APPEAL IN CERTAIN CASES AGAINST ISSUE OR REFUSAL OF QUALIFICATION CERTIFICATE (Hansard, 30 June 1969)

§ Mr. Wylie
I beg to move Amendment No. 29, in page 29, leave out line 37.
Subsection (3) provides that on any appeal under this section the sheriff shall have regard to the state of the dwelling at … two different times. The first is …at the time of the hearing… and the second is …at the time of the issue or refusal of the certificate…". In a sense, I suppose that this is the same point as was raised earlier but I do not think that the arguments against apply as forcibly in this context.
Here we have a situation in which an appeal is taken to the sheriff against the issue or refusal by the local authority of a qualification certificate. He has to be satisfied as to the state of the dwelling, first, at the time of the hearing. One can readily understand that. It is something on which evidence would be led and everyone would know where they stood. But why is it necessary to specify that he shall also satisfy himself as to the state of the dwelling at the time of issue or refusal of the 187 certificate? Surely this is a confusion of times.
Either the dwelling satisfies the statutory criteria at the time of the appeal or it does not. If it does not, then the appeal falls. What is the situation if it satisfies the criteria at the time of the appeal but the sheriff is satisfied that, at some earlier stage—namely, the time when the local authority issued or refused a certificate—it did not satisfy them? I do not understand the purpose here. Surely, if the dwelling has been put right in the meantime, the equity of the situation could be dealt with by way of expenses.
This seems a rather unnecessary confusion and introduces into the appeal procedure criteria which have to be tested as at two different times, one of which has superseded the other—namely, the condition of the dwelling at the time of the appeal and the condition of the dwelling at the time of the initial application.

§ Dr. Dickson Mabon
By the time the appeal is heard, the state of the dwelling might have changed from that at the time of the local authority's decision. This may be to the advantage or, indeed, to the disadvantage of the owner. For example, the local authority may have been justified in issuing a certificate because of the poor state of repair of the dwelling but, by the time the hearing is held before the sheriff on appeal, the repairs might have been carried out and the qualifying conditions of Clause 44(1) met. Again, it is possible that a defect in the dwelling may have developed which would justify the granting of an appeal by the tenant against the decision of the local authority to issue a certificate.
We can either seek to fit that sort of situation precisely into the Clause or leave the matter to the sheriff to decide on appeal, and we think that the latter is the better course rather than having the parties concerned starting the process all over again. We are importing a certain amount of common sense into this. If there is a change between the issue or refusal of a certificate and the appeal, then the matter should be decided by the sheriff because these matters will be led into the discussion of the case. This course will speed up the whole 188 matter rather than make the parties go back to the beginning because there has been a change and start all over again.

§ Mr. Wylie
I am not sure I follow all this. For example, at the time of application the statutory criteria were not satisfied and, therefore, the local authority was justified in refusing the application. The applicant then appeals and in the meantime puts right the property, so that the statutory criteria are satisfied. Is the sheriff in the situation as it exists then bound to grant an appeal? If so, what relevance has it, apart from the equitable question of expenses, whether the state of the property at an earlier stage in the proceedings has failed to satisfy the criteria?
I can well understand that, in such circumstances, the local authority may say, "The criteria are satisfied now, but we were justified in our earlier refusal. Therefore, you should refuse to allow his expenses." But I will be satisfied if I have an assurance that the governing factor is to be the state of the premises on the date of the hearing of the appeal, if that satisfies the statutory criteria.

Dr. Dickson Mahon
The object is to get the repairs done. Whether we reach the stage of an appeal being successful does not matter to that. However, I will consider what the hon. and learned Gentleman has said.

§ Mr. Wylie
I will be grateful if the hon. Gentleman raises this matter with his noble Friend. I beg to ask leave to withdraw the Amendment.

§ Mr. Wylie
I beg to move Amendment No. 30, in page 29, line 38, leave out from beginning to end of line 40.
I do not suggest that this is a crucial matter, but these are three lines which simply provide that the sheriff shall make no order for expenses unless it appears to him, having regard to the conduct of the parties and all their circumstances, that it will be equitable for him to do so.
I have always understood that the court always has regard to all the circumstances, including the conduct of the parties. I wonder whether these three lines are necessary.

§ Dr. Dickson Mabon
As I understand the hon. and learned Gentleman's case, 189 he is not saying that we ought not to have safeguards for a party who has lost an appeal, but who, in equity, ought not to have expenses awarded against him. He asked me whether this wording was proper. It is certainly precedented. It is in Section 13(h) of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933—action for recovery of rent—and in Section 33(6) of the Rent Act, 1965—recovery of possession of agricultural cottages. I understand that the hon. and learned Gentleman does not regard this as a vital Amendment and I hope that he will not pursue it.

§ Mr. Wylie
If it is so well precedented, it is almost impertinent to pursue it and ask why it should be here. However, one is at times tempted to question these things even though here are precedents. I beg to ask leave to withdraw the Amendment.