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You are here: BAILII >> Databases >> Scotland Upper Tribunal Decisions >> Roya Sheikholeslami against Spiers Gumley Property Management Ltd (Upper Tribunal - Housing and Property Chamber) [2025] UT 36 (04 June 2025)
URL: http://www.bailii.org/scot/cases/ScotUT/2025/2025ut36.html
Cite as: [2025] UT 36

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2025UT36
Ref: UTS/AP/25/0012 & UTS/AP/25/0013
DECISION OF
Sheriff O'Carroll
ON AN APPLICATION FOR PERMISSION TO APPEAL
(DECISION OF FIRST-TIER TRIBUNAL FOR SCOTLAND)
IN THE CASE OF
IN THE CASE OF
Professor Roya Sheikholeslami
Appellant
- and -
Spiers Gumley Property Management Ltd
Respondent
FTS Case References Conjoined cases: FTS/HPC/PF/21/0559 & FTS/HPC/PF/22/2067
4 June 2025
Decision
The application for leave to appeal by the appellant against the decision of the First Tier-tribunal
for Scotland dated 7 August 2024 is refused.
Reasons
Background.
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1. This case has a long and rather unfortunate history. The appellant has been a homeowner
in the Quartermile development in Edinburgh since around 2008. A registered deed of
conditions deals comprehensively with various matters including the appointment of
property factors to manage the property. That development had property factors
appointed to manage the development from its inception. The appellant fell into dispute
with the original property factors which eventually resulted in legal action including
sequestration of the appellant in 2017 and subsequent connected legal proceedings. The
appellant remained in occupation of the subjects. The identity of the property factors
changed to the current respondents on 1 October 2019 who retain that role.
2. The present respondents are, like the previous property factors, subject to the Property
Factor (Scotland) Act 2011 ("the Act") and the statutory Code of Conduct ("the original
Code") which was introduced with effect from 1 October 2012. That Code was revised and
a new Code of Conduct ("the revised Code") was introduced with effect from 16 August
2021. That extended and expanded the original Code and introduced a set of overarching
standards of practice. The respondents are also bound by their written statement of service
("WSS") which they are obliged to issue to all homeowners whose properties they factor.
3. The appellant fell into dispute also with the new property factors, the current respondents,
some time after they took office. As a result, the appellant made application on 10 March
2021 (FTS/HPC/PF/21/0559) to the Housing and Property Chamber of the First-tier Tribunal
for Scotland ("the tribunal") founding on the 2011 Act. The application was detailed and
alleged breaches by the respondents of 19 separate sections of the original Code constituted
by a large number of alleged failures on the part of the respondents. As proceedings
developed, those grounds of complaint were clarified and expanded by the appellant.
4. Before that application was finally determined, the appellant made a further application to
the tribunal under case reference FTS/HPC/PF/22/2067. That application founded on a large
number of alleged breaches of the revised Code founding on around 11 separate provisions
of the Code.
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5. The tribunal eventually conjoined these two applications, dealing as they did with the same
parties, the same subjects, similar and related grounds of complaint by the appellant.
6. The legal member of the tribunal, David Preston, was appointed around May 2021 together
with the second member of the tribunal, Robert Buchan, (a surveyor member), to hear and
determine the applications. The tribunal held Case Management Discussion hearings and
evidential hearings, starting on 23 June 2021. That was followed by further case
management discussions and evidential hearings numbering eight in all. The last hearing
was on 21 February 2023, about 20 months after the first hearing and nearly two years after
the appellant's application to the tribunal in the first of the two cases. The tribunal ordered
closing written submissions. In response, the appellant lodged a very detailed set of
submissions on 22 February 2023. There was no equivalent lodged by the respondents. That
was because it informed the tribunal at the end of the evidential hearing on 31 March 2022
that they did not intend to appear at any further hearings of the case and invited the
tribunal simply to determine the two applications in due course on the basis of the evidence
and submissions of the appellant, the respondents' written submissions and the extensive
documentation. Thus the respondents thereafter were neither represented nor appeared at
any subsequent hearing and played a very limited role in proceedings before this Tribunal
as will be seen in due course.
