Glasgow homeowner credited £500 for property factor code breach refused permission to appeal against method of award

About this case:

• Citation:
  2023UT26
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Ian Cruickshank

Appellant Eric Hamilton, who submitted notice requesting permission to appeal outwith the statutory time limit, had informed the FTS that he wished the money to be paid to him personally. He argued that it was in the interests of justice for his application be heard even though it was made out of time.

The appeal was heard by Sheriff Ian Cruickshank of the Upper Tribunal. At a hearing before the UTS the appellant represented himself while a legal representative appeared for the respondent.

Insufficient to compensate

On 5 December 2022, following the case’s lengthy procedural history in the First-tier Tribunal, it was found that respondents, part of the Wheatley Group based in Glasgow, had breached the Code of Conduct as outlined in the Property Factors (Scotland) Act 2011. As part of the sanction, the Tribunal awarded the appellant the sum of £500, to be credited to his Property Factor account.

In January 2023 the appellant emailed the Tribunal to state that he did not agree that the sum should be credited to the account. The Tribunal responded that it was normal practice for the payment to be made to such an account. In response, the appellant continued to express his dissatisfaction and stated he wished to appeal. Permission to appeal was refused by the First-tier Tribunal and then again by the Upper Tribunal on 31 May 2023.

The grounds of appeal lodged by the appellant were that the FTS ought to have made the £500 award to him to recompense him for the worry, stress, and inconvenience caused by breaches of the Code, and further that the sum as awarded was insufficient to fully compensate him. He explained the lateness of the application as being due to a period of illness.

At the hearing the appellant further explained that he had been trying to secure legal representation without success throughout the lifetime of the application before the FTS. For the respondent it was submitted that further delay would be prejudicial, as during the whole proceedings the appellant had not made factoring payments they considered to be lawfully due. The proceedings were holding up a Simple Procedure case raised for the recovery of those funds.

Extremely limited

In his decision, Sheriff Cruickshank observed: “A person’s health condition, if relied upon as a reason, is always an important consideration when deciding whether to grant an extension of time. The proviso is that the health condition was operative at the relevant time, that it explains or excuses the failure to act timeously and there is no countervailing interest to any other party, such as long delay.”

He continued: “Even where there is an acceptable explanation for the delay, the length of the delay remains relevant. There will be cases where the delay is too long to justify an extension of time. The significance of the merits of the appeal will depend on other factors. Little significance need be attached to the merits where the delay is short or excusable. Greater significance may attach where delay is lengthy.”

Noting the lengthy history of the case, the sheriff said: “No medical evidence in support of [the appellant’s] condition, and the limitations it would bring, was lodged or referred to. I have no way of adequately assessing to what extent the appellant’s health condition impacted on his ability to observe the time limit provision of the 2016 Regulations. In particular, I have been provided with no information or evidence which assists in ascertaining how the health condition impacted over the two month period in question.”

He went on to say: “Without considering the merits in detail I balance these against the significant period of delay. Having considered the very comprehensive written decision of the FTS and the reasoning provided for that decision, on a preliminary basis, I have concluded that the appellant’s chances of success on appeal are extremely limited even presupposing that I could be persuaded to grant permission to appeal in the first place.”

Sheriff Cruickshank concluded: “I also look to the degree of prejudice to the respondents if the extension is granted. This goes beyond the fact that, if granted, the respondents would become involved in further appeal procedure. There is here the matter of the unresolved simple procedure case in the Sheriff Court paused until the FTS matter has been determined. That simple procedure case has been paused for approximately 4 years and 9 months. The respondents are entitled to have that matter progressed and resolved.”

Permission to appeal the decision was therefore refused.