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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 40
P1020/21
OPINION OF LADY CARMICHAEL
in Petition of
ANU SHARMA
Petitioner
for
Judicial Review of a decision of the Upper Tribunal of Scotland
Respondent
Petitioner: Byrne; Harper McLeod
Respondent (Renfrewshire Council): Blair; Ledingham Chalmers
27 June 2023
Introduction
[1]
On 13 March 2019 Renfrewshire Council removed Ms Sharma from its register of
private landlords. It did so because it considered that Ms Sharma was not a fit and proper
person. The statutory scheme for registration and removal from the register is contained in
Part 8 of the Antisocial Behaviour (etc) Scotland Act 2004.
[2]
Ms Sharma appealed, unsuccessfully, to the First-tier Tribunal (FT), under
section 92(2), and to the Upper Tribunal (UT) under section 92(5) of the 2004 Act. The UT
informed Ms Sharma by letter of 23 September 2021 that a right of appeal lay to the Court of
Session under the Tribunals (Scotland) Act 2014. It was, however, common ground by the
2
time of the substantive hearing that there was no appeal to the Court of Session, and that a
challenge to the decision of the UT must be by judicial review. Section 92(6) of the 2004 Act
provides that the decision of the UT on an appeal under section 92 shall be final.
[3]
On 15 January 2020 the UT granted, in part, Ms Sharma's application for permission
to appeal to the UT from the FT. There then followed a rather complicated procedural
history in the UT itself. It is not necessary to narrate the detail of that. There came to be an
unopposed application by Ms Sharma to amend her grounds of appeal. She sought to add a
second ground of appeal relating to the proper scope of the appeal to the FT. The UT judge
refused the application to amend on 2 July 2021, although his decision is expressed as a
decision to refuse permission to appeal on the (proposed) ground 2. The UT considered the
appeal on those grounds for which permission had been granted, and refused it on
17 September 2021. It went on to entertain and determine an application for permission to
appeal to the Court of Session, although for the reasons set out above, there is no right to
appeal to the Court of Session in a case of this sort.
Preliminary issues
[4]
There was a preliminary issue between the parties as to whether the question of
time-bar remained a live issue at the time of the substantive hearing. The respondent's point
related to the challenge to the decision of the UT judge to refuse permission to amend the
grounds of appeal. In the interests of efficiency I did not determine the question in the
course of the hearing, but permitted brief, time-limited, submissions on (a) whether the issue
remained for my determination and (b) if it did, what factor should inform my view of the
issue on its merits.
3
[5]
The Lord Ordinary who dealt with permission appointed an oral hearing. The note
attached to the interlocutor setting the oral hearing read: "The court requires to be
addressed on the respondent's first plea in law confined to the issue of time bar." The
interlocutor granting permission did not explicitly dispose of the respondent's time-bar plea.
It did record satisfaction that the test in section 27B(3)(a) and (b) of the Court of Session Act
1988 had been met, and that the petition would raise an important point of principle or
practice. I was told that the discussion at the oral hearing on permission ranged more
widely than simply the issue of time-bar. I have seen the respondent's note of argument for
the permission hearing, and it is not confined to the question of time-bar. It is not clear why
it was drafted in that way, as the issue of time-bar was the only one on which the
Lord Ordinary required submissions. As Practice Note No 3 of 2017 explains, the
Lord Ordinary will ordinarily order an oral hearing if refusing permission. In that event the
Lord Ordinary will normally produce a brief note that sets out the concerns which are to be
addressed at the hearing. This will assist parties and the court in ensuring that hearings do
not exceed 30 minutes. It is implicit in that guidance that parties should expect the hearing
to relate to the concern specified in the Lord Ordinary's note.
[6]
I am satisfied that the interlocutor granting permission did dispose of the time-bar
plea in Ms Sharma's favour. Issues of time bar are generally to be disposed of at the
permission stage: O'Neill and Lauchlan v Scottish Ministers [2021] CSIH 66, paragraph 18, and
it is clear that disposal of that plea was at the forefront of the Lord Ordinary's mind when he
appointed a hearing on permission. There is nothing in this case that would have rendered
the question of time-bar incapable of resolution at permission stage: cf Avaaz Foundation v
Scottish Ministers 2021 SLT 1063. I concluded that there was no live issue of time-bar for my
consideration.
4
[7]
In case I am wrong about that, I record my opinion on the application of section 27A
of the 1988 Act. The grounds for review so far as the decision to refuse amendment of the
grounds of appeal is concerned first arose on 2 July 2021. The refusal to allow amendment
was not challenged by judicial review within three months of that date. I would have
exercised my discretion to extend time, taking account of the following factors. It was
reasonable for Ms Sharma to pursue the appeal to the UT in the way that she did. Had she
been successful on the grounds that the UT considered in its 17 September 2021 decision,
then challenge to the decision on amendment would have been otiose. She sought judicial
review timeously at the conclusion of proceedings in the UT. Both parties represented to the
UT judge that the issue of the proper scope of an appeal to the sheriff was a point of general
importance on which both of them desired a judicial determination.