7. The quantity of written and documentary material lodged and dealt with by the tribunal
was very large comprising over 1,500 pages of pages of documents including accounts,
financial statements, emails, legal documents, reports, written submissions by the parties
and much else besides.
8. Subsequent to the 21 February 2023 hearing, the tribunal commenced work on the
determination of applications. Unfortunately, before completing that work, the drafting of
which is done by the legal member of the tribunal, he unexpectedly died on an unspecified
date in 2023.
9. The President of the Housing and Property Chamber of the FTS then appointed Mr Bauld
as the replacement legal member. The tribunal's statement of reasons record that on being
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appointed as the legal member, Mr Bauld reviewed and considered the case papers. He
had access to the draft decision prepared by his predecessor. He had meetings with Robert
Buchan about the case and what transpired in the hearings. The legal member was
significantly assisted by Mr Buchan in the preparation of the final decision. The final
decision was unanimous. There is no reason to believe that the statement in the tribunal's
decision of what was done by the legal member is anything but accurate or that the tribunal
lacked access to any relevant documentation.
10. The tribunal issued its decision on the conjoined applications on 7 August 2024. It
approached the applications by noting that the various complaints regarding the alleged
failures of the factors to carry out their duties under the original code were similar to those
raised in relation to the revised code and accordingly the tribunal decided to deal with
those complaints together. The tribunal noted that the first application alone had 18 pages
of complaint with voluminous supporting paperwork. The tribunal then deals with the
complaints by subject matter, some complaints being relevant to more than one section of
the Code. Thus for example, the allegation that the factor had failed in its duty to provide
its WSS is a complaint relevant to 6 separate sections of the Code.
11. The tribunal proceeds in its 29 page statement of decision and reasons to group the many
complaints according to subject matter. Those subject matters were: failure to provide
written statement of services; communications and consultation failures; financial
obligation failures; debt recovery failures; failures in connection with insurance of the
subjects; failures concerning duty to carry out repairs and maintenance; failures to provide
a written complaints procedure; failures to follow the requirements of the Equality Act and
Mental Health Act. These areas were all pertinent to the first application.
12. So far as the complaints under the revised Code were concerned, the tribunal found that
failures of compliance with the revised Code were mirrored by similar provisions and
complaints under the original Code. Those further complaints were considered by the
tribunal according to the following headings: illegible documents; expenditure, vouching
& financials for FYE 2021; failure to provide vouching for expenditures despite repeated
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requests; failures to adequately explain and justify annual electricity usage and charges;
LED lighting charges.
13. In summary, the tribunal decided as follows. The tribunal upheld the complaint of the
appellant in relation to a number of matters being: failure on occasion to respond to
communications from the appellant within WSS timescales; a failure to provide timeously
certain information which was reasonably sought; failures to provide information about
charges concerning registration of a Notice of Potential Liability; failure to provide a copy
of the revised version of the WSS timeously; failure to adequately answer questions
concerning accounts. In all other respects, the tribunal rejected the complaints made by the
appellant.
14. The tribunal, having concluded some of the complaints were well founded was required
to decide whether to make a property factor enforcement order in terms of section 19 of the
Act and if it was minded to do so, to give notice of that proposal. It decided that it did not
intend to do so. Nonetheless, the tribunal gave notice of that intention to the parties and
invited further submissions on whether a PFEO should be made and whether any
alternatives to making such an order might be preferable. The respondent replied saying
that it was content that no PFEO would be made. The appellant made no representations
whatsoever. By way of a further decision dated 29 October 2024, the tribunal confirmed its
intention not to make a PFEO.
15. Application leave to appeal to Upper Tribunal. On 28 November 2024, the appellant sought
leave from the tribunal to appeal the decisions of 7 August 2024 and 29 October 2024. The
application set out 10 grounds on which it was alleged that the tribunal had erred in law.
On 13 January 2025, the tribunal refused permission to appeal to the Upper Tribunal on all
grounds.
16. By way of application to this Tribunal made on 12 February 2025, the appellant renewed
her application for permission to appeal to the Upper Tribunal. This Tribunal made an
order dated 4 April 2025 fixing a hearing on that application for 22 May 2025. The appellant
sought and was given the opportunity to lodge written submissions supporting and
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amplifying the grounds on which leave to appeal was sought. She did so. The respondent
made no additional written submissions.
