Aberdeen tenant refused wrongful termination order allowed re-hearing of application by Upper Tribunal

About this case:

• Citation:
  2024UT41
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Ian Cruickshank

Matthew Carrol, the appellant, argued that the FTS had made a final decision in circumstances when it was inappropriate to do so. He had sought £4,200 in compensation from his landlord, respondent Jacqueline Sutherland, who opposed the application.

The appeal was heard by Sheriff Ian Cruickshank. Both parties made oral submissions to the Upper Tribunal in person.

Disputed background

The application was lodged because the appellant was served with notice to leave advising that the respondent intended to live in the let property. He was told by the respondent that she was moving into the property with her husband, who recently had back surgery and required to live in a property with no stairs.

Two weeks after he was evicted, the appellant returned with a friend to the property to collect mail and was greeted by the respondent’s nephew, who said he was living in the property following a recent split with a partner. Neither the respondent nor her husband appeared to be living in the property at the time, leading the appellant to believe he had been misled into leaving. The respondent denied that she had not moved into the property and called the appellant’s claim “completely false”.

Following the appellant’s application, a Case Management Discussion was assigned to proceed by telephone conference call on 2 May 2024. At the CMD, which both parties attended, the FTS had the benefit of written submissions lodged by the appellant and respondent as well as further oral representations provided during the call. It concluded that the application could be decided without a hearing and refused the application.

Before the Upper Tribunal the appellant said he had been surprised that the FTS reached a decision at the CMD given the factual dispute between the parties. He had reminded the FTS that he had a witness who could speak to the discussion he had with the respondent’s nephew and noted that had not been asked to make any submission on whether a hearing would be required.

The respondent considered that the FTS had not been at fault in making a decision at the CMD. However, she accepted that there was a disputed factual background and did not recall the FTS exploring with the parties what issues required to be resolved in order to make a decision.

Lacks any explanation

In his decision, Sheriff Cruickshank said of the CMD process: “The purpose of the CMD is very clear. It is to enable the FTS to explore how the dispute is to be efficiently resolved. The FTS may require to address a number of matters in order to establish that.”

Analysing what happened at the CMD in this case, he said: “There is no indication in the written decision of the FTS that there was any discussion with the parties as to how the dispute may be resolved. Whilst it is accepted that the FTS may do anything at a CMD that it may do at a hearing including making a decision that is not something it would ordinarily be able to do where there is a dispute on the relevant facts. There may be situations where parties agree that nothing would be served by assigning a hearing but the FTS would be expected to discuss the necessity of a hearing with the parties.”

He continued: “In its written decision the FTS states that it had sufficient information and documentation before it to decide the application without a Hearing. No reasoning or explanation is provided to inform the reader why the FTS considered that to be the case. Furthermore, the FTS explained that it was unable to hold that the reason for wanting the appellant to vacate the property was to allow the respondent’s nephew to replace him.”

Noting that the FTS had not explained why the appellant had failed to prove his case, Sheriff Cruickshank concluded: “There is nothing in the written decision of the FTS which contradicts the recollection of either party as to the conduct of the CMD. I have concluded that the purpose of the CMD was not properly addressed by the FTS or if it was then that crucial matter is not recorded in the decision. The written decision lacks any explanation as to why the FTS unilaterally decided to make a final decision rather than assign a hearing.”

The appeal was therefore upheld, and the case remitted back to the FTS to be considered by a differently constituted Tribunal.