Actions in relation to private sector tenancies (including eviction proceedings in the First-tier Tribunal for Scotland (Housing and Property Chamber))

This page includes merits and other practical information for various types of action before the First Tier Tribunal for Scotland (Housing and Property Chamber). It includes the type of actions for which legal aid is available; operational guidance on how we consider these types of applications; and the evidence you should provide with your applications. The fees available are also included.

Private sector tenancy actions at the FTT: background and availability of civil legal aid

Proceedings relating to private tenancies will be heard in the First-tier Tribunal for Scotland (Housing and Property Chamber).  Importantly, this affects proceedings for eviction in relation to most private sector tenancies in Scotland, which were formerly within the jurisdiction of the sheriff court.

Civil legal aid is potentially available for these proceedings. Legal aid may be available to both landlords and tenants subject to eligibility tests. As well as financial eligibility, your client must satisfy the statutory tests of there being probable cause and that it is reasonable in all the circumstances that legal aid is granted.

Application requirements

You should select the “sheriff court” court type and we will amend this to the “First-tier Tribunal for Scotland” on any the certificate

Information needed for pursuer applications

As a minimum we will require the following:

  • Statement from your client
  • Supporting statement from a third party, such as a friend or family member, or other evidence which supports your client, or an explanation for its absence
  • Evidence to show that negotiations have been attempted

Your client’s statement should include the following:

  • Details of the order sought
  • Information to show the implications your client if the order is not obtained
  • Information which shows the likely prospects of success of the proposed proceedings
  • Details of the likely prospects of successfully enforcing the order
  • Value of the claim if appropriate
  • Why your client requires legal representation
  • If the case value is £3,000 or less information to show why it is considered reasonable for legal aid to be made available notwithstanding the comparatively low value of the claim

Information required for applications to oppose

As a minimum we will require the following:

  • Statement from you client
  • Supporting statement from a third party, such as a friend or family member, or other evidence which supports your client, or an explanation for its absence
  • Copy of the application to the tribunal being opposed
  • Evidence of any negotiations which have taken place, together with details of the outcome, or an explanation for its absence

Your client’s statement must include the following:

  • Comments on any issues raised in the application to the tribunal, and details of your client’s proposed opposition
  • Implications for your client of the proposed order
  • Information to show why your client requires legal representation
  • If the case value is £3000 or less, information to show why it is considered reasonable for legal aid to be made available notwithstanding the comparatively low value of the claim.

 

Review of a decision

A grant of legal aid for the proceedings will cover the cost of any review of a decision of the First- tier Tribunal made by either party.

Appeals

If your client wants permission to appeal to the Upper Tribunal, or is opposing, such an application this will be covered under a grant of legal aid for the First-tier proceedings.

If the First-tier Tribunal refuses permission and the application needs to be renewed to the Upper Tribunal, a fresh legal aid application is required.  Special urgency cover can be obtained to initiate an appeal without our prior approval.

If permission to appeal is refused, then the application can be abandoned, and this will allow payment of any account for work carried out under the special urgency provisions.

Operational guidance our procedures for assessing the application

We consider the application to decide if the statutory tests of probable cause and reasonableness are met.

The decision maker will have regard to our guidance on the reasonableness test and if the information set out above has been provided we should have sufficient information to decide whether it is reasonable for legal aid to be granted.

We will generally consider that the reasonableness test is satisfied in rent arrears cases where there is information provided that your client is at risk of losing their home and other factors that would show it is unreasonable to evict your client such as:

  • Evidence that they are vulnerable, or reside with young children, or adults for whom they care
  • Information to show that there are good reasons for arrears building up, such as issues with their claim for housing benefit/universal credit

Your client will need to provide detailed information in cases where repossession proceedings have been raised against your client as a result of:

  • Anti -social behaviour
  • Criminal activity within the tenancy
  • Failure by them to maintain the property in decent order

Your client will need to state their defence to the written representations of the landlord and provide an explanation which could persuade the Tribunal that it is reasonable to allow the tenancy to continue.

Where the only matter is a monetary claim of less than £3000 then information is needed to show why it is reasonable for legal aid to be made available despite the comparatively low value of the claim.

If your application is refused you can submit a review application.

Matters for which legal aid is potentially available

Legal aid is potentially available for actions for recovery of possession of heritable property arising from the following tenancies and occupancy agreements:

  • A regulated tenancy within the meaning of section 8 of the Rent (Scotland) Act 1984 (c.58)),
  • a Part VII contract within the meaning of section 63 of that Act,
  • an assured tenancy within the meaning of section 12 of the Housing (Scotland) Act 1988 (c.43).
  • a private residential tenancy within the meaning of section 1 of the Private Housing (Tenancies) Act 2016

Any actions arising from the Rent (Scotland) Act 1984 including:

  • Application to determine the statutory tenant after the death of a protected tenant.
  • Application for the apportionment of the rateable value in relation to a protected tenancy
  • Application for compensation for misrepresentation or concealment by landlord
  • Application to adjust recoverable rent
  • Application to amend a rent increase notice
  • Application to rectify a rent book
  • Application to determine the rent limit
  • Application for apportionment of the rateable value in relation to a Part VII contract
  • Application to modify a tenant’s right to shared accommodation
  • Application to reduce period of notice to quit of postpone date of possession in relation to Part VII Contract.
  • Application to recover unlawful premiums

Any actions arising from the Housing (Scotland) Act 1988 including:

  • Application to determine removal expenses
  • Application to provide a written tenancy agreement and rent book
  • Application for damages for unlawful eviction

Any actions arising from the Housing (Scotland) Act 2006:

  • Application to contract out of the repairing standard
  • Application to order a person to cease obstructing a person from complying with the Repairing Standard
  • Application to appeal the decision of a landlord in relation to adapting a rented house for a disabled person.

Any actions arising from the Private Housing (Tenancies)(Scotland) Act 2016 including:

  • Application to draw up terms of tenancy
  • Application for payment order where landlord has failed to provide information
  • Application to appeal rent set by the rent officer
  • Application for a wrongful termination order

What fees are available in relation to the First-tier Tribunal for Scotland (Housing and Property Chamber)?

Fees are chargeable as per Schedule 2A Fees Allowable to Solicitors for Simple Procedure Cases and First-Tier Tribunal for Scotland Cases which can be found by using the following link:

Counsel’s fees are chargeable for Proceedings in the Sheriff Court, First-Tier Tribunal for Scotland, Sheriff Appeal Court and Upper Tribunal for Scotland.

 

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