17. The written submissions, which the appellant relied on in the hearing, set out 10 grounds
upon which it is said that the tribunal erred in law and on which permission to appeal to
the Upper Tribunal was sought. These grounds will be considered shortly in this decision.
18. At the WebEx hearing on 22 May 2025, the appellant who remained unrepresented, took
the opportunity to speak to her application for permission to appeal as varied and
amplified by her further written submissions. The respondent also appeared, represented
by Mr McKee. The respondent's submissions were very limited in scope and amounted
principally to opposing the application for permission to appeal and relying on the decision
of the tribunal in all respects.
19. Grounds on which leave to appeal is sought. As of course the parties recognise, appeal to this
Upper Tribunal lies only on error of law on the part of the tribunal. Permission to appeal is
required. Permission will only be granted by a tribunal if it can be shown that an arguable
error of law has been identified in the proceedings in the tribunal below. The tests for
demonstrating error of law are well-known and need not be repeated here: see Advocate
General for Scotland v Murray Group Holdings Ltd [2015] CSIH 77 for example. By contrast,
permission to appeal will not be granted where, for example, the ground relied on is in
essence an attempt to reargue matters which have already been decided by the tribunal
below. The test for arguability is not a high one. The appellant is not required at the stage
of seeking permission to appeal to prove that the tribunal did err in law. That is a matter
for determination at a full hearing on the appeal, if the appeal gets that far. But the
appellant does require to show that there is a real argument requiring a full hearing for
proper resolution of the contention that the tribunal has erred in law. Mere assertions of
error of law will not suffice. Neither will allegations of errors of law which can readily be
shown to be unfounded suffice. In deciding whether an arguable error of law has been
established, this Tribunal gives due deference to the expertise of the members of the
tribunal below whilst acknowledging at the same time that this Upper Tribunal is itself a
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specialist part of the adjudication mechanism. I now turn to deal with the grounds upon
which application for permission to appeal is sought.
20. Ground one alleges that a number of claims (or complaints) were not dealt with by the
tribunal. That is to say, the tribunal failed to deal with every single complaint made by the
appellant against the respondents. It is claimed that the tribunal being a specialised body
established to deal with such complaints, ought to have dealt with all heads of claim and
had no discretion not to deal with any particular head of claim or at least was obliged to
give reasons for not doing so. The written submission dealing with this ground does not
identify any particular complaint made by the appellant to the tribunal which was not dealt
with by the tribunal. In her oral submissions, the appellant claimed that, for example, her
complaint alleging a breach of section 2.8 of the code had been referred to but no decision
had been made and that there was no reference at all to a complaint under 4.6 of the code
although it was raised by her. She also said in oral submissions that she sought a
determination on various sections of the deed of conditions: for example clauses 9.5, 9.23
and 10.1 as well as a complaint she had made with regard to the Bankruptcy (Scotland) Act
1995. She also claimed that her written submissions to the tribunal dated 5 February 2023
had been ignored totally. These matters, taken singly and cumulatively, amounted to an
error of law she claimed.
21. In my view, these criticisms of the decision of the tribunal and its reasoning do not amount
to an arguable error of law. It is amply clear from the way in which the tribunal described
the task before it and the way that it approached the many and various issues advanced by
the parties that it took full account of all the material referred to by the parties including
the voluminous documentary material, the appellant's written submissions and her oral
submissions at the hearings. The tribunal had before it all documentation lodged prior to
the death of the original legal member. The tribunal's determination is that it did have in
mind all aspects of the many and varied criticisms made by the appellant of the
respondent's actings. While it is true that the tribunal did not always adopt the same
approach as the appellant towards the categorisation and analysis of her claims, neither
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was the tribunal obliged to do so. Furthermore, the tribunal was not obliged to accept the
veracity of the appellant's claims at face value.
22. The tribunal was obliged to apply its mind independently and impartially to the material
before it including material which favoured the position of the respondent as well as the
appellant. The tribunal was perfectly entitled in the context of dealing with a very large
number of individual complaints and detailed examination of a large number of
documents including financial records, emails and so on, to adopt a more broad brush
approach applying its knowledge and expertise of the particular sector being the subject of
the complaint.
