Housing tribunal rules, and legal aid provision, go out to views

A single set of operational rules should apply across all types of case in the Housing and Property Chamber of the First-tier Tribunal when it takes on full powers in December 2017 – but the availability of legal aid is being considered separately for each category.

These are the proposals in a new consultation on proposed procedure rules for the tribunal, published by the Scottish Government.

The tribunal is already taking cases that formerly went to the Private Rented Housing Panel and Homeowner Housing Panel, but from December there will also be transferred private sector housing cases now heard in the sheriff court, including evictions and tenancy deposit applications, and from January 2018 it will be able to hear cases under the new regime for letting agents.

No fee will be charged to people taking cases to the tribunal, and the rules are designed to be “easily understood by all parties”, whether or not legally represented.

Procedure will be inquisitorial, with an “overriding objective” in the tribunal “to deal with the proceedings justly”. This is to include a manner proportionate to complexity and to parties' resources; seeking informality and flexibility; ensuring parties are “on an equal footing procedurally”; using the Tribunal's special expertise effectively; and avoiding delay while considering the issues properly. Case management discussions will be held.

Separate chapters in the rules set out what information should be provided to support the various types of application.

Regarding legal aid, the consultation states the intention “for publicly funded legal assistance in the First-tier Tribunal to be considered on a jurisdiction by jurisdiction basis in advance of the tribunals transferring into their respective chambers of the tribunal”. For each type of case, it asks whether parties agree that publicly funded assistance should be available – except for letting agent applications, where it is proposed that no assistance be available.

The paper notes that there is currently no provision for publicly funded legal assistance in the Housing Chamber, but that when the legislation was before the Parliament, the minister made a commitment to consult on this due to concerns over the potential removal of eviction cases from the scope of civil legal aid.

It also points out that the rules are designed to foster “an active, interventionist and enabling approach” by the tribunal, and that parties will be able to arrange legal representation or to be accompanied by a supporter should they wish.

Click here to access the consultation. The deadline for responses is 31 March 2017.