The Upper Tribunal for Scotland: Another New Bookmark

The Upper Tribunal for Scotland: Another New Bookmark
2019-09-23

This blog post is a follow-up to a previous post by Mitchell Skilling and Douglas Bain from June 2018.

The Upper Tier Tribunal for Scotland is the appellate court of the First-tier Tribunal for Scotland’s various Chambers, as established by the Tribunals (Scotland) Act 2014 (asp 10). Prior to April 2019, the ‘Decisions’ section of the Upper Tribunal for Scotland’s website was rather barebones, consisting of a few scattered decisions placed on Tribunal’s main page. As more decisions have been published, it has become necessary to add a dedicated decisions page to the Upper Tribunal website, making it much easier to browse appeals from the various Chambers of the First-tier Tribunal going forward. This will be of interest to lawyers, law students, and other interested parties alike.

Much like other Scottish court decision pages, the 50 most recent Upper Tribunal decisions are shown, with the ability to search for others. As with the First-tier Tribunal, this is primarily of interest to those interested in property law, due to the differences in caseload between Chambers of the FtTS. Of the appeals currently on the page, only three are not from the Housing and Property Chamber, these exceptions all coming from the Tax Chamber. This is not to say that there will not be published appeals down the line from the other three Chambers not currently represented. However, the Housing and Property Chamber’s vast jurisdiction over civil cases relating to statutory private sector tenancies has naturally resulted in it producing the largest quantity of appeals.

Much like decisions of the Sheriff Appeal Court, Upper Tribunal appeals are binding nationwide on all First-tier Tribunal for Scotland cases, ensuring legal consistency across Scotland. This is of particular importance in the tax sector and the housing sector. In the tax sector, two of the three cases related to Revenue Scotland’s procedures for the late filing of land and buildings transaction tax. These have provided clarification as to the evidence that the tax agency is required to produce to show that they intend to enforce statutory penalties, and therefore are of use to people facing the same penalties.

There is much more to consider in the housing sector. Among other examples, there is now binding precedent for new homeowners not acquiring retroactive title to make a complaint against a property factor regarding breaches of the property factor code of conduct made prior to their acquiring ownership. Another interesting decision is one concerning the time bar on applications relating to tenancy deposits not paid into approved tenancy deposit schemes. In this case, the landlord argued that the 2013 tenancy the case was concerned with had been replaced by a new one in 2017. This case serves as a reminder to tenants to carefully scrutinise any documents presented for signature by the landlord in the middle of a tenancy, and a reminder to landlords that if they lead evidence of a second tenancy agreement, the onus to prove its existence is on them.

It is important to note that the composition of the Upper Tribunal is dependent on which Chamber the appeal originates from. For example, appeals from the Housing and Property Chamber can be heard by a single sheriff sitting alone, whilst Tax Chamber appeals can be heard by a legal or judicial member of the Upper Tribunal. Unlike at first instance, appeals will not be heard by ordinary members, that is to say non-lawyers with specialist knowledge of the relevant Chamber’s subject matter. This is perfectly normal for an appeal court, as cases will be made on points of law rather than on the facts of the case.

Upper Tribunal appeals also assist in determining the exact scope of what can and cannot be done by the FtTS. In the case discussion in Lynas and Ferrari v James Bothwell Property Management ([2019] UT 22) it is remarked: “The tribunal is a creature of statute which has no common law jurisdiction. Concepts such as negligent misrepresentation have no bearing upon the decisions which the tribunal is able to make or upon the remedies which it is able to grant.” Thus, all cases made to the FtTS must be based in statute.

Should a case be appealed from the Upper Tribunal on a point of law, it will go to the Inner House of the Court of Session. Whilst this has yet to happen, the possibility exists for future binding Inner House cases that originated from a FtTS case, something that was statistically unlikely based on caseload even a few years ago. Thus, the possible instances in which Senators of the College of Justice may comment on a case heard and to some extent decided by a lay judge acting in concert with a legal expert, something which was already possible in Lands Tribunal for Scotland cases, have increased.

The Upper Tribunal will doubtless be hearing many more appeals in the years to come as the scope of cases heard by the First-tier Tribunal widens. Lawyers would be wise to keep an eye on its decisions.

Published by School of Law, University of Aberdeen

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