23. The decision of the tribunal to group together various complaints made by the appellant
and to reach a determination as to whether that grouping of complaints represented a
breach of one or more sections of the codes of practice was one which it was perfectly
entitled to do so long as the substance of the complaint in any given case was fairly and
justly dealt with; bearing in mind the whole circumstances of the case and the specialist
nature of the jurisdiction. Considering the way in which the tribunal went about its task
and the range of factual matters before it, testing that against the relevant parts of the
Codes, it cannot be argued in any substantial sense that the tribunal has failed in its duty
to properly and fairly consider the substance of the complaints brought to it by the
appellant, in so far as that was possible.
24. As the tribunal observes at paragraph 122 of the decision, the tribunal simply lacked the
statutory jurisdiction to consider some of the claims and complaints made by the appellant
since the tribunal does not have the jurisdiction to determine the liability for payment of
the accounts rendered by property factors which formed some of the subject matter of the
complaints made by the appellant. So those matters outwith its jurisdiction, which fall
within the jurisdiction of the sheriff court, were not justiciable by the tribunal. That also
includes claims relating to the Bankruptcy (Scotland) Act 1995. The tribunal makes
reference to the Upper Tribunal decision in the case of Richardson and Others v The
Residential Management Group Scotland Ltd [2023] UT 18 as authority for the proposition that
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the sheriff court and the FTS have different jurisdictions and some matters, such as for
example whether a debt is owed, fall within the jurisdiction of the sheriff court, not the FTS.
Also of relevance in that regard is the very recent decision of the Upper Tribunal in the case
of Waugh and Ors v Largiemore Estate Limited [2025] UT 17 which refers to the different
jurisdictions of the tribunal and the sheriff court and the inability of the tribunal to
determine some complaints, lacking the statutory authority to do so. Those decisions bind
the tribunal.
25. The fact that in some respects, the appellant was successful and the respondent found to
be in breach of certain duties is an indicator of the extent to which the tribunal has
thoroughly and fairly dealt with the wide-ranging nature of the criticisms made by the
appellant of the respondent. It is not an error of law for a tribunal in these circumstances
not to have itemised in a pedantic and extended fashion its decision and findings on every
single adminicle of complaint made by the appellant against the respondents. In short, it
the tribunal clearly and fairly adjudicated on the substance of the whole of the series of
complaints made by the appellant against the respondent in which it had jurisdiction and
no arguable error of law is demonstrated.
26. Ground two. This ground asserts that the tribunal failed to consider the four days of
evidence heard by the tribunal before the evidential hearings were completed and before
the legal member died. It is asserted that the administration of the tribunal told the
appellant that the hearing notes of Mr Preston had not been made available to the Mr Bauld
and that the reconstituted tribunal made its decision without considering the evidence
given in those four days.
27. The appellant does not provide any vouching for these assertions in the grounds of appeal
or elsewhere in the voluminous case papers. By contrast, the tribunal itself makes clear that
following the replacement of Mr Preston by Mr Bauld, some time was taken by Mr Bauld
to acquaint himself with the case which included considering the documentation as well as
meeting with the surveyor member; who of course was present as well as the deceased
legal member throughout each of the evidential hearings. There is no claim that Mr Buchan
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did not have his own notes for those four days hearings. There is no mention by the tribunal
itself that anything was missing from the papers including the evidential notes.
Furthermore, as the parties were told by the tribunal administration, Mr Preston had spent
some time preparing a draft of the final decision which was available for use by the
reconstituted tribunal. There is no attempt made by the appellant to identify any particular
gaps in the terms of the decision which support the allegation that the tribunal did not take
account of those four days of evidence. In the circumstances, there is simply no proper basis
for an arguable claim that the tribunal erred in law in the manner described.