[8]
There was a subsidiary question as to whether a case added by Ms Sharma by
adjustment after the petition was raised was time-barred. It related to an alleged
interference with her Convention rights under Article 1 of the First Protocol. The point as it
came to be presented was simply to bolster Ms Sharma's case as to the correct construction
of the "fit and proper person" test. I do not consider that it represented a separate ground of
challenge. Had I been considering whether to grant permission in relation to this line of
argument at the outset, I would have done so.
[9]
Parties drew to my attention that by the time of the substantive hearing Ms Sharma's
registration would have expired by virtue of the passage of time, had her name not been
removed from the register. The council did not, however, seek to persuade me that
Ms Sharma no longer had standing, that the subject matter of the petition was academic, or
that I should not consider the petition on its merits. Ms Sharma retains an interest in the
lawfulness of a decision made regarding her position as a registered landlord. Both of the
5
issues in this case relate to real differences between the parties as to matters of law which
arise in other cases. In situations of that sort the absence of a practical result for the
individual petitioner will not necessarily prevent the court from providing a ruling: see eg
The issues
[10]
Ms Sharma advanced two propositions. The first is that the fit and proper person
test contains a forward looking element. The second is that the jurisdiction of the FT on an
appeal to it under section 92(2) of the 2004 Act is by way of rehearing and is not confined to
a Wednesbury review.
The fit and proper person test
The statutory provisions
[11]
Section 82 of the 2004 Act provides that each local authority shall prepare and
maintain a register for the purposes of part 8 of the Act. Section 83 makes provision for
applications for registration, and to exempt certain uses of houses from the requirements of
the Act. The Scottish Ministers have made regulations under section 83(1)(d) prescribing
information that must be provided in an application for registration: The Private Landlord
Registration (Information and Fees) Scotland Regulations 2005 (SSI 2005/558), and The
Private Landlord Registration (Information) Scotland Regulations 2019 (SSI 2019/195). The
information required includes information that is relevant to the matters to which the local
authority must have regard in terms of section 85.
[12]
Section 84 relates to registration and provides, so far as material:
6
84 Registration
(1)
This section applies where a relevant person makes an application to a local
authority in accordance with section 83.
(2)
Where (subject to subsections (7) and (8)) , having considered the
application
(a)
the local authority is satisfied that subsection (3) or (4) applies, the
authority shall enter the relevant person in the register maintained by the
authority under section 82(1);
(b)
the authority is not satisfied that either of those subsections applies,
the authority shall refuse to enter the relevant person in the register.
(3)
This subsection applies where
(a)
under paragraph (b) of section 83(1), the application (i) does not
specify a house; or (ii) specifies a house (or two or more houses);
(b)
under paragraph (c) of that section, the application does not specify
the name and address of a person; and
(c)
the relevant person is a fit and proper person to act as landlord
under (i) a lease; or (ii) an occupancy arrangement, by virtue of which an
unconnected person may use a house as a dwelling.
(4)
This subsection applies where
(a)
under paragraph (b) of section 83(1), the application specifies at least
one house;
(b)
under paragraph (c) of that section, the application specifies the name
and address of a person;
(c)
subsection (3)(c) applies; and
(d)
either-- (i) the person is a registered letting agent, or (ii) in the case of
a person who is not a registered letting agent, the person is a fit and proper
person to act for the landlord such as is mentioned in subsection (3)(c) in
relation to the lease or, as the case may be, arrangement.
[13]
The local authority is to enter the applicant in the register if satisfied as to various
matters. Read shortly, one of the matters as to which the local authority must be satisfied is
that the person is a fit and proper person to act as a landlord under a lease or occupancy
7
agreement. Section 85 sets out a list of matters to which the local authority must have
regard in deciding for the purposes of section 84(3) or (4) whether someone is a fit and
proper person. None of the considerations, which include convictions for offences involving
fraud, firearms, violence, drugs, and convictions or sexual offences, is expressed as an
absolute bar to registration.
[14]
The local authority may refuse to enter a person on the register, and if it does so it
must give notice of that to the person: section 86(1). Section 89 makes provision for removal
from the register:
89 Removal from register
(1)
Where
(a)
a person is registered by a local authority; and
(b)
subsection (2) or (3) applies, the authority shall remove the person
from its register.
(2)
This subsection applies where
(a)
the person was registered by virtue of section 84(3); and
(b)
paragraph (c) of that section no longer applies.
(3)
This subsection applies where
(a)
the person was registered by virtue of section 84(4); and
(b)
paragraph (c) or (d)(ii) of that section no longer applies.
[15]
Section 92 provides:
92 Appeal against refusal to register or removal from register
(1)
Subsection (2) applies where
(a)
under section 84(2)(b), (7) or (8) a local authority refuses to enter a
person in the register maintained by it under section 82(1); or
8
(b)
under section 88(8) or 89(1), (3A) or (4) an authority removes a person from
the register.
(2)
The First-tier Tribunal may, on the application of the person, make an order
(a)
requiring the authority to enter the person in the register; and
(b)
specifying whether the entry shall be deemed to be made by virtue of
subsection (3) or (4) of section 84.
