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SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINURGH

 

[2017] SC EDIN 8

B411/16

JUDGMENT OF SHERIFF T WELSH QC

 

In Summary Application under section 159 of the

Housing (Scotland) Act 2006

 

SA

 

Pursuer

 

Against

 

CITY OF EDINBURGH COUNCIL

 

Defender

 

Pursuer:   Party

Defender:   McGilvray;  Morton Fraser

 

3 February 2017

The Issue

[1]        The pursuer SA has a hidden or invisible disability.  He has Asperger syndrome.  He also owns two properties in Edinburgh, F and SC, which are licenced for multiple occupation.  The defender is the statutory body charged with the responsibility to manage enforce and oversee the operation of the licencing regime governing houses in multiple occupation, in terms of Part 5 and Schedule 4 of the Housing (Scotland) Act 2006 [the Act].  The pursuer’s licences fell due for renewal.  He was unable to engage in the property inspection procedure which is essential to the grant of a renewal licence.  The defenders then refused to renew the licences.  The pursuer appeals that decision to the sheriff on the basis that he was discriminated against because of his disability.

The Law

[2]        Section 159 of the Act provides that the sheriff may determine the appeal by—

“(a) confirming the decision (and any HMO licence or order granted or varied, or requirement made, in consequence of it) with or without variations,

(b) remitting the decision, together with the sheriff's reasons for doing so, to the local authority for reconsideration, or

(c) quashing the decision (and any HMO licence or order granted, or variation or requirement made, in consequence of it).”

 

[3]        Section 124 of the Act provides –

“(1) Every house in multiple occupation (“HMO”) must be licensed under this Part unless it is exempted by or under section 126, 127 or 142.

 

(2) A licence under this Part (an “HMO licence”) is a licence granted by a local authority authorising occupation of living accommodation as an HMO.”

 

[4]        Section 131 of the Act provides –

“(1) The local authority may grant an HMO licence only if it considers that the living accommodation concerned—

 

(a) is suitable for occupation as an HMO, or

(b) can be made so suitable by including conditions in the HMO licence.

 

(2) In determining whether any living accommodation is, or can be made to be, suitable for occupation as an HMO the local authority must consider—

 

(a) its location,

(b) its condition,

(c) any amenities it contains,

(d) the type and number of persons likely to occupy it,

[ (da) whether any rooms within it have been subdivided,

(db) whether any rooms within it have been adapted and that has resulted in an alteration to the situation of the water and drainage pipes within it,

(e) the safety and security of persons likely to occupy it, and

(f) the possibility of undue public nuisance.”

 

[5]        Paragraph 5 of Schedule 4 of the Act provides –

“(1) The local authority may make such inquiries about the application as the authority thinks fit.

 

(2) The local authority must make a report of any matter arising from any such inquiries which the local authority considers relevant to the determination of the application.”

 

[6]        Paragraph 6 of Schedule 4 of the Act provides –

Applicant's opportunity to respond

 

(1) The local authority must give the applicant a copy of—

 

(a) any valid written representation,

(b) any late written representation which the authority intends to consider, and

(c) any report made under paragraph 5(2).”

 

The Proof

[7]        At the proof the pursuer represented himself.  Mr McGilvray represented the defender.  At the outset I gave the pursuer an opportunity to indicate what his position was as the pleadings were somewhat diffuse.  It quickly became clear that the pursuer’s disability would be central to determination of the case.  The pursuer was clearly, in my judgment, less connected with the proceedings than a typical party litigant.  I was careful to monitor that he was able to understand the proceedings.  It was obvious to me that he was fixated by his own side of the argument and disengaged from the defender’s predicament.  For reasons I allude to later I consider his conduct and presentation to be symptomatic of his disability as well.  I suggested that Mr McGilvray may care to lead at the proof, to focus the issue properly and lessen the intellectual burden on the pursuer.  This he graciously agreed to do to facilitate progress.

 