28. I should add the following. The appellant does not argue that the tribunal's decision was
in any way vitiated by the enforced replacement of the legal member after the conclusion
of evidence. It is not argued that the tribunal in those circumstances ought not to have
reached a conclusion at all or that determination of the applications should have
recommenced before a fresh tribunal ab initio. Accordingly, I do not require to decide that
question. However, it is worth noting in passing that if such an argument had been
mounted, it would have been highly likely to fail. Regrettably, and inevitably from time to
time a judge will die part-way through court proceedings. In those circumstances, another
judge may take over and read the evidence already given even if the judge was sitting with
assessors or colleagues or if the facts are in dispute. Authorities which tend to support that
conclusion include R(Hitch) v Income Tax Special Commissioners [2005] 1 WLR 1651, Re British
Reinforced Concrete Engineering Co Ltd's Application (1929) 45 TLR 186, 187, The Forest Lake
[1968] P 270, 273. Of course, any substitution of a member of a tribunal or court made by
the President has to be done in such a way as to ensure that the parties continue to have a
fair hearing and determination of their rights at common law and under A6 ECHR. In that
latter regard, of course proportionality would become a relevant consideration which
might, if the issue had been raised squarely in this case, have required consideration of the
extensive proceedings which had already taken place in this case over a period of years
before the substitution had to be made and whether repetition of such elongated
proceedings would be necessary.
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29. Ground three is cast as an assertion that the tribunal took a legally wrong approach by: (a)
making a decision without ever hearing the case, (b) without having the hearing notes of
Mr Preston; (c) without considering relevant and material evidence, (d) without giving the
appellant opportunity to be heard before making its decision; (e) failing to consider
documentary evidence in the bundle. This ground is really a repetition of grounds two,
four and five. It therefore does not require individual consideration and its components are
considered above and below.
30. Ground four is that the tribunal failed to consider the appellant's closing 22 February 2023
written submissions and to make determinations on the issues listed there. That document
was prepared and lodged following the previous day's final hearing pursuant to the
direction issued by the tribunal that the appellant draft and send her closing submissions
to the tribunal. Those submissions comprise 43 pages in all and consist of three separate
but related documents. The first document is the appellant's own summary of the
complaints that she made against the appellant divided into eight different sections
concerning matters such as the written statement of services, communication and
consultation, financial obligations, debt recovery, insurance and so on. The second
document comprises 29 pages reproducing a submission the appellant previously made in
response to the respondent's submissions made on 2 November 2021. The third document
is a detailed chronology of the appellant's complaints against the respondent from January
2018 to June 2022.
31. Although it is asserted in this ground of appeal that the tribunal failed to consider those
written submissions, there is no adequate basis for that assertion. The document itself was
ordered to be produced by the tribunal. Typically, the purpose of a court or tribunal
ordering such submissions to be made is to provide assistance and clarity to the court or
tribunal when it comes to the final determination. It would be highly unusual were a court
or tribunal having ordered such a document to be produced, were not to take account of it.
In any event, there is no basis on which this assertion can be properly argued. Whilst it may
be said that the manner in which the appellant has detailed the basis for her complaints
12
and her analysis of the various alleged shortcomings of the respondent is not replicated in
the decision of the tribunal, it does not follow that the tribunal has not taken that document
into account nor that the tribunal has fallen into error of law in adopting its own analysis
and methodology. A tribunal is not bound by the approach taken by any litigant. It was for
the tribunal to decide the manner in which it wished to approach the various complaints
against the respondent put before it and to make its own determination in its own way
according to law in the light of the evidence before it and the conclusions it reached
therefrom. That is what it did. The tribunal decision records that the replacement legal
member, before issuing the decision of the tribunal, took full account of the material which
had already been lodged in the tribunal, which must have included that final submission.
As I have noted in relation to the first ground of appeal, the tribunal has dealt substantially
with the various matters put before it. There is no merit in this ground of appeal either
which is unarguable.
32. Ground five argues that the tribunal made an error of law by relying on but not disclosing
to the appellant a representation made by the factor on 22 August 2024. What is referred to
is the response made by the respondents to the decision of the tribunal on the merits on 7
August 2024 in which the tribunal, having told the parties that it proposed not to make a
PFEO, invited submissions from the parties on that proposal. By that stage in the
proceedings, as noted above, the respondent had long declined to take any further part in
the proceedings. It is clear that the response referred to by the appellant in this ground of
appeal was simply that the respondent did not disagree with the tribunal's proposal and
that it had nothing to add. In the circumstances, it is entirely understandable that the
tribunal took the view that nothing in that response required any further comment by the
appellant. In any event, the appellant had not herself taken advantage of the invitation to
respond to the PFEO proposed decision. Furthermore, even if the respondent's response
had been copied to the appellant, it could have made no difference. Finally, the appellant's
response was made after the tribunal had made its decision on the substance of the case
and therefore would have been incapable of changing the tribunal's decision on the merits
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as opposed to the remedy. The tribunal did not alter its views. This ground of appeal does
not represent an arguable error of law.