(3)
Where by virtue of subsection (2) a local authority enters a person in the
register maintained by it under section 82(1),the entry shall be deemed to have been
made under subsection (2)(a) of section 84 by virtue of the subsection specified in the
order.
(5)
An appeal against the decision of a First-tier Tribunal granting or refusing an
application under subsection (2) shall be made within the period of 21 days
beginning with the day on which the decision appealed against was made.
(6)
The decision of the Upper Tribunal on an appeal under this section shall be
final.
[16]
Section 92 came into force on 30 April 2006, and initially made provision for
application to the sheriff by summary application, with appeal to the Sheriff Principal,
whose decision on appeal would be final. References to the FT and the UT were substituted
with effect from 1 December 2017 by the Housing (Scotland) Act 2014.
The decisions of the council, the FT and the UT
[17]
The decision of the council was taken by its Regulatory Functions Board. Its written
decision records that
"The Board, in reaching its decision, considered Mr A Hunter's submission that any
action must be forward looking. The Board considered this not to be the appropriate
test as set out in the legislation. Section 89 of the Act provides that the Local
Authority shall remove a landlord found to be no longer fit and proper subject to the
requirement to provide advice as set out above"
[18]
The FT's decision includes the following passages at paragraphs 59 and 60:
9
"the Tribunal did not accept the forward looking test was the correct test to be
applied in the context of the 2004 Act."
and
"...[the FT] was not persuaded that the decision taken by the Board was one which
no reasonable Board would have taken."
[19]
The reasoning of the UT appears at paragraphs 21, 25 and 42 of the decision of 17
September 2021:
"Counsel for the appellant founded strongly upon the concession that the scheme
had public protection as one of its purposes. Mr Byrne said that Meadows and Lidl
were now directly in point. If there was a protective purpose, this as an objective led
inexorably to a forward looking approach".
[...]
"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. The section
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 the particular point in time, if anything looking to the past and not the
future."
[...]
"Despite being bolstered by the statutory duty to have regard to it and the
requirement for consultation before publication, the Guidance, does not in my view
support the proposition that the `forward looking' test is what the statute enjoins the
local authority to employ."
Construction of the statutory provisions
[20]
It is evident from the passages just quoted that all three decision-makers rejected the
proposition that there should be a "forward looking approach" involved in applying the
statutory test. That begs the question of what that means.
10
Submissions
Petitioner
[21]
Mr Byrne submitted that the test ought to contain a forward looking element because
the purpose of the statutory scheme was one of public protection. It was not intended to be
a regime to punish bad landlords. The court should give primacy to the ordinary meaning
of the words: Barratt Scotland Ltd v Keith 1993 SC 141, p148A-B. The court should adopt a
purposive approach, having regard to the mischief at which the statutory provisions were
aimed: Bloomsbury International Limited v Department for Environment, Food and Rural Affairs
[2011] 1 WLR 1546, paragraph 10; R (Electoral Commission) v Westminster Magistrates Court
[2011] 1 AC 468, paragraphs 15, 103, 110; Pepper (Inspector of Taxes) v Hart [1993] AC 593,
p617 E-F; Nokes v Doncaster Amalgamated Collieries Ltd [1940] A.C. 1014, p1022.
[22]
All statutory schemes for regulation aimed to protect the public, and regulatory
bodies were not penal bodies: Meadow v GMC [2007] QB 462, paragraphs 30, 31 and 32;
Re Lo-Line Electric Motors Ltd and others [1988] 1 Ch 477, page 485H. Alcohol licensing
decisions were forward looking, as the licensing objectives under section 4(1) of the
Licensing (Scotland) Act 2005 were related to public protection: Lidl UK GmbH v Glasgow
Licensing Board 2013 SC 422, paragraph 35. The statutory context would determine whether
a scheme was regulatory or penal: R (Davies) v Financial Services Authority [2004] 1 WLR 185,
paragraph 27.
[23]
Counsel referred also to Scottish Government guidance on the application, namely
General Guidance for Local Authorities to administer and manage the Private letting registration
Scheme, dated April 2009, and Landlord Registration: Statutory Guidance for Local Authorities,
dated August 2017. The former in particular, at paragraph 3.4, supported the construction
for which he contended:
11
"In considering past actions of the applicant and the conviction, the local authority
should consider whether any problems are likely to occur again and whether they
are likely to affect the applicant's letting activity.
...
An assessment should be made on the risk that the applicant may fail to act properly
in relation to future letting activity and the local authority must judge to what extent
problems from the past are likely to recur."
[24]
Regulation 3 of the Private Landlord Registration (Advice and Assistance) (Scotland)
Regulations 2005 (SSI 2005/557) provided that if a local authority proposed to refuse an
application for registration under section 84(2)(b) or to remove a registered person from the
register in terms of section 89(1), it must, if it considered that the person could, or might be
able to, take action to avert the proposed refusal or removal give the person advice on the
appropriate action to take. That tended to support the proposition that the decision was one
which was forward looking.
[25]
If there were an ambiguity, I could derive assistance from a statement made in
Parliament at Stage 2 of the Bill's passage in relation to amendment 359: Communities
Committee, Thursday 13 May 2004, Col 1051.
