A Scottish Citizen Advice Bureau has admitted that it’s adviser, in a home repossession case, was not authorised to act as an Approved Lay Representative for the Defender.
In General Asset Management v Catherine Ruane, a case which involved a homeowner who had accrued mortgage arrears, Sheriff Jamieson has held Ms Ruane could proceed with her application for recall, as the Approved Lay Representative had not been authorised to act in the initial hearing.
Ms Ruane had accrued mortgage arrears and faced an action for repossession by the secured lender.
At the initial hearing she was represented by a Citizen Advice Bureau employee who sought a continuation, to allow investigation of an insurance policy.
The Pursuer’s agent however, asked for the Court to grant decree. The Sheriff was not convinced, however, either Party had sufficient instructions to address the Court on whether it was reasonable or not to grant decree and continued the case.
At the second hearing, Ms Ruane’s Partner appeared and asked that he represent her, in her absence, which the Sheriff refused.
The Sheriff then continued the case for a second time.
At the third hearing, Ms Ruane did not appear, nor was she represented.
The Sheriff, after representations were made by the Pursuer’s agent, granted decree. Ms Ruane then attempted to recall the decree using a solicitor, but as she had previously been represented by the Citizen Advice Bureau, the Pursuer argued this prevented Ms Ruane succeeding in her application for recall.
The Citizen Advice Bureau, however, had contacted the Sheriff Court to state that their adviser had not been properly authorised under The Lay Representation in Proceedings Relating to Residential Property (Scotland) Order 2010 to act as an Approved Lay Representative.
This Order requires CABx, Local Authorities and other agencies authorised to provide Approved Lay Representatives for home repossesion cases to ensure those representatives are sufficiently experienced, skilled and knowledgeable in repossession law before authorising them to act. They also must have procedure for doing so, and must be able to evidence this.
Sheriff Jameson held that as the Ms Ruane had not been represented by an authorised Lay Representative, she could proceed with her application to recall the decree that had been granted against her.
From the facts of the case, it does not appear the CAB adviser acted negligently, albeit all the facts are not known.
At the first hearing, to request a continuation to investigate an insurance policy appears to have been a perfectly reasonable approach and one any qualified solicitor may have taken.
It’s also interesting to note, at the first hearing the Sheriff was not convinced either party had instructions to address him on the reasonableness of granting decree to evict, despite the agent for the Puruser’s submitting it was reasonable.
Why at the second hearing the client’s Partner appeared and asked to represent her is not clear. Why the CAB adviser was not present is not known either. We do not know if the Bureaux had declined to provide further representation or whether the client failed to instruct them.
Why at the final hearing, Ms Ruane did not appear and was not represented is not clear either.
However, the CAB admission that their adviser was not authorised to represent the client is significant . The thought that an adviser was able to represent in a repossession case and was not authorised must surely lead to questions being asked.
Fortunately, however, that admission did allow Ms Ruane to continue with her application for recall.
This case clearly raises questions why an unauthorised adviser was able to represent in a repossession case, although from the facts there does not appear to be any indication the adviser was negligent, which raises the question why did the CAB later state their adviser was not authorised.
It’s pure speculation, but knowing Dumfries and Galloway CAB (which is a highly respected Bureau) and many of their advisers, many of whom are more than capable, I am wondering if their inability to evidence the procedure they used to authorise their representative was the problem?
It’s easy to see how, where a solicitor requesting a recall for a client who may have been represented by a Bureau adviser, may seek evidence that an adviser was properly authorised. If that Bureau, or other advice agency, was not able to evidence the process they had used, it would seem possible that agency could be challenged on whether they had properly authorised their staff member to act in accordance with the legislation.
Clearly advice agencies will have to ensure, where they don’t already, that they have clear formal procedures in place for authorising Approved Lay Representatives.
It is also possible to see how this may now have implications for Money Advice agencies and Insolvency Practitioners in relation to the Debt Arrangement Scheme and Certificate of Sequestration, where staff members can be authorised to act by the Organisation or Insolvency Practitioner.
Verbal authorisation may not be enough and clear policies and procedures should be in place to show that any authorisation has been carried out legitimately and in accordance with legislative requirements.