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SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
[2025] SC GLA 2
GLW-SD33-22
JUDGMENT OF SHERIFF S REID
in the cause
WHEATLEY HOMES GLASGOW LIMITED
Pursuer
against
YASMIN ABDI SHARIF
Defender
Pursuer: Mr D.D. Anderson, Advocate; Wheatley Group Litigation Services, Glasgow
Defender: Mr K.T. Young, Advocate; Shelter Housing Law Service, Edinburgh
Glasgow 22 January 2025
The sheriff, having resumed consideration of the cause, Makes the following FINDINGS-IN-
FACT:
(1)
The pursuer is the landlord, and the defender is the tenant, of the residential
property known as Flat 18/2, 12 Dobbies Loan Place, Glasgow, G4 0BL ("the Subjects").
(2)
The defender occupies the Subjects in terms of a Scottish secure tenancy.
(3)
Her tenancy commenced on 28 November 2003.
(4)
The defender resides at the Subjects with her two daughters, Lila Hassan (aged 18)
and Asha Hassan (aged 21).
(5)
The defender was born in Somalia, she lived in a succession of refugee camps due to
dislocation caused by civil war there, and she came to London in 2001.
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(6)
For many years (including during the period from 2017 to 2021), the defender has
suffered, and continues to suffer, from a severe and enduring mental illness formally
categorised as Unspecified Psychotic Disorder, at times diagnosed as possibly being
paranoid schizophrenia; it is a significant mental impairment; it is a life-long condition; it
affects her ability to carry out day-to-day activities; when medicated she is exhausted and
stays in her home; when not properly medicated, she loses her ability to distinguish
delusion from reality.
(7)
Between 28 November 2003 and August 2017, the defender resided in the Subjects
without any reported breach of her secure tenancy agreement, or any reported incident or
third party complaint of anti-social behaviour or criminal conduct.
(8)
In around July 2017, the defender stopped taking her prescribed anti-psychotic
medication and disengaged from psychiatric support services.
(9)
Between August 2017 and July 2021, the pursuer received various complaints
regarding the defender's behaviour at, or in the locality of, the Subjects.
(10)
On 23 August 2017 at the pursuer's housing office at 40 Charles Street, Glasgow, in
the vicinity of the Subjects, the defender behaved in a threatening or abusive manner in that
she shouted, swore, uttered threats and behaved in an abusive manner, contrary to
section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 ("the 2010 Act"); she
was convicted of this offence on 26 November 2018; she was ordered to pay a fine of £150;
and item 2 in the pursuer's first inventory of productions is a true copy of the extract
conviction pertaining thereto.
(11)
On 24 August 2018 at 12 Dobbies Loan Place, Glasgow, in the vicinity of the Subjects,
the defender assaulted an individual by repeatedly attempting to strike him with a piece of
wood; she was convicted of this offence on 27 February 2019; she was admonished; and
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item 4 in the pursuer's first inventory is a true copy of the extract conviction pertaining
thereto.
(12)
On 5 November 2018 at the pursuer's premises at Charles Street, Glasgow, in the
vicinity of the Subjects, the defender behaved in a threatening or abusive manner, in that she
shouted, swore, uttered threats of violence and acted in an aggressive manner, contrary to
section 38(1) of the 2010 Act, all while subject to an extant bail order dated 19 September
2018; she was convicted of this aggravated offence on 22 November 2019; she was
admonished; and item 5 in the pursuer's first inventory is a true copy of the extract
conviction pertaining thereto.
(13)
On 25 April 2019 an interim anti-social behaviour order ("ASBO") was granted by
the sheriff at Glasgow against the defender in civil summary application proceedings at the
instance of the pursuer, in terms of the Antisocial Behaviour etc., (Scotland) Act 2004,
section 9(1); the interim ASBO was initially time-limited, but subsequently became indefinite
in duration; it remains in force; in its terms, it prohibits the defender from (i) shouting,
swearing or otherwise causing noise within the Subjects or within the vicinity thereof at
such a level as to cause alarm, distress, nuisance or annoyance to neighbouring residents
going about their lawful business there; (ii) approaching or entering the pursuer's offices or
otherwise contacting the pursuer's staff at 40 Charles Street, Glasgow, the concierge station
at 2 Taylor Place, Glasgow, or any other office of the pursuer; and (iii) from engaging in
threatening, abusive or aggressive behaviour towards any members of the pursuer's staff or
contractors, or visitors to neighbouring residences, or persons going about their lawful
business there or in the vicinity.