[26]
The statute should be construed in a manner consistent with the need to assess the
proportionality of an interference with Ms Sharma's registration, which was of the nature of
a licence to act as a landlord, and was a possession for the purposes of A1P1: Tre Traktörer
proportionality was that detailed in Bank Mellat v HM Treasury [2014] AC 700, at
paragraph 74.
12
Respondent
[27]
Whether a person was not a fit and proper person for registration purposes was a
question of judgment for the local authority. Once it had made a judgment adverse to a
landlord, section 89 required removal from the register. The 2004 Act provided for an initial
assessment of fitness and a system of review to see whether the landlord continued to meet
the conditions for registration. The proper question for the council had been whether at the
time of consideration the landlord still met the conditions for registration. The expression
"no longer applies" was in the present tense, not the future tense. The jurisprudence on
which Ms Sharma relied arose from a variety of different statutory schemes, none of which
was precisely similar to the 2004 Act. Some of those schemes allowed for a range of
outcomes, whereas the 2004 Act scheme only allowed for a person to be registered or to be
removed from the register.
[28]
"Fit and proper person" was a portmanteau expression which took its colour from
the context in which it was used: R v Crown Court at Warrington, ex p RBNB
[2002] 1 WLR 1954, p1960. It related to present character, and related to the character, attitude and
aptitude of the individual concerned assessed against an established regulatory history:
Muir v Chief Constable of Edinburgh 1961 SLT 41, p42; R v Hyde Justices (or Cooke) ex p Atherton
[1912] 1 KB 645; Glasgow City Council v Bimendi 2016 SLT 1063, paragraph 28; Hughes v
Hamilton District Council 1991 SC 251, pp256-257. All of the considerations listed in
section 85 were expressed as relating to states of affairs existing at the time of the relevant
decision.
[29]
Registration was not a possession: Tre Traktörer, paragraph 53. A1P1 was directed to
protecting assets with a monetary, rather than simply an economic, value: R (On the
application of Nicholds and others) v Security Industry Authority [2007] 1 WLR 2607,
13
paragraphs 73-75; R(on the application of Countryside Alliance and Others) v Attorney General
Decision
[30]
During the course of oral submissions it was at times difficult to identify the point of
difference between the parties. Both accepted that the decision maker required to look at
matters in the round on the basis of all the information available at the time of the decision.
Both accepted that there was no limit, subject to the requirements of relevance and
reasonableness, to the considerations that might inform the decision. The council's real
concern, was that to categorise the decision as forward looking might be thought to impose
on a decision a requirement to approach decisions in two stages. The concern arose from
Ms Sharma's reliance on Lidl, and also from an apprehension that there might be an attempt
to characterise the course open to a local authority under regulation 3 of the Private
Landlord Registration (Advice and Assistance) (Scotland) Regulations 2005 as a step that
must be taken in every case. I regard the concern as misplaced.
[31]
Lidl involves a different statutory scheme. The decision complained of was that
grounds had been established in terms of section 39(1) of the Licensing (Scotland) Act 2005
for reviewing Lidl's premises licence to sell alcohol, and that it was necessary and
appropriate to suspend that licence for five days. The context was a failure to ask for proof
of age from a young person who had been authorised to make a test purchase. The question
for the decision-maker was first whether a ground for review was established, and, if it was,
whether to take one of four steps, ranging from a written warning to licence revocation. The
decision-maker had to consider whether any of those steps was necessary and proportionate
for the purposes of the licensing objectives. That the statutory process was of that nature
14
does not detract from the applicability of the reasoning at paragraph 35 about the forward
looking nature of the process so far as other broadly cognate regulatory contexts are
concerned. The forward looking nature of the process does not depend on a staged
approach.
[32]
Decisions about registration generally look to the future. Registration under
section 82(2) lasts for three years: section 82(6). The local authority must be satisfied at the
time of the registration that the person is a fit and proper person to act as a landlord or to act
for the landlord: section 84(2), (3), (4). The local authority must be satisfied at the point of
registration. In removing a person from the register, a decision maker is determining that
they are not a fit and proper person to remain on it at the moment when the decision is
made. It is a decision that affects the future position of the individual. The individual may
be guilty of an offence if he or she acts as a landlord without registration: section 93.
[33]
That a person is a fit and proper person to act as a landlord under a lease or
occupancy arrangement involves an assessment of their ability so to act during the term of
registration on the basis of the facts and circumstances known to the decision maker at the
point of registration. The words of the Master of the Rolls in Meadow at paragraph 32, in the
context of GMC fitness to practise proceedings, are equally apt in the context of landlords'
registration. The decision maker is looking forward, but in order to form a view as to
whether a person is a fit and proper person to be a landlord today, the decision maker will
have to take account of the way in which the person concerned has acted or failed to act in
the past.
[34]
The assessment that the decision maker has to carry out involves a very wide range
of matters, considered in the round. Proved past conduct is a matter of historical fact. It is
plainly of potential relevance to the assessment of how someone may behave in the future.