The Evidence

Defender’s proof

[8]        Mr Andrew Mitchell gave evidence.  He is the Senior Regulatory Services Manager for the defender with responsibility for HMO licences.  He explained he has worked with the council for nearly 19 years.  He leads a small team with responsibility for HMO licence administration, including inspections.  He has responsibility for processing the applications for HMO licences.  He has delegated authority to grant some licences and in contested cases refer the matter to a subcommittee of the defender’s Licensing Committee for a decision.  He said those cases in respect of which objections are received by the defender, or if there is a technical issue, then these go to the subcommittee.  He indicated he had dealt with the pursuer since 2012.   He explained the relationship between the pursuer and the department has been ‘difficult’.  There have been a number of complaints by the pursuer over the years.  There have been a number of refusals of HMO licences and court actions.  Mr Mitchell indicated he was aware of the pursuer’s disability.  He said the council take this into account when deciding cases involving him.  He indicated the pursuer’s properties have to be inspected before a licence can be renewed.  The pursuer has a number of properties and the council offer to inspect them together on the same day as the pursuer lives in England.  He said his department only corresponds with the pursuer in writing as discussions on the telephone can be difficult.  He said the defender must inspect the properties concerned to ensure the legislation is complied with and that the properties are safe for human habitation.  In respect of the present case, the council wrote to the pursuer on 14 July 2015 offering an inspection date of 11 August 2015 [DP6/2/1].  The pursuer replied by e mail of 18 July 2015 [DP6/2/2] the contents of which were not entirely clear.  The pursuer failed to attend for the inspection and did not arrange for a letting agent to attend either.  Given the pursuer’s disability the defender offered a second appointment for inspection on 12 November 2015 [DP6/2/5]. Again the pursuer failed to participate.  Mr Mitchell said it was not his responsibility to arrange access for inspection.  The council policy, he said, was that the inspection must take place in the presence of the property owner or his authorised agent.  In the absence of an authorised person the council did not allow inspectors to inspect the property with the tenants.  The council, he said, was prepared and did make reasonable adjustment to allow for the pursuer’s disability but the defender could not waive its statutory duty to inspect the properties.  The parties were at an impasse.  He said the licences are granted for a year.  The annual inspection is to look at health and safety issues like gas and ventilation in the properties, fire doors, safe windows, sanitation and the like.  The witness said the pursuer, so far as he could understand, does not object to the inspection process, in principle. However, he does object to being present or appointing an authorised representative to attend.  On 9 December 2015 [DP6/2/6] the defender wrote to the pursuer informing him that the HMO licence application would soon be determined but there was a problem about the inspection not being completed.  In that letter, a copy of a report was sent to the pursuer from a Private Rental Sector Team manager, Rosalind Laidlaw, setting out the history of the application, the failure to provide access for inspection and detailing that by 29 October 2015 the pursuer had suggested the inspections were carried out in the presence of the tenants or with a local locksmith present, who could give access.  Mr Mitchell said neither of these options was practical from the council’s perspective.  Miss Laidlaw’s report concluded that as access for inspection had not been afforded by the owner and licence holder ‘there was no alternative but to recommend’ the licence applications were refused.  In the letter of 9 December 2015 the pursuer was given 14 days to make written representations before a final decision was taken [DP6/2/7].  Mr Mitchell said that ‘quite exceptionally’ the pursuer was then offered a final opportunity to resolve the matter and give access by letter of 8 February 2016 [DP6/2/8] before a final decision was taken on the matter.  On 22 February 2016 the pursuer replied.  The terms of his e mail are quite diffuse but no access was arranged.  Accordingly, on 26 February 2016 both licences were refused [DP 6/3/1-2] on the basis that the applicant was not a fit and proper person to hold a licence (s130 of the Act) because he did not facilitate access for inspection and separately the premises could not be inspected to determine if they were suitable for occupation as a HMO (s131 of the Act).  On 29 February the pursuer was informed of the decisions. Statements of Reasons dated 8 July 2016 were also spoken to by Mr Mitchell and sent to the pursuer [DP 6/1/1-2].

[9]        The pursuer had an opportunity to cross examine.  He managed to establish that in the past the council agreed to have a single point of contact with him.  This was helpful because he has difficulty dealing with a multiplicity of different people in relation to his properties.  Also, Mr Mitchell agreed that there was no problem in 2014 with the inspection process.  Mr Mitchell did say in 20 years with the Council he has never encountered a landlord who has not afforded access for inspection.

Pursuer’s proof

[10]      Mrs SA (53) gave evidence.  She is the wife of the pursuer.  She presently works as an administrator with a local authority in England.  She has been married to the pursuer for 23 years.  She was a teacher.  Mrs A said her husband was diagnosed with Asperger Syndrome around 2005.  The diagnosis has been very helpful in understanding the pursuer’s behaviour.  She explained that her husband responds very well to written instructions from the defender.  She explained that before 2014 when an inspection occurred, the inspectors prepared a written list of points they identified that needed attention.  When her husband received this list he knew what to do and what had to be fixed, adapted or changed in the properties.  The list was very important because he relied on that to give him direction.  Mrs A explained the pursuer’s Asperger Syndrome means he tolerates engagement in this form rather than at face to face meetings which he struggles to engage in.  She also indicated that for 5 years she took over responsibility for the inspections but when she changed job, a few years ago, she was unable to come to Edinburgh so easily.  She said one year she attended 11 HMO inspections over 2 days.  However, she has now changed her employment from part-time to full time which entitles her to more predictable time off and she indicated she would now be able to attend for inspections again if they were synchronised to the same day.