(14)
On 19 July 2019 at 2 Taylor Place, Townhead, Glasgow, in the vicinity of the Subjects,
the defender behaved in a threatening or abusive manner in that she shouted and swore
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while holding a brick, contrary to section 38(1) of the 2010 Act; on 23 July 2019 at St Mungo
Place, Glasgow, in the vicinity of the Subjects, the defender assaulted an individual and
seized hold of her hair, struck her on the body with a stick, and struck her on the body with
her hand, all while subject to the interim ASBO dated 25 April 2019; on 23 July 2019 at St
Mungo Place, Glasgow, in the vicinity of the subjects, the defender assaulted an individual
and threw a bottle at him causing the bottle to strike him on the head, while the defender
was subject to the interim ASBO; on 18 August 2020 at St Mungo's Primary School,
Glasgow, in the vicinity of the subjects, the defender had with her, without reasonable
excuse or lawful authority, an offensive weapon, namely a hammer, contrary to section 47(1)
of the Criminal Law (Consolidation) (Scotland) Act 1995 ("the 1995 Act"), while the
defender was subject to the interim ASBO; and on 18 August 2020 at St Mungo's Primary
School, Glasgow, within the vicinity of the subjects, the defender behaved in a threatening
or abusive manner in that she struck railings with a hammer, shouted and swore, contrary to
section 38 of the 2010 Act, while the defender was subject to the interim ASBO; she was
convicted of these offences on 24 May 2021; she was made subject to a community payback
order (with an offender supervision requirement for a period of 3 years) and a restriction of
liberty order for a period of 270 days; and item 6 in the pursuer's first inventory is a true
copy of the extract conviction pertaining thereto.
(15)
On 1 April 2021, outside Flat 16/2, 12 Dobbies Loan Place, Glasgow, in the vicinity of
the Subjects, the defender behaved in a threatening or abusive manner in that she shouted
and repeatedly uttered threats of violence towards an individual, contrary to section 38(1) of
the 2010 Act, while the defender was subject to a separate bail order dated 19 August 2020;
on 1 April 2021, at the common parts outside Flat 16/2, 12 Dobbies Loan Place, Glasgow, in
the vicinity of the Subjects, the defender had with her, without reasonable excuse or lawful
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authority, an offensive weapon, namely a piece of wood with nails or similar items
protruding from it, contrary to section 47(1) of the 1995 Act, while she was subject to an
extant bail order dated 19 August 2020; she was convicted of these offences on 29 March
2021; she was made subject to a community payback order (with an offender supervision
requirement for a period of one year) and a restriction of liberty order for 10 weeks; and
item 14 in the pursuer's third inventory is a true copy of the extract conviction pertaining
thereto.
(16)
On 25 July 2021 at the ground floor of 12 Dobbies Loan Place, Glasgow, in the
vicinity of the Subjects, the defender behaved in a threatening or abusive manner in that she
acted in an aggressive manner towards an 86 year old couple, she lunged towards them, and
she repeatedly shouted and swore, contrary to section 38 of the 2010 Act, all while she was
subject to an extant bail order dated 3 April 2021; on 25 July 2021 the defender breached a
special condition of a bail order dated 3 April 2021 by approaching and contacting the same
couple, contrary to section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995; she was
convicted of these offences on 25 August 2021; she was admonished; and item 10 in the
pursuer's first inventory is a true copy of the extract conviction pertaining thereto.
(17)
On 23 November 2020 at Dobbies Loan Place, Glasgow, in the vicinity of the subjects,
the defender behaved in a threatening and abusive manner in that she uttered threats of
violence to an individual, repeatedly struck railings with a metal pipe or similar object, and
behaved in an aggressive manner, contrary to section 38(1) of the 2010 Act, all while she was
subject to an extant bail order dated 19 August 2020; further, the offence was racially
aggravated; she was convicted of the offence on 15 November 2022; she was admonished;
and item 24 of the pursuer's sixth inventory is a true copy of the extract conviction
pertaining thereto.
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(18)
On 16 August 2020 at 2 Taylor Place, Glasgow, in the vicinity of the Subjects, the
defender behaved in a threatening or abusive manner in that she shouted, swore, acted in an
aggressive manner, repeatedly banged on the Perspex screen of the concierge station and
place employees there in a state of fear and alarm, contrary to section 38(1) of the 2010 Act,
all while the defender was subject to the interim ASBO; she was convicted of the offence on
5 August 2022; she was made subject to a community payback order (with an offender
supervision requirement for a period of 6 months); and item 25 in the pursuer's seventh
inventory is a true copy of the extract conviction pertaining thereto.