15
It may be of such a nature as to be determinative. It may not be. In an appropriate case a
decision maker may take the view that in the light of other facts and circumstances the
person is nonetheless a fit and proper person to be a landlord. There may be things that the
individual has changed, or could change, which have a bearing on the decision-maker's
assessment. Examples might include situations in which the decision maker is satisfied that
the individual has put in place structural safeguards such as the engagement of a reputable
letting agency as intermediary. Factors which have the capacity to mitigate risk in the future
may or may not include action about which advice has been provided under the Private
Landlord Registration (Advice and Assistance) (Scotland) Regulations 2005.
[35]
I am satisfied that in holding that the "fit and proper person" test did not look to the
future, the UT judge erred in law. I have reached that conclusion without reference to the
guidance or Parliamentary materials on which Ms Sharma relied, and without needing to
decide whether A1P1 was engaged as she contended.
The scope of the jurisdiction of the FT
Proceedings in the FT
[36]
Parties proceeded in the FT on the basis that the jurisdiction of the FT was restricted
to reviewing the decision of the local authority on Wednesbury grounds. The FT was not
asked to make any decision about that matter.
The decision of the UT judge
[37]
The relevant part of the decision of 2 July 2021 was this:
"[16] The appellant sought to invoke rule 7(3)(d) of the 2016 Rules as a basis for
seeking to amend her grounds of appeal. There are significant doubts as to the
competence of the procedural route followed by the appellant in this case. Rule 3 of
16
the 2016 Rules provides the procedural requirements for an appeal to the UT from
the FtT. A notice of appeal is required, identifying the decision of the FtT and the
errors of law in the decision rule 3(2). With that notice must be produced the
permission of the FtT to appeal or notice of the refusal of such permission rule
3(3)(c). Thus, where permission to appeal is sought from the UT, the FtT will have
refused permission rule 3(6). For an appeal to proceed before the UT either the FtT
grants permission to appeal or, if it refuses such permission, the UT will have
granted permission to appeal (section 46(3)(b) of the 2014 Act). There are procedural
requirements that follow from the nature of the hearing regarding permission and
appeals therefrom rules 3(7) and 3(8).
[17]
If the application to the UT for permission to appeal is lodged outwith the
applicable time limit ("within 30 days after the day of receipt .. of the notice of
permission or refusal of permission to appeal", see rule3(9)) then a notice of appeal
must seek an extension of time (rule 3(5)(a)(i)) together with an explanation for the
failure to lodge the appeal timeously (rule 3(5)(a)(ii)) and a statement as to why it is
said to be in the interests of justice that the time limit be extended (rule 3(5)(a)(iii)).
[18]
In submission these considerations were simply elided by the invoking of
rule 7 of the 2016 rules, it being contended that the UT could regulate its own
procedure in a manner wholly unfettered.
[19]
I am left in some doubt that there exists a power for application to be made to
the UT to amend an existing notice of appeal and for permission to appeal out of
time after it has made a decision on an application for permission to appeal. There is
no rule that provides for such a power expressly. However, in the absence of
submissions on this point, I am prepared to assume without deciding that there
exists a power to allow such applications to be made. That may be found in
rule 7(3)(d) (though what it ought to apply to is the notice of appeal rule 3(1)). I
was not addressed on the factors that may inform the UT in deciding upon such an
application. If the material in the application to amend had been submitted in a
procedurally proper manner, though late, then the application would have to
address the matters contained in rule 3(5).
[20]
Much was made by parties of the importance of a decision on this issue to
future practice and procedure in the FtT. The significance for the future practice and
procedure in the FtT of this proposed ground of appeal is not a matter on which the
UT can authoritatively comment. In the event that this matter is worthy of
consideration by the UT, on the basis that it affected a significant number of cases
proceeding before the FtT, it is reasonable to expect that the issue would be the
subject of proper focus and argument before the FtT in order that the UT can have
the benefit of the FtT's view on the operation of the proposed approach. This is an
important omission and one that arises because parties were at one before the FtT in
relation to its approach. Similarly, if this is an area of doubt that affects a number of
cases then the point can be taken properly in one of those cases. If parties are correct
on its application to a large number of cases then the UT can expect to receive, with
17
relative ease and speed, an application where that issue is competently and
timeously focussed.
[21]
In assessing whether the UT should exercise its discretion in the appellant's
favour, the significant time delay between the original appeal (31 October 2019) and
the proposed amendment calls for an explanation. The application to amend the
grounds of appeal (more properly "notice of appeal") comes some 18 months after
the decision of the FtT (and some two years after parties agreed the position at a
CMD before the FtT). All that was placed before the UT by way of explanation for
that delay at the hearing on 21 June 2021 was that a "fresh pair eyes" had
approached the appeal differently. In my view that is not an adequate explanation
for the considerable time lapse in bringing this matter now to the UT's attention.
