Upper Tribunal refuses landlords permission to appeal repairing standard order over leaking roof

About this case:

• Citation:
  2026UT85
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Jillian Martin-Brown

The appellants appeared on their own behalf at the permission hearing. The respondent tenant, Maria Del Cristo Hernandez Diaz, did not attend; her solicitor, Mr Marshall of Dundee Law Centre, wrote to confirm that she maintained that the First-tier Tribunal’s decision was correct.

Roof found not wind and watertight

Ms Diaz applied to the First-tier Tribunal for Scotland’s Housing and Property Chamber for a determination that her landlords had failed to comply with their duty under section 14(1)(b) of the Housing (Scotland) Act 2006 to ensure that the property met the repairing standard throughout the tenancy.

The tribunal inspected the house on the morning of 5 February 2026 and held a hearing later that day. It concluded that the landlords had failed to comply with the repairing standard and made a Repairing Standard Enforcement Order requiring them to carry out such work as was necessary to ensure that the roof was wind and watertight, in a reasonable state of repair and in proper working order.

The works were required to be completed within 13 weeks. The landlords sought permission from the FTS to appeal, but this was refused in May on the basis that no arguable point of law had been identified. They then applied directly to the Upper Tribunal. By the time of the permission hearing, the roof had been replaced in July 2026. The landlords nevertheless maintained that the appeal was not academic because the existence of the enforcement order could have consequences for their inclusion on the Scottish Landlord Register.

Their challenge concerned the FTS’s assessment of the weather conditions and its conclusion that the roof was not wind and watertight. They argued that the tribunal had no evidential basis for describing the weather at the time of the inspection as unexceptional and had failed adequately to account for prolonged rainfall and storms in the preceding weeks.

They also contended that the FTS had misapplied the test derived from Wolfson v Forrester concerning whether a property was wind and watertight against the “ordinary attacks of the elements”, as opposed to exceptional encroachments of water. Their position was that some dampness to the sarking was consistent with the construction of a traditional open slate roof and that the tribunal had placed too much emphasis on the presence of water in the roof space when there was no active ingress into the living accommodation.

AI-assisted grounds clarified

Sheriff Martin-Brown recorded that the landlords had been candid that they used artificial intelligence to assist in drafting their grounds of appeal. She observed that, “as is frequently the case”, this had resulted in “vague, lengthy written submissions which did not make much sense”. Following discussion at the hearing, however, the appeal was distilled into four grounds: whether the FTS erred in finding the weather conditions unexceptional; whether it applied the wrong test to water penetration; whether its reasons for rejecting the traditional open-roof argument were inadequate; and whether it had failed to take account of material considerations concerning the roof and preceding weather.

On the first ground, the Upper Tribunal noted that the FTS had recorded overcast conditions with light to moderate rain on the day of inspection. Sheriff Martin-Brown said such conditions were “self-evidently unexceptional in Scotland”. The FTS had also considered the landlords’ submissions about severe wet weather during January and the absence of active water ingress into the rooms below the roof. Further information about storms, rainfall and wind later supplied by the landlords had not been before the FTS when it conducted the hearing.

The tribunal had been entitled to determine whether the roof was wind and watertight from its inspection and the material available to it at the time. If the landlords maintained that the weather had been exceptional, it was for them to provide supporting evidence, and they had not done so at the hearing.

No arguable error of law

The Upper Tribunal also rejected the argument that the FTS had applied the wrong legal test to the condition of the roof. The FTS had expressly referred to the statutory guidance incorporating the test in Wolfson, under which a property must be wind and watertight against ordinary attacks of the elements rather than exceptional incursions of water.

It had additionally considered guidance requiring essential fabric elements of rented properties to be in good repair and properties to be substantially free from penetrating dampness. Although water was not entering the living accommodation directly at the time of inspection, the FTS had observed that it was affecting the roof and attic space, which were essential fabric elements of the building.

The tribunal, comprising a legal member and a surveyor, had been entitled to rely on its own observations during the inspection in concluding that the roof did not meet the repairing standard. Sheriff Martin-Brown similarly rejected the contention that insufficient reasons had been given for dismissing the landlords’ argument that damp sarking was to be expected in a traditional open slate roof.

The FTS’s observation of water ingress affecting essential parts of the building provided a sufficient reason for rejecting that contention, even though the water had not penetrated into the living areas. Nor had the FTS failed to take account of relevant matters. Its decision recorded the material available before the hearing, its own inspection, oral representations, the condition of the roof, statutory guidance and whether exceptions to the repairing standard duties applied. It had also taken account of matters favourable to the landlords. The tenant accepted that repairs to damaged paintwork in the bedrooms had been satisfactorily completed, and there was no evidence of associated mould growth or continuing damage. The FTS therefore found no breach of the repairing standard in relation to those matters.

Sheriff Martin-Brown said the tribunal’s reasons were “adequate and comprehensible” and that it was unnecessary for it to address “the minutiae of each and every point taken”. The landlords’ disagreement with the FTS’s factual assessment did not disclose an error of law. As permission could only be granted where there was an arguable ground of appeal on a point of law under section 46 of the Tribunals (Scotland) Act 2014, permission was refused on all four grounds.