Anu Sharma was removed from the register by Renfrewshire Council after it determined she was no longer a fit and proper person to act as a landlord. She initially appealed to the First-tier Tribunal for Scotland’s Housing and Property Chamber, however that appeal was refused.

The application was heard by Sheriff Tony Kelly. Byrne, advocate, appeared for the appellant and Blair, advocate, for the respondent.

Forward-looking approach

In 2019, concerns about two of the appellant’s properties on Causeyside Street in Paisley were raised with the respondent, including issues with tenants of the properties and an occasion on which electrical work at a property was potentially performed by a non-qualified electrician. Following a hearing on 13 March 2019, the respondent’s Regulatory Functions Board removed the applicant from the landlord register.

During the hearing, the appellant led an argument that the Board was required to take a “forward-looking” approach as to whether or not to remover her from the register. This argument was rejected both by the Board and by the First-tier Tribunal on appeal. It was submitted on appeal to the Upper Tribunal that the Board and FtT had erred in failing to give effect to this submission.

It was also argued that the FtT had misconstrued the dicta of Sheriff Deutsch in an unreported case from 2017, TH v Glasgow City Council, in which he said that there was perhaps “an argument to be had” about whether a landlord could be deemed a fit and proper person in respect of some properties but not others.

It was submitted that the legitimate aim of the governing legislation, the Antisocial Behaviour etc (Scotland) Act 2004, was public protection, which necessarily had to include a forward-looking aspect in the assessment of risk. The Board ought to have looked at whether the appellant could have modified her behaviour, and in not doing so it had failed the public, the appellant, and her tenants.

Counsel for the respondents noted that the present appeal was against the decision of the FtT and not the Board. The FtT had been entitled to reach the conclusion that the Board’s decision was reasonable and that it was not acting out of a desire to punish the appellant. Further, the appellant had failed to identify precisely the steps that ought to have been taken in adopting her proposed approach to the legislation.

Careful analysis

In his decision, Sheriff Kelly observed: “Looking to the statute governing the Board’s decision there is little to support the submission that it ought to be imbued with a prospective approach. [Section 89] expresses itself in the present tense. Is the landlord a fit and proper person? The sub-section asks this in the context of whether that ‘no longer applies’. That suggests an application at a particular point in time, if anything looking to the past and not the future.”

He continued: “[The Board] was enjoined to ascertain whether the appellant remained a fit and proper person. It carried out a careful analysis of that issue. After arriving at the conclusion that the appellant was no longer a fit and proper person, the Board had no discretion other than to remove the appellant from its register of private landlords. In doing so it sought to protect members of the public from contracting with those who do not meet the fit and proper test.”

On whether the dicta of Sheriff Deutsch had an application in the present case, Sheriff Kelly said: “All that the FtT did was to narrate the observations of Sheriff Deutsch. This was not the sheriff’s concluded view on the matter, he expressed a tentative view making it clear that he was not deciding the point. The answer is to be found in the statute.” 

He went on to say: “The outcome is related to the individual who is on the Register of Private Landlords. If that person is no longer a fit and proper person she is to be removed from the register. The statute does not admit of any other outcome. The observations of the sheriff do not appear to be the reason why the FtT rejected the applicant’s submission on this point.” 

Sheriff Kelly concluded: “It is not unreasonable to assume that in noting the observations of Sheriff Deutsch in TH, the FtT had regard to what followed - that perhaps the resolution of the issue identified by him was for another day. The sheriff was clearly raising the issue without deciding it. The matter does not appear to have been argued before him.” 

Permission to appeal was therefore refused.