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Cite as: [2023] CSOH 40, 2023 SLT 801, [2023] ScotCS CSOH_40, 2023 GWD 25-219

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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

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.

[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.

[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

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

Napier v Scottish Ministers 2005 1 SC 307.

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:

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

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

(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

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:

"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.

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:

"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

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

Aktiebolag v Sweden (1989) 13 EHRR 309, paragraph 53. The correct approach to

proportionality was that detailed in Bank Mellat v HM Treasury [2014] AC 700, at

paragraph 74.

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,

paragraphs 73-75; R(on the application of Countryside Alliance and Others) v Attorney General

[2007] UKHL 52, paragraph 21 Registration was personal to Ms Sharma.

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

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.

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

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

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]

In Prior v Scottish Ministers [2020] CSIH 36; 2020 SC 528 the court was

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:

`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

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

to note for themselves: Cabot Financial UK Ltd v Gardner and Ors, [2018] SAC Civ 12.

[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.

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

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

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."

[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

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.

[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

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.