(19)
Item 16 in the pursuer's fifth inventory comprises a series of incident report forms
compiled by the pursuer's staff; these forms contain contemporaneous records of reports
received by the pursuer's staff concerning anti-social behaviour by the defender during the
period between August 2017 and July 2021; some of the behaviour recorded therein resulted
in criminal prosecution and the convictions detailed above, and some did not result in
prosecution or conviction; but, in any event, the behaviour recorded therein did occur
during the period in the manner described in the said incident report forms.
(20)
In October 2021, the defender re-engaged with psychiatric support services.
(21)
On 26 November 2021, the pursuer served upon the defender a notice of proceedings
for recovery of possession of the Subjects, of which item 11 in the pursuer's first inventory is
a true copy.
(22)
In December 2021, the defender was admitted to Stobhill Hospital for a period of 10
days for psychiatric intervention due to a diagnosed relapse into psychosis.
(23)
During this period of hospital admission in December 2021, the defender's anti-
psychotic medication was reviewed and changed.
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(24)
Since December 2021, the defender has been receiving regular psychiatric treatment
and an adjusted prescribed anti-psychotic medication; the defender has been, and remains,
compliant with this adjusted prescribed medication; she has diligently attended monthly
psychiatric appointments to monitor her mental health; the defender's recovery from her
diagnosed relapse in psychosis has been significant and remarkable; and the medical
prognosis for the defender's recovery is good.
(25)
Since July 2021, there have been no further incidents of anti-social behaviour or
criminal conduct by the defender in, or in the vicinity of, the Subjects.
(26)
Since December 2021, there have been no further episodes of florid psychotic relapse
suffered by the defender.
(27)
The defender's anticipated future engagement with her ongoing psychiatric
treatment, and anticipated compliance with her adjusted prescribed medication, is reliably
assessed as being good.
(28)
The defender's risk of criminal offending is reliably assessed as being low.
(29)
The foregoing anti-social and criminal conduct by the defender was directly
attributable to a significant deterioration in her mental health (comprising episodes of florid
psychosis, auditory hallucination, and delusional beliefs in respect of her neighbours); that
conduct was directly referable to her diagnosed, life-long mental disability; and it coincided
with a period of non-compliance by the defender with her prescribed antic-psychotic
medication and non-engagement with psychiatric support services between around July
2017 and late 2021.
(30)
If the defender is evicted from the Subjects, it is likely that her mental health recovery
will be significantly disrupted, that the defender will disengage with the settled psychiatric
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supports and prescribed medications currently in place, and that she may relapse into
further episodes of psychosis.
(31)
On 22 May 2023, the pursuer offered to grant to the defender a short Scottish secure
tenancy of an alternative property in the local area, but the defender refused the offer.
(32)
On around 13 June 2024, the defender was served with a summary complaint against
her at the instance of the Procurator Fiscal, Glasgow; in the complaint, it is alleged that she
breached the interim ASBO dated 25 April 2019, in that, on two brief occasions between
26 January 2024 and 30 January 2024, she approached the pursuer's concierge station at 2
Taylor Place, Glasgow and enquired of the pursuer's concierge staff there about obtaining a
new key to access the communal close serving the Subjects; the concierge staff reminded the
defender of the existence of the interim ASBO, she was asked to leave, and the defender
duly complied; the first incident lasted about 73 seconds, and the second incident lasted
about 20 seconds; the defender has tendered a plea of not guilty to the charge in the
summary complaint; and a trial diet has been assigned.
Makes the following FINDINGS-IN-FACT AND IN-LAW:
(1)
The pursuer has a ground for recovery of possession of the Subjects in terms of
paragraph 2 of schedule 2 to the Housing (Scotland) Act 2001 ("the 2001 Act"), in respect
that the defender has been convicted of criminal offences, punishable by imprisonment,
committed in the locality of the Subjects.
(2)
The pursuer has a ground for recovery of possession of the Subjects in terms of
paragraph 7 of schedule 2 to the 2001 Act, in respect that the defender has acted in an anti-
social manner in relation to persons residing, and engaged in lawful activity, in the locality.