33. Ground six ground alleges that the tribunal took into account irrelevant considerations
arising as a matter of fact. The substance of this ground is an allegation that the tribunal
when making its decision on the merits took into account an relevant consideration being
the fact that the appellant had not for many years paid any of the property factor's bills. It
is asserted that the tribunal was influenced in making a decision on the merits by that fact
and also by the fact that even prior to the appointment of the current respondents as
property factors, the appellant had not paid invoices. The appellant, asserting that the
tribunal took her non-payment of the bills into account as a relevant factor when
determining her complaints against the respondent, argues that the tribunal was not
permitted to do so since the 2011 Act gives rights to a homeowner based on ownership and
imposes duties on property factors to carry out their duties regardless of whether their
services are paid for by the homeowner.
34. The stark difficulty with this ground is that the tribunal accepts the appellant's starting
proposition. Remarkable as it may sound, even where a homeowner does not pay
management charges, service charges or fees to a factor, the factor is nonetheless obliged
by the Act to continue providing services. The tribunal notes at paragraph 26 that the
appellant had not paid any management charges, any service charges or fees to the factor.
The tribunal records that appellant had not given any reason to the factors for non-payment
even of undisputed amounts or any indication as to whether or when or on what conditions
the appellant would make any payment for anything. The appellant, the tribunal states,
was sequestrated in 2017 by the previous factors in respect of unpaid bills.
35. Nonetheless, the tribunal directs itself clearly in subsequent paragraphs that adherence to
the Code by the factor and the indebtedness of the owner are entirely separate and are not
interdependent in any way. It further directed itself that the applications do not require the
tribunal to determine what specific sums might or might not be due to factors. The task of
the tribunal, it directed itself, is to decide in response to her applications whether the
14
respondents complied with the Code and their obligations to the appellant not taking any
account of whether there were outstanding payments alleged to be due from the appellant
to the respondent. It is clear that is what it did. So it found for the appellant in some respects
and against her in other respects: but not on the basis of her admitted indebtedness. That
runs counter to the appellant's assertions in the ground of appeal.
36. Thus, the assertion made by the present appellant is without foundation in so far as the
tribunal's determination on the merits is concerned. There is no error of law arguable or
otherwise. The legal position however is different so far as the question of remedy is
concerned, which matter is raised in ground eight to which I will come shortly.
37. Ground seven provides that the tribunal relied on a "non-existent note". It is asserted in this
ground that after the final hearing of 21 February 2023, the tribunal issued a note indicating
it was now satisfied that it had all the necessary information to enable the tribunal to
consider the appellant's complaints and to issue a final decision. It is difficult to understand
this ground. It is clear that the appellant accepts that the hearing on 21 February 2023 was
the final hearing following which the tribunal invited closing submissions which the
appellant lodged on 22 February 2023. It is obvious therefore that the tribunal decided on
21 February 2023 that no further hearings were required. It is equally obvious that at the
time, the appellant understood that and responded correctly and appropriately. In this
context, all that could be meant by "a note" is the decision to invite final submissions and
not fix any further hearings. That was not wrong neither was it an error of law. This ground
is unarguable.
38. Ground eight. This ground states that the tribunal applied the wrong test in deciding not to
issue a PFEO despite finding breaches of the Codes. It is asserted that the tribunal applied
the wrong test and that the only circumstances in which a tribunal having found breaches
of the Code should not issue a PFEO are where, for example, the breach was minor and
had already been remedied or if issuing the order would serve no useful purpose.
Otherwise, it is asserted that a PFEO ought to have been made and that the appellant had
a right to such an order. It is also asserted that the tribunal was not entitled to take into
15
account her non-payment of fees to, as the appellant puts it, invalidate a home owner's
legislative right to redress.
