Glasgow landlords refused permission to appeal non-compliance finding
An application by two landlords for permission to appeal a decision of the First-tier Tribunal for Scotland that they had failed to comply with the terms of a Repairing Standard Enforcement Order has been refused by a sheriff of the Upper Tribunal for Scotland.
Razia and Mohammed Saeed, who let a property in Glasgow to tenant Sazia Amin, argued that the Tribunal had failed to take into account difficulties they had encountered in accessing the property in determining that they had failed to comply with the terms of the RSEO.
The appeal was heard by Sheriff Tony Kelly of the Upper Tribunal. Mrs Saeed represented the appellants, while the respondent was represented by Cochrane, solicitor.
On 3 September 2022, the FTS issued an order requiring the landlords to address a number of problems at the leased property, including that the windows were not wind and watertight, mould issues, and defective sockets and carbon monoxide detectors. Under the terms of the order, the landlords were required to engage suitably qualified specialists to address the identified problems.
Between November 2022 and February 2023, the Tribunal received written submissions from both parties in which the tenant stated not all of the work had not been carried out. The landlord initially indicated that they had been unable to get work done due to contractors being unavailable, a family bereavement and the tenant only providing access on two afternoons per week and Saturday mornings. Following a re-inspection of the property, the FTS proceeded to make a Rent Relief Order in terms of the Housing (Scotland) Act 2006.
In challenging the determination of the FTS that the landlords had failed to comply with the order, they argued that, while they were willing to carry out the work, they had not been permitted access to the property, including an occasion on which tradesmen attended the property but were refused access. The FTS had failed to take into account these factors, as well as the fact that they were unaware that they could have exercised a right of access to the property on the basis of emergency.
For the respondent it was argued that no point of law had been identified that was capable of being argued before the UT. It could not be said that the Tribunal had taken into account irrelevant considerations or left out of account relevant matters. This was not a decision that could be characterised as on that no reasonable Tribunal could arrive at.
Not open to re-evaluate
In his decision, Sheriff Kelly observed: “The issue to be decided by the FTS in its decision of 31 March 2023 was whether the remedial work to be carried out in terms of the RSEO had in fact been carried out. It had the advantage of re-inspecting the property and of detailed submissions from parties. It carefully evaluated that evidence and arrived at certain conclusions in relation to the failure to comply with the FTS’s earlier order.”
He continued: “It dealt with the submission made by the landlords that they had been unable to carry out the work because of limitations placed upon access to the property. Mrs Saeed repeated the difficulties that she had encountered in relation to arranging workmen to carry out work to the property. However, it is not open to the Upper Tribunal to re-evaluate this factual assessment carried out by the FTS unless it has gone wrong.”
On whether the Tribunal had taken the correct approach to the case, Sheriff Kelly said: “Separately, it is asserted that the wrong approach was taken to the case by the FTS. Several factual matters were canvassed in relation to the disrepair and the reason why it came to be within the property. However, the decision under appeal concerns the failure to carry out work in satisfaction of the RSEO.”
The sheriff concluded: “What Mrs Saeed seeks to do is to reopen the prior decision and that on the basis of an error as to fact. The respondent was correct in describing this issue as one that does not arise for a decision in this appeal.”
Permission to appeal was therefore refused.