[22]
In relation to the purported error of the FtT as to the nature of its review, this
issue was the subject of agreement between parties before the FtT (see paragraphs 5
and 50 of the FtT's decision of 10 October 2019). A change in position to such an
extent one which might be more accurately described as a volte face calls for
some explanation. As it was Mr Byrne was unable to provide the UT with any real
assistance as to why the position adopted by his client before the FtT had now
changed. This does not have the same flavour as a withdrawal of a concession in the
course of a hearing (see, for example, Promontoria (Henrico) Ltd. v Wilson
[2018] SAC Civ 21) but it does arise in the course of proceedings. The appellant does not seek
authority to change horse mid race. Rather, after the race is complete and the horses
have made their way to the winning enclosure, with the benefit perhaps of seeing
how the race was run, and how her horse fared, the appellant wants to run the race
afresh on a different track. An explanation for that change in position is a matter that
would be expected to feature in any application for an extension of time as a factor
which would inform the decision as to whether it is in the interests of justice to grant
or refuse it rule 3(5)(a)(iii).
[23]
considering in an application to the supervisory jurisdiction of the Court of Session
the failure to comply with the procedural rules which the court (and the respondent
in the reclaiming motion) expected to be respected. It said this: [...]
"[37] The respondents take exception to the petitioners being able to advance
a quite different argument from that which is contained in the pleadings and
was argued before the Lord Ordinary. There is considerable force in this
objection. Rules of procedure are an important element in the judicial system.
It is not a question of efficiency or speed trumping fairness and justice. The
need to determine cases expeditiously and to achieve finality is not a separate
or subordinate consideration to the interests of justice. Expedition and
finality are not opposed concepts to fairness and justice but are integral parts
of them (see Toal v HM Advocate 2012 SCCR 735, LJC (Gill) at para [107]). As
Honoré (About Law p 77) put it:
18
`One might think that, in contrast with content, requirements of form
and procedure are not important. That would be a mistake. Forms
and procedures are important for a number of reasons. They make for
certainty, they encourage careful reflection, and they promote
fairness.'"
[24]
Likewise in tribunal proceedings compliance with the requirements of the
procedural rules is important. If an appellant is to be allowed to amend a notice of
appeal then the failure to do so timeously may reasonably be considered with
reference to the rules that apply to appellants seeking to lodge a notice of appeal out
of time. The appellant here has not expressly sought an extension of time to lodge
her notice of appeal but that must be implied in her application to amend grounds of
appeal. She has provided little by way of explanation in connection with the delay in
bringing it before the UT before now. I also take into account the poor explanation
for the change in position. I do not consider it would be in the interests of justice to
allow the notice of appeal to be amended.
Conclusion
[25]
In all the circumstances I am not persuaded that the factors prayed in aid by
the appellant said to point to the grant of the proposed amendment and permission
to appeal outweigh the doubts about competence of the application to amend, the
defects and omissions in the application, the appellant's delay in bringing the matter
before the UT, her failure to account for that delay and her failure to adequately
explain the significant change of her position from that which was the subject of
agreement before the FtT.
[26]
For the two grounds of appeal for which permission to appeal is now sought,
ground 1 was not insisted upon at the hearing of 21 June 2021. As for Ground 2,
permission to appeal is refused. Permission to appeal grounds 4 and 5 of the original
application has been granted by the UT."
Submissions
Petitioner
[38]
Mr Byrne acknowledged that the decision of the UT judge to refuse to allow
amendment was a discretionary one. He submitted that the judge had erred in that he had
been of the view that the UT could not competently entertain an application to amend
grounds of appeal before it. He had left out of account the submissions of both parties to
him that the point was an important one affecting a number of cases and in relation to which
19
both parties wished to obtain a ruling, simply on the basis that he was not himself aware of
other cases in which the point arose. He had left out of account that it was the role of the UT
to resolve points of law affecting cases in the FT. It was necessary that the UT be astute to
the need to determine points of law relating to matters of such fundamental importance as
the scope of the jurisdiction of the FT. The importance of a point of law was a matter that
militated in favour of a court's allowing it to be argued and determined: see eg Wightman v
Advocate General [2018] CSIH 18. The judge had adopted an unduly formalistic approach,
which was out of place in tribunal proceedings which are intended to be flexible, and avoid
unnecessary formality and technicality: MN v Secretary of State for the Home Department 2014
SC (UKSC) 183, Lord Carnwath, paragraphs 22-24. To allow amendment would not have
occasioned any additional delay in the case. The point that Ms Sharma sought to raise was
one that went to jurisdiction, which was a matter that the FT and the UT were both obliged
[39]
Mr Byrne sought to persuade me that permission to proceed with this judicial review
had been given on the basis that the scope of the FT's jurisdiction was an important point of
principle or practice. He invited me to determine the merits of the proposition that he
sought to advance about the jurisdiction of the FT. Where a statute used the language of
"appeal" without more specification, that suggested a hearing of new, and not a review:
Michalak v General Medical Council [2017] 1 WLR 4193, Lord Kerr, paragraph 20. Where a
court could remake the decision and hear evidence, that indicated that the hearing was a
hearing of new: Macphail on Sheriff Court Practice (4th Ed), 27.42. The remedy under
section 92 was an order requiring entry in the register. It was not merely setting aside and
remittal.