39. The appellant therefore accepts that at least in some circumstances, a tribunal is entitled,
notwithstanding a finding of a breach of the Code, not to make a PFEO. The argument
made under this proposed ground of appeal is that the circumstances in which a tribunal
was entitled not to make a PFEO did not apply here. The appellant makes no direct
reference to the legislation which needs to be considered.
40. Sections 19 and 20 of the Act deal with the making by a tribunal of a PFEO. Section 19(1)
provides in short that the task of the tribunal in relation to a home owner's application is
to decide, firstly, whether the factors failed to carry out any of its duties and secondly, if it
has so found, to decide "whether to make a property factor enforcement order." Viewed in
isolation, that might appear to give the tribunal a discretion in all cases to decide whether
or not to grant a PFEO. The subsection gives no guidance as to the circumstances in which
a tribunal may decide not to make a PFEO where a breach has been found. However section
20 provides some assistance. It provides that a PFEO is an order requiring the property
factor to "execute such action as the tribunal considers necessary" and "where appropriate,
make such payment to the homeowner as the tribunal considers reasonable". So the
tribunal, once having found the property factor has breached a duty, when considering
whether to make a PFEO, must turn its mind to section 20 to consider whether there are
any "necessary" actions which the property factor must undertake and whether it is
"appropriate" to make an order that the factor make a payment to the homeowner.
41. At this stage, a tribunal may conclude, despite finding a breach of duty, that there are no
"necessary actions" that need be taken by the factor and also that it would not be
"appropriate" to make an order for payment of a reasonable sum to the homeowner. No
doubt such cases may be few. No doubt the examples given by the appellant might well be
circumstances in which a tribunal may decide that no PFEO ought to be made despite a
finding of breach. Nonetheless, the terms of the legislation do not restrict the tribunal's
16
discretion to those examples. It is for the tribunal to determine whether it is "necessary" to
make an order and/or "appropriate" to order the making of a payment.
42. To complete the analysis of section 19 and section 20, where the tribunal having made a
decision under section 19(1)(b) proposes to make a PFEO, it must first give notice of the
proposal to the parties and allow them an opportunity to make representations. Then, in
terms of section 19(3) if the tribunal remains satisfied that the property factor has failed to
carry out any of its duties then the tribunal "must" make a PFEO. In other words, the
tribunal is not obliged in all circumstances to make a PFEO even in the circumstances of a
finding of a breach. But once having decided to do so, it must make an order after having
given the opportunity to the parties to make representations.
43. Returning to the tribunal's decision in respect of the PFEO, it is clear that the tribunal has
correctly directed itself as to the content of section 19 and 20: see paragraphs 116 to 118 of
the decision. The tribunal directs itself, correctly, that the provisions of the 2011 Act do not
require the tribunal to make an order in all cases, even where a breach of the code has been
found. The appellant agrees with that broad proposition.
44. The tribunal then explains its reasons for not making a PFEO from paragraphs 119 to 139.
It amply appears from the content of this explanation that the tribunal has considered the
circumstances of the case in the round looking both at the actions and inactions of the
property factor and the actions and inactions of the appellant. It has taken into account the
fact that the applicant has failed to pay any of the cost of repair or maintenance of the
development for many years. It finds her failure to pay even undisputed demands for
payment for no sound reason was a significant factor in the complete deterioration of the
relationship between her and the factor. The tribunal refers to the overriding objective in
Rule 2 to deal with the proceedings justly. It finds that it would be entirely unjust to require
the factor to make payment to the appellant in the circumstances. It further finds that much
of the dispute between the applicant and the respondent hinges on the sums claimed to be
owed by the applicant in the respondents and notes that it does not have jurisdiction to
determine the amount owed if any by the applicant to the respondent: that determination
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falling solely within the jurisdiction of the Sheriff Court. The tribunal states that it has been
effectively unable to reach a final conclusion on certain aspects of the alleged Code breaches
since those alleged breaches would be dependent on a finding as to the financial liability
or otherwise of the appellant to the respondent and that is not a finding it can make. The
tribunal concludes that certain of the documentation sought by the appellant is in reality
tied in with that question of financial liability or otherwise and being tied in with that court
question is not a matter for the tribunal.