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(3)
The pursuer duly served upon the defender a notice of proceedings for recovery of
possession of the Subjects, and timeously commenced the present proceedings, in
compliance with section 14 of the 2001 Act ("the section 14 notice").
(4)
The section 14 notice was timeously served on the defender in compliance with
section 16(2)(aa)(ii) of the 2001 Act (that is, within 12 months of the dates of the convictions
referred to in findings-in-fact (14), (15) & (16)).
(5)
The grant of an order for recovery of possession of the Subjects in these proceedings
would be disproportionate, in terms of Article 8, ECHR; it would constitute a violation of the
defender's Convention right thereunder; and it would be unlawful, in terms of the Human
Rights Act 1998, section 6.
(6)
Separatim the defender is disabled; the defender's condition is a long-term mental
impairment; the present proceedings arise in consequence of the defender's disability; the
present proceedings constitute unfavourable treatment of, and unlawful discrimination
against, the defender; and the grant of an order for recovery of possession of the Subjects in
these proceedings would be disproportionate and unlawful, all in terms of sections 6 & 15 of
the Equality Act 2010;
(7)
Separatim the grant of an order for recovery of possession of the Subjects in these
proceedings would not be reasonable, in terms of section 16(2)(a)(ii) of the 2001 Act.
Makes the following FINDINGS-IN-LAW:
(1)
The grant of an order for recovery of possession of the Subjects being an unlawful
violation of the defender's Convention right under Article 8, ECHR and section 6 of the
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Human Rights 1998 Act et separatim unlawful in terms of section 15 of the Equality Act 2010,
the order as craved should be refused;
ACCORDINGLY, Refuses the pursuer's motion for decree as craved; Grants decree of
absolvitor in favour of the defender, whereby, Assoilzies the defender; meantime, Reserves
sine die the issue of expenses.
NOTE:
[1]
The pursuer (a public sector landlord) seeks to evict the defender (a secure tenant)
from her home.
[2]
The defender has held the secure tenancy for over 21 years. For the first 14 years or
so, she lived a quiet life there, with no reported breach, complaint or incident. However,
between 2017 and 2021 (a period of nearly 4 years), she engaged in an escalating spate of
serious anti-social behaviour in the vicinity of the Subjects, directed at neighbours and the
pursuer's staff. Some of this behaviour was prosecuted, resulting in multiple summary
criminal convictions. Since August 2021 (that is, a period in excess of three years), there has
been no repetition of the behaviour.
[3]
The pursuer proceeds under the "normal" eviction process (Housing (Scotland) Act
2001, section 16(2)(a)) and founds upon two statutory grounds for recovery of possession: (i)
that the defender has been convicted of criminal offences, punishable by imprisonment,
committed in the locality of the Subjects, and (ii) that the defender has pursued a course of
anti-social conduct in relation to persons residing or lawfully engaged in the locality (2001
Act, schedule 2, paragraphs 2 & 7). Both grounds of possession are admitted by the
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defender. Therefore, the court "must" make an order for recovery of possession, provided it
appears to the court that it is "reasonable" to do so (2001 Act, section 16(2)(a)(ii)) subject to
"any other rights" that the tenant may have by virtue of any other enactment or rule of law
(2001 Act, section 16(3A)).
[4]
In addition, the pursuer proceeds under the so-called "stream-lined" process for
eviction (2001 Act, section 16(2)(aa)). This new process (introduced by section 14(2) of the
Housing (Scotland) Act 2014) applies inter alia where the tenant has incurred a criminal
conviction, punishable by imprisonment, for tenancy-related anti-social or criminal
behaviour, provided a statutory notice to that effect has been served upon the tenant within
12 months of the date of conviction. Again, this ground of possession (and the timeous
service of the relevant statutory notice) are admitted by the defender. Therefore, again, the
court "must" grant the order for recovery of possession but the key difference from the
normal eviction process is that, under the "stream-lined" process, there is no requirement
for the court to be satisfied that it is "reasonable" to do so. That said, the grant of the order
remains subject to "any other rights" that the tenant may have by virtue of any other
enactment or rule of law (section 16(3A), 2001 Act).
[5]
What "other rights" might the tenant invoke to resist eviction when the court is
otherwise enjoined to grant the order?
