Phoebe Combes and Christopher Isaacs, tenants of a property owned by FaceWorks Solutions & Technologies, argued that the First-tier Tribunal for Scotland Housing and Property Chamber had engaged in fallacious reasoning in refusing their application for appeal. The respondent denied that they were liable for the necessary repairs but otherwise were supportive of the applicants’ position.

The application was heard by Sheriff Ian Cruickshank. The appellants represented themselves, appearing by WebEx from Australia.

No legal connection 

The appellants had originally applied to the First-tier Tribunal for an abatement of rent or compensation due to a delay in repairing their tenanted property to make it wind and water tight. They had discovered a water ingress in the bedroom of the property in May 2019, which was repaired by August 2020.  

The respondents, who had made a voluntary payment to the applicants by way of compensation, argued that they had been delayed from effecting repairs due to a lack of consent by the majority of owners within the tenement block. This had led to them not having the necessary right to access necessary to effect the required repairs. 

Prior to the case calling for a Case Management Discussion, the appellants had sought to add the 11 other proprietors of the tenement block as additional respondents to the application. The FtT refused to do so on the basis that it was not appropriate, reasoning that there was no legal connection between the tenants and the other proprietors. Further, having found that it was not appropriate to make any order for payment against the landlord, it reasoned there could be no basis for any orders against the other proprietors either. 

It was submitted by the appellants that the FtT had wrongly concluded that it could not join the other proprietors to the hearing, and that it was logically incorrect to conclude that an order for payment against the other proprietors was only possible if one had been made against the landlord. The respondents, who did not resist the grounds of appeal, made written submissions that the FtT’s decision demonstrated erroneous thinking and was an error in law. 

Matter at an end 

In his decision, Sheriff Cruickshank began by noting: “The FtT determined that the respondents were not liable for reimbursement for rent or compensation as a result of the appellant’s tenanted property failing to be wind and water tight for a period of time. In this respect, the respondents succeeded in arguing that they were entitled to rely upon sections 16(4) and 16(5) of the Housing (Scotland) Act 2006. Having satisfied the FtT that the respondents were entitled to rely on this statutory provision the matter in dispute, so far as the FtT was concerned, was at an end.” 

He continued: “The respondents were found not to be liable. In those circumstances, in my judgement, the FtT cannot be said to have erred in law in refusing to join other parties, namely the remaining 11 co-proprietors of the tenement, as additional respondents.” 

Addressing the argument that the FtT was wrong to dismiss the application, he said: “It is not the case, as I understand the basis of the appeal that the appellants seek to argue that the FtT was wrong in dismissing the application against the respondent. The appellants seek to argue that it is the other potential respondents, namely the other tenement co -proprietors, who should have been called as additional parties that may have liability to meet their claim.” 

He concluded: “In this respect, I can identify no legal basis upon which the FtT would have been entitled to add further respondents in terms of the application before it. The FtT had no jurisdiction in this case to consider potential delictual liability on the part of the other co-proprietors. Rule 32 [of Tribunal procedure] would not, in my judgement, allow for the co-proprietors to be joined to the application as was requested by the respondents.” 

For these reasons, the application for permission to appeal was refused.