45. Returning to the ground of appeal, the ground effectively comes down to an argument that
the tribunal wrongly exercised its discretion not to make a PFEO. In substance, standing
the fact that the tribunal has correctly directed itself in law and has given ample justification
for its decision not to exercise its discretion to make a PFEO, it is in reality an attempt to
reargue the merits. That is not a ground on which appeal may be made to this Tribunal.
The tribunal has correctly directed itself in law as to the interpretation of the legislation. It
has given clear and cogent reasons for deciding not to make an order. Making the order
was a matter for its discretion and it cannot be said that the tribunal was not entitled refused
to make a PFEO. This ground is unarguable.
46. Ground nine states that the tribunal erred in law by not considering a range of options for
redress in a PFEO despite finding breaches. To some extent this ground of appeal obviously
overlaps with the preceding ground. It is quite plain from the decision that the tribunal did
direct itself correctly as concerns its powers under section 19 and section 20 of the Act and
was fully aware that making an order for payment was only one type of order that it could
make. That is apparent from the terms of the tribunal decision at paragraphs 116 to 129. It
becomes even more obvious when one considers the content of paragraphs 130 to 139
where the tribunal makes it amply clear to the parties that it would do all it could to help
facilitate resolution of the dispute between the parties, insofar as its powers permitted.
Neither party however chose to take advantage of that initiative. Nonetheless, it is plain
that there is no substance to this ground which is inarguable.
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47. Ground 10. The final ground of appeal is ground 10 which was added by the appellant after
the initial application for permission to appeal to this Tribunal was made. I will consider
that additional ground of appeal which is as follows. It asserts that the tribunal erred in
law in failing to apply correctly the provisions of section 20 of the Equality Act 2010 in
relation to assessing the liability or otherwise of the respondent. Particular reference is
made to section 20(2) and (7) of the 2010 Act and the three requirements which comprise
the section 20 duty to make adjustments. There is no further attempt within the ground of
appeal to particularise the application of the section 20 duty to the respondent. Neither is
there any attempt within the ground of appeal to explain how the three requirements
applied in the circumstances of the appellant's dealings with the respondent, to explain the
way in which those requirements were not made and the effect of those alleged failures on
her. The extensive submissions made by the appellant during the tribunal including in
particular her closing submissions dated 22 February 2023 make limited references to the
appellant's complaint against the respondents under the 2010 Act. It is asserted in those
submissions that the respondent failed to explain and communicate clearly or to provide
important documentation such as the WSS in a "dedicated manner" and also failed to
provide other documents in a format accessible by "people with a mental health disability
and failed to make a reasonable adjustment in accommodation of disability as required
under the law".
48. The tribunal dealt with this ground of complaint briefly at paragraph 57 by refusing that
ground of complaint on the grounds that there was no evidence that the appellant had told
the factor that she required reasonable adjustments of any particular kind. So far as
legibility of documents is concerned, the tribunal dealt with that issue under the separate
heading of "illegible documents" at paragraphs 60, 61, 79 to 82 of its decision. The tribunal
has given complete and cogent reasons for rejecting the complaint with regard to a
legibility of documents in the context of the appellant's claimed mental health disabilities.
Accordingly, although the appellant on more than one occasion has made allegations that
the respondent has failed in its duties to make reasonable adjustments, the only substantive
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adjustment which was claimed related to legibility of documents which the tribunal for
intelligible reasons has rejected. This ground of appeal is unarguable.
49. I should also add that I am somewhat doubtful in any event that the tribunal, as opposed
to the sheriff, has jurisdiction to determine claims under section 20 of the Equality Act 2010
in relation to property managers: see Part 4 and section 114. But that point was not argued
before the tribunal or in this appeal so I do not decide the point and have considered the
ground of appeal advanced here on the assumption that the tribunal did have jurisdiction.
50. Accordingly, it follows that considering the stated grounds of appeal in these conjoined
cases together with the terms of the tribunal's final decision and the other relevant material
considered by the tribunal, including the very lengthy final submissions made by the
appellant herself, no arguable errors of law are demonstrated. Leave to appeal is therefore
refused on all grounds.
Sheriff O'Carroll
Member of Upper Tribunals for Scotland
There is no appeal against this decision or right of review: section 48 and 55 (2) of the Tribunal
(Scotland) Act 2014.

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