[6]
In this case, the defender claims that her eviction would constitute (i) a violation of
her Convention right to respect for her home, contrary to Article 8, ECHR (and the Human
Rights Act 1998, section 6); and (ii) unlawful disability discrimination, contrary to the
Equality Act 2010, section 15. Specifically, she says that she has a life-long mental disability;
that the spree of anti-social and criminal conduct founded upon was an aberration,
attributable to a serious but temporary deterioration in her mental health over that period;
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that her mental health has significantly improved and stabilised through proper medical
intervention; and that the risk of a relapse and recurrence in the offending behaviour is low.
[7]
On the evidence, I conclude that both defences are established. Accordingly, I have
assoilzied the defender. I explain my reasoning below.
The evidence
[8]
Over the course of three days I heard oral testimony from six witnesses for the
pursuer and five witnesses for the defender (including the defender herself). To their credit,
parties also tendered two substantial joint minutes agreeing large tranches of fact and
evidence. I summarise the oral testimony as follows.
Chris Heron
[9]
Mr Heron (49) has been employed as the pursuer's environmental warden (or
"concierge") for 20 years. He spoke to contemporaneous reports (in item 16, pursuer's fifth
inventory of productions), prepared by him and his colleagues, of multiple incidents
involving the defender, including verbal assault, aggression, and possession of weapons. In
cross-examination, he spoke to reports of the defender "randomly accusing anyone, even the
shopkeeper" of inciting people to "annoy her" (item 16L, pursuer's fifth inventory);
complaining of persecution and racism at the hands of the concierge staff, all without
justification (item 16I, pursuer's fifth inventory); and, generally, of presenting as being
"pretty disturbed and irrational".
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Denise Black
[10]
Ms Black (42), the pursuer's housing officer, spoke of her dealings with the defender
following the receipt of complaints from 2019 onwards. In cross-examination, she confirmed
she was not aware of any reported anti-social behaviour by the defender since 2021. She had
given no thought to referring the defender for mental health assessment. If she had been
aware of the defender's allegation (item 16Q, pursuer's fifth inventory) that the pursuer was
"in league with the devil" and "associated with terrorists", she may have convened a
conference with social workers to discuss options.
Joanne Simpson
[11]
Ms Simpson (49), a housing officer with the pursuer for over 20 years, was latterly
responsible for investigating complaints of anti-social behaviour. Her employment ended in
2019. In August 2017, she received a complaint of anti-social behaviour by the defender.
This was referred to as a "category A case" because it involved a threat to kill a member of
the pursuer's staff. She also referred to an incident in 2018 when the defender attempted to
assault an elderly neighbour with a plank of wood. The neighbour was said to have been
"unbelievably upset, crying, terrified". Ms Simpson's role was to investigate the allegations,
offer an opportunity to the alleged perpetrator to explain the position, and identify any
supports that could be given (including mental health referrals). She spoke to her
contemporaneous notes of interviews/interactions with the defender (item 18, pursuer's fifth
inventory). She described the defender's demeanour at the meetings as "unremorseful".
Her impression was that the defender "100%" knew what she had been doing. In the course
of interviews, the defender denied having any mental health difficulties, though
Ms Simpson acknowledged that it was "quite easy to think that [the defender] did have
14
mental health issues due to her behaviour". Ms Simpson testified that she would
"absolutely" have referred the defender to a mental health support agency (such as SAMH)
if she had understood the defender to have had mental health problems. In the event, she
referred the defender to a separate support organisation (Loretto) for "anger management
issues" (not for mental health assessment or support), but the referral was not taken up by
the defender. Ms Simpson testified that the pursuer's staff had "a horrendous time" due to
the defender's "verbal abuse", assaults and other conduct, all with "absolutely no remorse
from [the defender]". She insisted that eviction was still necessary and appropriate due to
the seriousness of the conduct and the "long-standing effect" on elderly neighbours (albeit
one had since died). She considered it would be "horrendous" for anyone who had
experienced the defender's "abuse" to continue having contact with her in the common
parts of the building. In cross-examination, Ms Simpson testified that the defender "did not
come across as someone who was unwell". Therefore, mental illness was not taken into
account by her in her decision-making.
Asharet Sadiq
[12]
Mr Sadiq (57), a former police officer with 17 years' service, now employed by the
pursuer for nearly 20 years, was tasked with investigating complaints involving the
defender. The decision to recover possession had already been taken. His role was to
"prepare the legal case" for eviction. This involved going back through the "old cases"
looking for missing information. He spoke to an elderly couple (Mr & Mrs McConnell) who
had been subjected to abuse by the defender back in 2018; they were "disappointed" with
the pursuer; they complained that, despite their reports, the defender continued to reside in
the building, she had not been evicted, and "nothing had happened". Mr McConnell had
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died in November 2023; Mrs McConnell continues to live there on her own. Another
neighbour (Mr McDade), who spoke to an earlier incident in 2020, also complained that the
pursuer had been too slow and "should have done more" to remove the defender.
