Short assured tenant unable to have tribunal determine rent due to cost of living legislation amendment

About this case:

• Citation:
  2023UT39
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff O'Carroll

Appellant Andrew Brown, a short assured tenant of a property owned by the Glen Settlement Trust, had applied for a rent determination in November 2022. However, by that time provisions in the Cost of Living (Tenant Protection) (Scotland) Act 2022 had come into force that temporarily suspended the relevant provisions of the Housing (Scotland) Act 1988 on which the application was based.

The appeal was heard by Sheriff Derek O’Carroll of the Upper Tribunal.

Not knowing the effect

On 10 November 2022 the appellant made a referral to the FTS for a determination of rent under section 34 of the Housing (Scotland) Act 1988. The reason for the decision was that on the basis of the material before it the FTS was unable to decide that the rent payable for the SAT was significantly higher than the rent that the landlord might be expected to obtain under that tenancy having regard to the level of rents payable under assured tenancies in the locality.

The appellant sought permission to appeal based on two grounds. Firstly, the FTS had relied on material as to comparable rents charged by the same landlord locally that was provided to the Tribunal but not to him. Secondly, he sought to establish that his tenancy was an assured tenancy in fact and law, rather than a short assured tenancy. The FTS granted permission to appeal solely on the first ground.

In the course of preparing for the appeal hearing, the sheriff noticed that the appeal raised an issue of competency that had not been raised by either party before the FTS. The sheriff noted that, from 28 October 2022, the operation of section 34 of the 1988 Act had been suspended by provisions in the Cost of Living (Tenant Protection) (Scotland) Act 2022 until March 2024.

In his representations to the Upper Tribunal, the appellant said that he had been trying to negotiate the rent with the landlord since August 2022, and had made the application not knowing the effect of the 2022 Act. It was therefore found that the FTS did not have jurisdiction to determine the original application.

No publicity

Having taken legal advice, the appellant conceded that his appeal was bound to fail. The respondent, not having taken legal advice on the matter, took a neutral position but did not oppose dismissal of the appeal.

In his decision on what to do with the application, Sheriff O’Carroll observed: “The result of that saving is that any application or reference made before 28 October 2022 to the FTS relying on section 34 of the 1988 Act was protected. Any such application could continue to be determined by the FTS (and by the UT on appeal) notwithstanding the deemed repeal of section 34 by the 1988 Act. So far as I am aware, no publicity was given to this ancillary effect of the emergency legislation.”

He continued: “On reconsidering the legislation, my opinion remains the same. That is, the emergency legislation introduced to the Scottish Parliament with the ostensible aim of assisting tenants facing financial pressures had the effect, intentionally or otherwise, of removing the right of tenants under SATs to have a fair market rent fixed under section 34 of the 1988 Act with effect from 28 October 2022, subject to savings for existing applications.”

The sheriff concluded: “It follows then that the single ground of appeal mounted by the appellant does not fall for determination by this Upper Tribunal and I make no findings as regards the soundness or otherwise of that ground of appeal; save to say that the ground would have been very arguable in my view.”

The appeal was therefore dismissed.