By Chris Ryan, Solicitor, Housing and General Court Team
As Social Justice Secretary Alex Neil launches the Scottish Government’s campaign to raise awareness of the benefits of human rights for everyone, we report on a recent success where eviction was prevented on human rights grounds.
River Clyde Homes v Woods, Greenock Sheriff Court, Sheriff C G McKay, 11th September 2015
Alastair Houston, Associate Solicitor and co-ordinator of LSA’s Inverclyde Housing Rights Project represented the tenant in this action.
This is a significant decision as it demonstrates the necessity for a human rights approach and the availability of such a defence which, if absent, would have led to the eviction of a vulnerable tenant.
The decision serves to highlight that the supervision of the court is vital to balancing the rights and interests of landlord and tenant and that access to quality advice and representation where fundamental rights are at stake is crucial.
This is particularly so in cases in which, at first blush, the facts may suggest that eviction is inevitable. i.e. in the present case the facts as they were initially presented were:-
- The tenant had a probationary tenancy with limited security of tenure as the tenant had been evicted from a previous tenancy due to anti-social behaviour;
- During the probationary period, the tenant had allowed her former partner to use her home as a bail address and live with her despite assurances she had given at the outset.
Yet, as will become clear, the full picture was not as straightforward as this (as can often be the case).
The tenant was vulnerable, had previously been the victim of domestic abuse and in this case there was in fact no evidence of anti-social conduct at the tenancy or within the neighbourhood.
As will be discussed, it was the availability of a human rights defence which allowed all the relevant factual disputes and issues to be scrutinised by the Court.
The tenant had obtained her accommodation with River Clyde Homes with the assistance of the local authority’s homeless service after being the victim of a domestic assault by her former partner.
The tenancy granted was a Short Scottish Secure Tenancy.
As readers may be aware, this tenancy has limited security of tenure and can be granted in certain circumstances including if the tenant has previously been evicted due to anti-social behaviour during the previous 3 years, which applied in this case.
Section 36 of the Housing (Scotland) Act 2001 provides that decree for eviction must be granted if the relevant and valid Notice to Quit has been served. There is no provision for a reasonableness defence or ability for the court to use its discretion.
However, in an earlier LSA case, South Lanarkshire Council v McKenna, the Inner House held that eviction actions involving Short Scottish Secure Tenancies could be defended on the basis of a proportionality challenge on human rights grounds and that if a tenant sought to make such a challenge there was a requirement for a landlord to give reasons for seeking eviction.
We instructed Adrian Stalker, Advocate, in that case and we are grateful to him for his assistance in developing the arguments which may be advanced in such cases.
SLC v McKenna followed upon decisions in the Supreme Court of Pinnock and Powell which say there is a high threshold of advancing a seriously arguable case in order to challenge the proportionality of an eviction being granted.
In an earlier judgement in the present case (2015 Hous LR 33), the Sheriff held that there was a sufficiently seriously arguable case to allow the tenant to lead evidence and challenge the proportionality of granting eviction.
Interestingly, the Sheriff contrasted the position in Scotland with that of England where there is a review process for challenging the decision to seek eviction. The lack of such a process in Scotland significantly lowered the bar that a tenant has to overcome to allow proportionality to be argued. I return to this later.
The reasons for the eviction action and the defence
The landlord served a notice to quit to terminate the tenancy after 6 months and sought the eviction of the tenant. Their reasons for seeking eviction were:-
- At the outset of the tenancy the housing officer discussed with the tenant their concern that she would resume the relationship with her former partner. This was a concern for them as the accommodation was offered to her to assist her ending the abusive relationship. They relied on an assurance by her that she would not do so.
- At the time of serving the notice the tenant had indeed resumed the relationship and that he was living with her and had provided the tenancy address as his bail address.
- There were complaints of antisocial conduct at the former partner’s address that involved the tenant and former partner.
The tenant denied this was the case and it was her position that:-
- There had been no breach of the tenancy agreement. There was no contractual provision preventing the former partner from attending the property.
- Whilst the former partner had been released on bail to the tenancy subjects, this was without the tenant’s consent.
- There had been no anti-social behaviour at her tenancy.
