfied that there is good reason to do so.

(4) Where a party seeks to rely upon a copy of a document as evidence, the First-tier Tribunal may require the original document to be produced.

Lodging of documents etc.

19.—(1) Except as otherwise provided in these Rules or as specified by the First-tier Tribunal, a party must send to the First-tier Tribunal no later than 7 days prior to any hearing—

(a)a list of any documents and copies of the documents that the party wishes to rely upon; and

(b)a list of any witnesses that the party wishes to call to give evidence.

(2) Where a party seeks to rely upon a document not produced in accordance with paragraph (1), the First-tier Tribunal may allow the document to be lodged if it is satisfied that there is good reason to do so.

(3) In determining whether to allow a document to be lodged late, the First-tier Tribunal will have regard to whether to do so is fair in all the circumstances.

Directions

20.—(1) Except as otherwise provided for in these Rules, the First-tier Tribunal may at any time either on its own initiative, or on the application of any party, give directions to the parties relating to the conduct or progress of the proceedings.

(2) Directions may be given orally or in writing and must be intimated to all parties.

(3) Directions of the First-tier Tribunal may, in particular—

(a)relate to any matter concerning the preparation for a hearing;

(b)specify the length of time allowed for something to be done;

(c)vary any time limit in a direction previously given by the First-tier Tribunal for anything to be done by a party;

(d)provide for—

(i)a particular matter to be dealt with as a preliminary issue;

(ii)a party to provide further details of that party’s case, or any other information or document which appears to be necessary for the determination of the application;

(iii)a witness to be heard;

(iv)the manner in which evidence is to be given;

(e)require a party to lodge and serve—

(i)a statement of evidence which is to be given at a hearing;

(ii)a skeleton argument which summarises submissions to be made at a hearing and cites all the authorities which will be relied on, identifying any particular passages to be relied upon.

(4) When making directions the First-tier Tribunal must take into account the ability of parties to comply with the directions.

Withdrawal of the application

21.  At any time, a homeowner may withdraw an application either orally at a hearing or by notifying in writing the First-tier Tribunal and the other parties.

Inspections

22.—(1) An inspection of the land to which the application relates may be carried out at any time during the proceedings.

(2) The First-tier Tribunal may make or commission such further inspections as it considers appropriate to enable it to determine whether the property factor has complied with a property factor enforcement order.

(3) An inspection may be carried out by one or more members of the First-tier Tribunal, or by one member alone, or by any person authorised by the First-tier Tribunal to carry out such an inspection.

(4) The First-tier Tribunal must give in writing sufficient notice of an inspection to the party or parties.

(5) The parties and the representative of each party, if any, are entitled to attend the inspection.

Hearings

23.—(1) The First-tier Tribunal must give not less than 14 days’ notice in writing to the parties of the date, time and place of a hearing.

(2) A hearing must be held in public unless the First-tier Tribunal, on its own initiative or on an application by a party, decides that it is necessary to do otherwise to ensure a fair hearing.

(3) The First-tier Tribunal may hold a hearing and receive evidence by telephone, through a video link or by using any other method of communication if the First-tier Tribunal is satisfied that this would not prejudice the administration of justice and that there is no important public interest consideration which requires a hearing in person.

(4) At a hearing—

(a)a party or a party’s representative may conduct the party’s case;

(b)the parties will be heard in such order and, subject to the provisions of these Rules, according to such procedure as the First-tier Tribunal determines;

(c)a party may make representations, lead or produce evidence, and question any witness called by another party.

(5) The First-tier Tribunal may exclude from the hearing a person who is to appear as a witness until such time as that person gives evidence if it considers it is fair in all the circumstances to do so.

(6) The First-tier Tribunal at its discretion may, on its own initiative or on an application by a party, at any time and from time to time, postpone or adjourn a hearing, subject to rule 26.

(7) The First-tier Tribunal must give to the parties sufficient notice of any postponed or adjourned hearing.

Power to determine the proceedings without an oral hearing

24.—(1) Subject to paragraph (2), the First-tier Tribunal may make a decision under section 19(1) of the Act (including on a preliminary issue) without an oral hearing if—

(a)the parties agree in writing to dispense with an oral hearing;

(b)the First-tier Tribunal considers that, having regard to the nature of the issues raised in the proceedings, sufficient evidence is available to enable it to come to a decision; and

(c)to do so will not, in the view of the First-tier Tribunal, be contrary to the interests of the parties.

(2) Before making a decision under paragraph (1), the First-tier Tribunal must consider any written representations submitted by the parties.