[11]      Bojan Vemic gave evidence.  He is 34 years old.  He is a qualified electrician and has worked for the pursuer for 4 years.  He indicated that he has done all the upgrading and repair work on the pursuer’s Edinburgh flats for some time.  He described the pursuer as a good landlord who takes his responsibility to keep the HMO properties conform to regulatory standards.  He indicated the pursuer always uses the best materials and the most expensive parts and appliances to satisfy the snagging lists provided by the defender after inspections.

[12]      The pursuer referred me to a letter from Dr PJ, MBBS, DPM, MRCPsych, a consultant psychiatrist, Harley Street, London [PP5/2/1].  This letter confirms the pursuer’s diagnosis in 2005.  In the letter Dr PJ describes Asperger Syndrome:-

 “…as a form of autism, which is a lifelong disability that affects how a person makes sense of the world, processes information and relates to other people.  People with the condition have difficulty in three main areas.  They are often referred to as the ‘triad of impairments’.  They are:

 

A. social communication

B. social interaction

C social imagination.

They also have the following:

D Rigidity of Thought.”

 

Submissions

[13]      Mr McGilvray invited me to refuse the appeal because the defender had complied with the statutory process and reached an inevitable and reasonable decision given the refusal to grant access to inspect the properties.  He accepted the defender had a duty not to discriminate but said reasonable adjustments were made to accommodate the pursuer’s disability.

[14]      The pursuer lodged a comprehensive statement of his position which runs to 7 pages.  Not all of that is relevant but all of it is eloquent of his disability.  It is clear from the content of that document that the pursuer has no objection to inspection of the properties which he in fact welcomes in principle.  The pursuer is adamant, however, that the statutory scheme does not require him to engage in the inspections and from the way he conducted his case and his written submissions it is clear he is inflexible in that view.  The submission is somewhat rambling, unfocused in parts and unrealistic.  However it has given me considerable insight into the pursuer’s condition.

 

Decision

[15]      I would like to make it clear that in my opinion the defender and Mr Mitchell have made significant reasonable adjustments to deal fairly and equally with the pursuer.  It is not disputed that the council allocated a single point of contact for the pursuer to deal with.  This measure was reasonable and intended to be less confusing for him.  The council also gave him repeated opportunities to allow access for inspection.  Notwithstanding that the pursuer is adamant the legislation does not require him to engage in the inspection process.  Prior to this difficulty emerging it seems that Mrs A managed the inspections and the council sent a written list of snagging issues which the pursuer’s disability was able to tolerate and engage with.

[16]      In a case involving hidden disability, like Asperger Syndrome, the pursuer’s inflexibility of mind could be mistaken for wilful defiance.  After hearing Mrs A and seeing the medical evidence relied upon I am satisfied that the pursuer’s apparent intransigence is a symptom of his disability.  Dr PR explained that Asperger cannot be treated and the pursuer will have this for life.  The condition is such that sufferers have difficulty in changing their opinion and find it difficult to adjust.  This is consistent with the pursuer’s insistence that the statutory scheme for mandatory property inspections before HMO licences can be granted does not mean he has to attend the inspection.  Realistically however for the reasons articulated by Mr Mitchell the defender’s policy to conduct inspections with the landlord or an authorised agent present is perfectly reasonable and sound.  Were it not for the pursuer’s disability, I would be inclined to refuse this appeal. 

[17]      However, having given the case some considerable thought I have decided to remit this decision to the defender in terms of s159(b) of the Act for reconsideration.  I do this on the basis that Mrs A indicated in court that she would attend the two property inspections personally if they were synchronised to occur on the same day.  Further, given the pursuer’s disability it seems to me the inspectors would be well advised to prepare a written list of snagging issues for him to address and this should be sent to him.  Mrs A was clear that in the past the pursuer would do nothing after an inspection until ‘the list’ arrived from the council.  It was only once the written list was received that his condition enabled him to engage and respond to it.  While I consider the defender is to be commended for the reasonable adjustment it has made to deal equally with the pursuer given his disability, in my judgment, these additional reasonable adjustments, if accepted and implemented by the defender, would avoid the disproportionate result that a disabled person was refused HMO licence renewals as a direct result of his disability.  I should also make it clear, as I did so at the hearing, that I do not consider the defender can waive its statutory duty to inspect the properties.  Thus, if having made the further reasonable adjustments I have outlined, access is still denied, the defender will be entitled to refuse the HMO licences.

 

Expenses

[17]      I was invited to award expenses in favour of each party in their separate addresses to me. In the circumstances I will make no award of expenses due to or by either party.

 

 

Sheriff T Welsh QC

Sheriff Court

Edinburgh

3 February 2017