Mr McDade had told Mr Sadiq that "the noise and banging was still happening", but that
Mr McDade had not reported it to the pursuer as he did not want the defender to re-appear
at his door. Mr Sadiq insisted that eviction was still necessary (as at 2024) to avoid
neighbours having to "live in fear" of the defender. He confirmed that the defender is not
often seen around the neighbourhood; at one point, neighbours thought she had been
evicted; and he speculated that she may be remaining within her home. In cross-
examination, he confirmed there had been no recurrence of reported abusive or violent
behaviour by the defender since 2021. He acknowledged this indicated "an element of
success", but considered that the defender could "relapse at any time" and "go back to
abusing her two elderly neighbours". She had a "track record" of simply becoming abusive
when her requests were refused. In re-examination, he observed that the defender had been
invited to alert the pursuer to any "mental health issues", but she had not done so.
James Thomas Pettigrew
[13]
Mr Pettigrew (55) is the pursuer's locality housing director. In 2022, he took the
decision to seek the defender's eviction. He acknowledged that some time had passed since
that decision was taken; he acknowledged that there had been no recurrence of the
defender's anti-social behaviour since 2021; he did not recall any suggestion, at the time of
his decision, that the defender may have been suffering from mental ill-health; but he
considered that eviction remained the appropriate course of action due to the nature and
severity of the defender's anti-social behaviour and the "overall impact on the health and
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well-being of the neighbours and staff". Receipt of Dr Omer Rashid's medical report had
prompted the pursuer (in May 2023) to offer the defender a "probationary tenancy" (a short
Scottish secure tenancy) in a different locality to "alleviate the fears of neighbours", but the
offer was declined (item 26, pursuer's eighth inventory). In cross-examination, Mr Pettigrew
confirmed that, prior to his decision to evict, he was unaware of any discussion (within the
pursuer's organisation) as to whether the defender might need psychiatric support. With
reference to item 16Q of the pursuer's fifth inventory (an incident report form bearing to
record the defender's allegation that the pursuer was "in league with the devil" and
"associated with terrorists"), he did not consider this sort of allegation to be unusual. Erratic
behaviour did not always indicate a mental health problem. He testified that eviction was
being pursued because the pursuer had a duty to protect its staff and residents from such
conduct; the pursuer's staff are "very uneasy that this may happen again"; and "the
concierge staff and neighbours are unhappy she [the defender] is still living in the same
block". The pursuer, he said, had adequately taken account of any mental health issues of
the defender by offering her a probationary tenancy. If this offer had been accepted, it
would by now have "converted" to a full secure tenancy. The defender's anti-social
behaviour may have ceased, but he speculated that this may be attributable to the sanction
of the ongoing court action.
Yasmin Sharif
[14]
The defender (43) was born in Somalia, left that country due to civil war, travelled to
Yemen, lived in various refugee camps there, and arrived in London in 2001. She obtained
the tenancy in 2003. She lives there with her two daughters. She claimed to have suffered
mental illness since 2008. She had been given medication but it had not been good for her.
17
Between 2017 and 2021, she was "sick"; she did not remember much; she recalled getting
angry every time a letter came to her from the pursuer's housing office with neighbour
complaints. She was now on medication that was working for her. She felt calmer. She was
not bothering anyone. She had not been in trouble with the police or neighbours since
starting her new medication. She has "come to know" that she needs it to "be healthy". She
stays at home most days. Her medicine exhausts her. Her daughters look after her. She
goes to a community centre once or twice a week and attends her doctor once a month. She
testified that eviction would cause her a lot of stress and affect her health condition. She
would be sad and worried that she would have to go to another doctor who did not know
about her condition. In cross-examination, she denied ever using cannabis. She insisted that
statements in her medical records to that effect were untrue; she had been "sick" and
suffering "mental illness" when she made them; she "did not know what she was saying".
She said she was "constantly worried about eviction". Her children had been born in the
Subjects; she was used to the flat; she could not find alternative accommodation with her
family in London; and that she was dependent on her daughters to look after her.