Exclusion of persons disrupting proceedings

25.—(1) Without prejudice to any other powers it has, the First-tier Tribunal may exclude from any hearing or part of it—

(a)any person (including a party, a representative or a supporter) whose conduct has disrupted the hearing or is likely, in the opinion of the First-tier Tribunal, to disrupt the hearing;

(b)any person (including any party, representative or supporter) whose presence is likely, in the opinion of the First-tier Tribunal, to make it difficult for any other person to make representations or present evidence necessary for the proper conduct of the hearing.

(2) In deciding whether to exercise the power conferred by paragraph (1) the First-tier Tribunal must, apart from other considerations, have regard to—

(a)the interests of the parties; and

(b)in the case of the exclusion of a party or a representative of a party, whether the party will be adequately represented.

(3) If the First-tier Tribunal decides to exclude a party it must allow any representative of that party sufficient opportunity to consult the party.

Adjournment of a hearing on an application by a party

26.—(1) Where a party requests an adjournment of a hearing, the party must—

(a)if practicable, notify all other parties of the application for adjournment;

(b)show good reason why an adjournment is necessary; and

(c)produce evidence of any fact or matter relied upon in support of the application for adjournment.

(2) The First-tier Tribunal must not adjourn a hearing at the request of a party unless it is satisfied that it cannot otherwise deal with the proceedings justly.

(3) The First-tier Tribunal must not adjourn a hearing on the application of a party in order to allow the party more time to produce evidence, unless satisfied that—

(a)the evidence relates to a matter in dispute;

(b)it would be unjust to decide the case without permitting the party a further opportunity to produce the evidence; and

(c)where the party has failed to comply with directions for the production of the evidence, the party has provided a satisfactory explanation.

Amendment

27.—(1) No application once made to the First-tier Tribunal may be amended to refer to any failure by the property factor which is not referred to in the notification from the homeowner to the property factor for the purposes of section 17(3)(a) of the Act.

(2) A party may amend that party’s application or written representations relating to the proceedings only with the consent of the First-tier Tribunal and on such conditions as the First-tier Tribunal thinks fit.

(3) Except where paragraph (4) applies, where amendment is allowed by the First-tier Tribunal, the First-tier Tribunal must intimate the amendment in writing to the other party or parties as soon as practicable.

(4) Where amendment is allowed by the First-tier Tribunal in the course of a hearing, the terms of the amendment can be made orally in the presence of the other party or parties and noted by the First-tier Tribunal.

Hearing case in the absence of a party

28.  If a party or a party’s representative does not appear at a hearing the First-tier Tribunal, on being satisfied that the requirements of rule 23(1) regarding the giving of notice of a hearing have been duly complied with, may proceed to make a decision upon the representations of any party present and all the material before it.

Absence of a member of the First-tier Tribunal

29.  If, at or after the beginning of a hearing, a member of the First-tier Tribunal other than the chairing member is absent, the hearing may, with the consent of the parties, be conducted by the chairing member sitting alone or alongside another member and in that event the hearing will be deemed to be properly constituted.

Death or incapacity of a homeowner or property factor

30.—(1) Where a homeowner or property factor dies or becomes legally incapacitated while the proceedings are pending, a person claiming to represent the party or that party’s estate may apply to the First-tier Tribunal to be permitted to be sisted as a party to the proceedings.

(2) The First-tier Tribunal may continue to consider the proceedings despite the death or legal incapacity of the homeowner or the property factor and may allow that representative or successor to become a party to the proceedings.

Decisions on section 14 duty and compliance with property factor enforcement orders etc.

31.—(1) This rule applies to any decision of the First-tier Tribunal under section 19(1), 21(1) or 23(1) of the Act.

(2) Any decision of the First-tier Tribunal—

(a)must be reached by the majority but, where the First-tier Tribunal is constituted by two members, the chairing member has the decisive vote; and

(b)must be recorded in writing in a document which—

(i)contains a full statement of the facts found by the First-tier Tribunal and the reasons for its decision;

(ii)refers to the right of appeal to the Upper Tribunal under section 46(1) of the 2014 Act; and

(iii)is signed by the chairing member (or, in the event of absence or incapacity of the chairing member, by another member of the First-tier Tribunal).

(3) The First-tier Tribunal must, as soon as reasonably practicable, make a decision by giving notice of the decision to the parties.

(4) Such a notice must be accompanied by—

(a)the document mentioned in paragraph (2)(b);

(b)the property factor enforcement order or proposed property factor enforcement order, if any; and

(c)any report which the First-tier Tribunal considered before making the decision.

(5) The decision of the First-tier Tribunal and a statement of reasons are to be made publicly available.

Signature of documents

32.  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.

Transitional

33.—(1) Subject to paragraph (2), no application may be made for a determination on whether there was a failure before 1st October 2012 to carry out a property factor’s duties.

(2) The Chamber President and the First-tier Tribunal may take into account any circumstances occurring before 1st October 2012 in determining whether there has been a continuing failure to act after that date.

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