20
Respondent
[40]
Mr Blair submitted that it was the "permission decision" of the UT judge that was
properly before the court for judicial review, and the challenge was one to an exercise of
discretion. The judge had given cogent reasons. There was no merit in the point of law that
Ms Sharma had been seeking to pursue. The statutory scheme indicated that a judgment as
to whether a person was or was not a fit and proper person was one for the local authority
only. Existing case law supported the proposition that the jurisdiction was one of review
only: TH v Glasgow City Council, unreported, Glasgow Sheriff Court, 21 September 2017,
Ossatian v Glasgow City Council FTS/HPC/GL/18/2549; Equi v South Lanarkshire Council
FTS/HPC/GL/18/3053.
[41]
It was necessary to consider the nature of the decision and the relevant statutory
provisions: R(Begum) v Special Immigration Appeals Commission and Secretary of State for the
Home Department [2021] AC 765. In Begum the existence of a "condition precedent" was for
the primary decision maker, in that case the Secretary of State, and the scope of the appellate
tribunal's jurisdiction had been found to be one of review only. That was analogous to the
present case, in which the question of whether someone was a fit and proper person was for
the local authority. The power to make that assessment remained with the local authority
alone, absent clear statutory provision to the contrary: Begum, paragraphs 68, 69. The
"local" nature of the decision making suggested a wide margin of discretion for the local
authority. Section 92 did not refer to an appeal, but to an application. Michalak provided no
useful guidance in the context of a very different statutory scheme.
Decision
[42]
The decision for review is the decision of the UT judge to refuse to allow amendment
of the grounds of appeal. That is the decision identified in statement 11 of the petition as
21
being challenged, and Ms Sharma is correct to characterise the decision as one to refuse to
allow amendment. The judge's decision is expressed in the introductory paragraph of the
decision as a decision "to refuse permission to appeal proposed ground of appeal 2". In
paragraph 26 the judge said he was refusing permission to appeal. It is however clear from
paragraph 24 that he had not allowed amendment of the grounds of appeal to include the
proposed ground 2. That being so it was not before him for consideration so far as
permission was required.
[43]
In considering the matters relevant to his decision to refuse to allow amendment, the
judge took into account a number of matters that are unexceptionable. He was entitled to
take into account the timing of the proposed amendment and the explanation or lack of it for
a change of position, and as to the timing of the change or position. He took into account,
but did not attribute weight to, the joint position of parties that the issue was an important
one. He gave reasons for doing so. Other judges might conceivably have taken a different
view: that a point may affect a number of first instance cases will not necessarily lead to
numerous appeals, as parties may recognise that their case is poor on the merits regardless
of the nature of the appellate jurisdiction. The judge's approach on this point cannot,
however, be characterised as unreasonable or otherwise unlawful. He was entitled to take
into account the importance of adherence to rules of procedure in achieving fairness and
finality, although, as in Prior, an appellate court or tribunal may still determine to consider
arguments not advanced at first instance in appropriate cases.
[44]
What is unclear from the decision is what the judge made of the competency of the
application to amend. At paragraph 19 of his decision he indicated that he was proceeding
on the assumption, without deciding, that there was a power to allow applications to be
made to amend the grounds of appeal. At paragraph 25, however, he says that in making
22
his decision he has brought his doubts about the competence of the application into the
balance in determining how to proceed. This apparent contradiction makes it impossible to
be sure that he did not take those doubts into account, and vitiates his decision. The judge's
doubts were misplaced, as they were based on an error of law and should have formed no
part of his reasoning. The Upper Tribunal for Scotland (Rules of Procedure)
Regulations 2016 provide that the UT may permit or require a party to amend a document:
rule 7(3)(d). There is no reason to exclude from that provision a notice of appeal. It would
be unusual for a court or tribunal not to have a power to allow amendment of a document
such as a notice of appeal.
[45]
The judge was correct to identify that amendment could and should not be a means
for a party to avoid the requirements for permission to appeal. Where a procedure requires
a grant of permission, any application to amend will require consideration of the test for
permission that would usually apply in that procedure. The situation is analogous to that
identified in MIAB v Secretary of State for the Home Department 2016 SC 871. That case related
to judicial review, the requirement for permission under section 27B of the Court of Session
Act 1988, and the test for permission in that provision. The Lord President (Carloway) said
this at paragraph 64:
"Where the court is considering a minute of amendment in proceedings raised after
the introduction of sec 27B, it ought to be asked to grant or refuse permission to
proceed on any new grounds advanced, at least at the stage of allowing any
amendment. It would be most unusual for the court in a judicial review to allow an
amendment to introduce averments containing an argument which has no `real
prospects of success'. Other than in exceptional circumstances, the existence of such
prospects should be regarded as a minimum requirement before an amendment
containing new grounds would be allowed. Even if that low hurdle were crossed, it
would not follow that the amendment should be allowed having regard to other
factors in the interests of justice equation."
23
[46]
Where an appeal is brought timeously, but there is an attempt to add a new ground
of appeal after permission has been granted on other grounds, it will be a matter for the
discretion of the tribunal whether to allow that. The tribunal will require to consider
whether the new ground satisfies the test for permission to appeal. Applications to amend
are not subject to rule 3 of the 2016 Rules. The reason why the amendment comes at the
point that it does is a factor that goes to the exercise of discretion by the tribunal, not to the
competency of the application to amend.