- The tenant was vulnerable having suffered domestic violence from her former partner. She had a history of alcohol addiction.
- In all of these circumstances it would therefore be a disproportionate and unnecessary interference with the tenant’s rights to respect for her home in terms of Article 8(2) of the European Convention of Human Rights.
After hearing evidence, the Sheriff found that:-
- The tenant did not give consent to her former partner providing her address as his bail address.
- There was insufficient evidence to establish that her former partner was “living” at the tenancy for a short period after release from bail, and even if this was the case there was no evidence of antisocial behaviour at the tenancy during this period.
- The tenant was warned at the outset that allowing her former partner to live with her could lead to the loss of her tenancy and of the effect of antisocial behaviour in the flat or its neighbourhood. However, the Sheriff was not satisfied that the tenant was warned of the consequence of antisocial behaviour elsewhere.
The Sheriff followed the English Court of Appeal case of Southend-on-Sea v Armour where the Court took account of the tenant’s circumstances not just at the date of serving the notice but also at the date of the hearing. The Supreme Court approved this approach in Pinnock (Lord Neuberger at ).
This was relevant to the present case due to the low threshold which a landlord has to overcome in order to demonstrate it is proportionate to grant an eviction order.
Despite the Sheriff’s reservations about whether the former partner was living with the tenant when he was released on bail, the Sheriff considered the landlord was justified in their approach at that time to issue the Notice to Quit.
However, given the circumstances at the time of the hearing, the following factors tipped the balance in favour of the tenant:-
- The tenant has not been subject to any complaints of anti-social behaviour at the tenancy or in the neighbourhood over 18 months since the start of the tenancy.
- She was rehoused specifically due to homelessness after domestic violence.
- She is a vulnerable individual in light of that and her alcohol abuse.
- She has taken steps to address her alcohol abuse.
- There was no suggestion of her former partner living at the tenancy other than the brief period he gave the subjects as his bail address.
- Eviction would vastly exacerbate her vulnerability at a time when she appears to be successfully addressing her alcohol addiction.
- Any negative elements of her behaviour were very much at the lower end of the scale of criminal behaviour.
The landlord argued that a Short Scottish Secure Tenancy was not probationary in nature and therefore there could be no expectation on the part of the tenant that Short Scottish Secure Tenancy would convert in due course to a Scottish Secure Tenancy.
The Sheriff however accepted our submission that Short Scottish Secure Tenancies are probationary in nature and taking into account the Scottish Government’s guidance agreed that the purpose is to test the ability of the tenant to avoid anti-social behaviour.
In particular, the fact there was no antisocial behaviour at the tenancy was an overwhelming factor which led to the Sheriff finding that it would be disproportionate to grant an order for eviction.
The action was dismissed and the tenant now enjoys security of tenure at the property as a Scottish Secure Tenant.
But for the ability to challenge the eviction action on “proportionality” human rights grounds, this vulnerable lady would have lost her home and stability threatening her recovery from alcohol misuse. The Court would have had no other option even although she did not breach her tenancy agreement.
When in force, Section 36(3)(aa) of the Housing (Scotland) Act 2001, as amended by the 2014 Act, ensures that a landlord provides reasons in a Notice to Quit in relation to Short Scottish Secure Tenancies – an amendment made as a consequence of the SLC v McKenna decision.
Section 36(4A) of the 2001 Act as amended by the 2014 Act (also not yet in force) does introduce the right to review a decision to proceed with eviction action in such circumstances.
The fact there was no such right to a review in the present case lowered the threshold to allow the tenant to argue it was disproportionate to evict.
Therefore the introduction of the right to a review will potentially affect the extent to which tenants will be able to rely on a proportionality defence.
Interestingly, however, in his judgement the Sheriff questions whether the new review procedure will be sufficient given that it provides for the landlord simply reconsidering their decision and that reconsideration being by higher ranking officials of the same organisation (para 38).
As outlined at paragraph 45 of Pinnock:-
“Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end.”
Does an internal review constitute an “independent tribunal”, or does it, as the Sheriff suggests, leave the door open to argue that a lower threshold will continue to apply once the new provisions are in force?
I look forward to finding out!
A full copy of the Sheriff’s decision is available here.