Asha Sharif
[15]
Asha Sharif (21) is the defender's eldest daughter. She lives in the Subjects with her
mother and younger sister. The sisters have lived there all their lives. She is a College
student. She intends to pursue an HNC. She works part-time. The period between 2017
and 2021 was "tough"; her mother was "paranoid"; she thought "everyone was against her";
she would become "hostile". These episodes were "a complete contrast" to her mother's
"normal" behaviour. Her mother's condition deteriorated during the pandemic when she
felt isolated and lost, not least because her younger sister was elsewhere at that time. The
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sisters did not know how to help her. She described trying to "de-escalate the situation"
during that period but, due to her young age, she was not taken seriously. Her mother's
behaviour only improved when she was admitted to Stobhill Hospital and received
treatment there. She ascribed the improvement in her mother's behaviour to the medicine
she was now taking. She wished that medication had been introduced much sooner. Her
younger sister is now at home more often to help the defender. The defender now has a
normal daily routine: she goes out early for the groceries before the children are awake; she
attends a couple of women's groups; she has rediscovered her faith and humour. She
denied that her mother had previously consumed drink or drugs. The family feel very
attached to the property. The sisters attended the local primary school and are volunteers in
a nearby youth community initiative. The family could not afford to rent privately: her
mother does not work; her sister is at University; and Asha works only part-time. In cross-
examination she stated that her mother had not taken alcohol or drugs since October 2021
(when she started her current mental health treatment), but she did not know the position
prior to that date. In re-examination, she clarified that she had never personally seen her
mother taking any drugs or alcohol.
Lila Hassan
[16]
Lila Hassan (19), the defender's youngest daughter, lives with her mother and elder
sister (though she lived elsewhere during the Covid lockdown). She studies politics at
University. Between 2017 and 2021, she was aware her mother had "some issues" but did
not understand what was wrong, and did not remember much. She noticed differences in
her mother's personality at that time: her mother would get into arguments with
neighbours, which had never happened before; she saw her mother talking to herself and
19
talking to the walls. She was aware her mother was trying out different medicines at this
time. In her sixth year at school, she accompanied her mother to a psychiatrist and
discovered that her mother had schizophrenia. Once her mother "got her medicine right",
her behaviour improved and the problems have not recurred. She has had no arguments
with any neighbours since. She described her voluntary work in a local children's
community group located close to their home. She had never seen her mother consume
alcohol or drugs. In cross-examination, she conceded that she had heard from male siblings
that there was a time when her mother had consumed alcohol and drugs. She had never
seen this herself. She denied telling her mother's GP that her mother drank "a lot".
Phil Wheat
[17]
Mr Wheat (64) is a social worker of 40 years' experience, employed by Glasgow City
Council. He qualified in 1987 with a post-graduate Diploma in Criminal Justice Social
Work. He adopted the terms of his report (item 3, defender's third inventory). He was the
defender's supervising officer under various community payback orders imposed upon her;
all have now expired, bar one which will expire later in 2024. He testified that the defender
attended "extremely well" in compliance with the orders; she had fully complied with them;
no warnings were issued; no criminal charges are outstanding; she is in regular contact with
health services; she has engaged well, on an out-patient basis, for treatment of her mental
health; her attendance at clinics has been "very good"; she has been compliant with her
psychiatric medication; there is no evidence of any drug or alcohol misuse by her; and, in his
professional opinion, her period offending conduct was related to her psychiatric ill-health.
As part of his professional role, he must assess the likelihood of the defender re-offending.
He has assessed that risk as being "low". In cross-examination, he conceded that
20
establishing a causal link between the defender's offending and her mental health was a
matter for a psychiatrist, but he insisted that all the surrounding circumstances drew him to
his own conclusion on this matter. He conceded he was unaware of any prior history of
drug or alcohol use by the defender. The medical consultants with whom he had liaised
over three years had never raised any such concern with him, nor had they identified any
such consumption as a material factor in her offending.
Dr Omer Rashid
[18]
Dr Rashid (47), a consultant psychiatrist, adopted the terms of his expert report
(item 14, defender's fifth inventory). He described the common symptoms of psychosis. He
explained why "in all likelihood" the defender was "experiencing symptoms of relapse of
psychosis" during the period from 2017 (when she discontinued her then prescribed
medication) to 2021 (when she re-engaged with psychiatric services and her prescribed
medication was changed). He spoke of his prognosis for her recovery and opined on the
likely impact of eviction on her mental health. In cross-examination, he was pressed on the
reliability of his assessment of probabilities and possibilities.