[47]
Although the judge erred in law in reaching his decision regarding amendment, that
error would be immaterial if the point of law underlying the proposed ground of appeal
were of no merit. I therefore go on to consider the substance of the point that Ms Sharma
sought to raise before the UT.
[48]
The local authority drew to my attention three cases in which a Wednesbury approach
was applied in an application under section 92(2); one from the sheriff court, and two from
the FT. None involved any developed discussion of the point. TH was decided on the basis
of a concession, albeit one that Sheriff Deutsch considered had been made correctly:
paragraphs 9 and 10. In Ossatian parties agreed before the FT that the approach should be
that adopted by Sheriff Deutsch in TH. The same is true of Equi.
[49]
In Begum one of the issues before the Supreme Court was the nature of the
jurisdiction of the Special Immigration Appeals Commission (SIAC) under section 2B of the
Special Immigration Appeals Commission Act 1997. There had never been any statutory
provision relating to the grounds on which an appeal under that section might be brought,
or how the appeal was to be determined. Lord Reed, at paragraph 46, observed that the
principles to be applied by an appellate body and the powers available to it were by no
means uniform. He went on to review various authorities, and in particular Secretary of
24
State v Rehman [2003] 1 AC 153. The following points which are potentially of significance in
this case emerge from that analysis. The circumstance that an appellate body has a
jurisdiction to decide issues both of fact and law will not be decisive as to the nature of its
jurisdiction in relation to a particular statutory provision permitting an appeal to be brought
to it: paragraph 55. In determining the functions and powers of an appellate tribunal, it is
necessary to examine the nature of the decision and any statutory provisions that throw
light on the matter, and the appellate process must enable the procedural requirements of
the ECHR to be satisfied: paragraphs 63, 64.
[50]
It follows that ascertaining the nature and extent of the FT's jurisdiction under
section 92 of the 2004 Act is an exercise of statutory construction. The question is this. Was
it the intention of the legislature (a) that only the primary decision maker, namely the local
authority, should decide the question of whether someone is a fit and proper person to be a
landlord on the merits, or (b) that the appellate decision-maker should also be empowered
to do so, as opposed merely to reviewing the lawfulness of the local authority's decision?
[51]
The language used in section 92 is that of application, not appeal, and does not of
itself provide any real assistance as to the nature or extent of the jurisdiction. The FT does
have a power to find facts, but that is not decisive: Begum, paragraph 55.
[52]
Part 8 of the 2004 Act was intended to secure that a person who was not a fit and
proper person should not be included in the local authority register. Before a person can be
registered, the local authority must be satisfied that he is a fit and proper person. If not so
satisfied, the authority must refuse registration: section 84(2)(b). If paragraph 84(3)(c) or
84(d)(ii) as the case may be no longer applies, the authority must remove the person from
the register. Read shortly, that arises when a person is no longer a fit and proper person.
25
[53]
On an application under section 92 the FT may make an order requiring the
authority to enter the person in the register. The FT may grant or refuse an application. If
the role of the FT were only to review the decision of the local authority, it would be
determining whether the local authority was entitled to reach the conclusion that the person
was not, or was no longer, a fit and proper person. The appeal would be determined
without anyone having positively determined that the individual was a fit and proper
person, at a point when the local authority had not been satisfied that he was such a person.
[54]
It cannot have been the intention of Parliament that a person's name should be
included on the register on the basis that the FT (or, formerly, the sheriff) concluded that the
local authority had not been entitled to reach the conclusion that it did. There is no
presumption that a person is a fit and proper person unless there is a finding otherwise. On
the contrary, he requires to provide information to show that he is a fit and proper person
when he seeks registration. It would be contrary to the purpose of part 8 of the 2004 Act
were the FT to be able to require a local authority to enter a person on the register where
neither the local authority nor the FT had been satisfied that the person was a fit and proper
person. Unless the FT is empowered to make a decision in substitution for that of the local
authority, rather than just setting it aside, it cannot make a determination that a person is a
fit and proper person. I therefore conclude that the jurisdiction of the FT in an application
under section 92 is to consider the question of whether the person is a fit and proper person
of new.
Conclusion
[55]
I am satisfied that the UT judge construed the "fit and proper person" test wrongly.
I cannot speculate as to the result he might have reached in relation to the appeal had he not
26
done that. It is not inevitable that he would have refused the appeal. A variety of options
would have been open to him, including remaking the decision himself, applying the correct
test, and remitting to the FT. So far as the decision on amendment is concerned, I cannot say
the UT judge would necessarily have refused to allow the amendment had he not brought
into account doubts as to the competency of amendment which were erroneous in law.
[56]
In light of the circumstances set out at paragraph 9 of this Opinion, I am putting the
case out by order for parties to address me as to what orders if any may be appropriate in
light of my conclusions on the arguments presented at the substantive hearing. I reserve all
questions of expenses meantime.
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