Closing submissions
[19]
Full written submissions were lodged for both parties, for which I am grateful.
[20]
For the pursuer, I was invited to conclude that the legitimate aims of the pursuer, as
landlord, outweighed any speculative, weakly-evidenced consequence for the defender, as
tenant. The proportionality assessment under Article 8, ECHR was a "largely forward-
looking one". Evidence of adverse impact on the defender arising from her eviction was
said to be meagre. As for the unlawful discrimination defence, it was submitted that the
21
evidence did not reliably establish that all the defender's anti-social behaviour and criminal
convictions arose as a consequence of her disability. The defender was said to be a proven
liar. Drug and alcohol consumption played into the mix. Dr Rashid's conclusions were
general, speculative and unreliable. Esto all the defender's conduct arose as a consequence
of her disability, eviction was lawful because it was a proportionate means of achieving a
legitimate aim. Multiple legitimate aims were founded upon: enforcement of property
rights; management of housing stock; enforcement of tenancy conditions; protection of
residents and others in the locality by removal of a source of anti-social behaviour and
criminal conduct; reassurance of the local community by being seen to take effective action.
No lesser measure was capable of achieving these aims. The achievement of these aims
outweighed any (speculative) consequence to the defender.
[21]
For the defender, I was invited to conclude that eviction would violate the defender's
Article 8, ECHR right. Eviction would be disproportionate because the anti-social behaviour
complained of arose from her psychiatric disability; medical intervention had been
successful in eliminating that behaviour; so no legitimate aim was achieved by insisting
upon eviction. The only real "aim" of the action was to reassure staff and residents. As for
the Equality Act 2010 defence, I was invited to conclude that eviction would constitute
unfavourable treatment and unlawful discrimination because, again, the proposed eviction
arose in consequence of the defender's disability; the offending behaviour had already been
eliminated by successful medical intervention; and a less intrusive alternative to eviction
was available, namely the defender's continuing psychiatric treatment. Under both the
normal and stream-lined processes, decree should not be granted, by virtue of section 16(3A)
of the 2001 Act. For the same reasons, eviction would not be "reasonable" under
section 16(2)(a) of the 2001 Act.
22
Reasons for decision
The Article 8, ECHR defence: A brief history
[22]
For many years, UK domestic law (notably in England and Wales, where most of the
cases have arisen) has struggled with Article 8, ECHR in the context of public sector
repossession proceedings. In part, the difficulty reflects a clash of jurisprudential cultures.
In ECHR jurisprudence, a person may have a "home" without having any proprietary right,
and may indeed be entitled to respect for his home even if his occupation is unlawful. The
European concept is thus more philosophical than proprietorial. By its nature, it is difficult
to reconcile with UK domestic property law, which places importance on certainty and clear
legal norms, such as freedom of contract, and the traditional primacy afforded to the
vindication of a proprietor's right of ownership.
[23]
But there is also a practical problem. Repossession actions are voluminous and they
are dealt with by a summary procedure. This has given rise to a concern about the
potentially disruptive practical implications of allowing a wide-ranging factual inquiry into
Article 8 issues, if prolonged and expensive proceedings were to ensue in every case (Reed
& Murdoch, Human Rights Law in Scotland (4
th
ed.), para 6.23).
[24]
This philosophical and practical tension bubbled to the surface in a stand-off
between the House of Lords and the European Court of Human Rights ("ECtHR") in the
first decade of the new millennium. In three successive cases, the House of Lords held that a
public sector landlord's contractual and proprietary right to recover possession could not be
defeated by a defence based on Article 8, ECHR; and that the availability of the separate
remedy of judicial review (of a public authority's decision to seek eviction) was enough to
render summary repossession proceedings Convention-complaint (Harrow London Borough
23
[25]
At about the same time, Strasbourg jurisprudence was developing in a different
direction. In a countervailing quartet of decisions, the ECtHR concluded that a more
stringent scrutiny was required. It held that that, any person at risk of losing his home at the
hands of the State should in principle be able to have the proportionality of that measure
determined by an independent tribunal by reference to Article 8, ECHR, notwithstanding
that, under domestic law, his right of occupation has come to an end (Connors v United
availability of judicial review did not go far enough to make repossession proceedings
Convention-compliant.
[26]
In Manchester City Council v Pinnock [2011] 2 AC 104, the Supreme Court finally
resolved the decade-long struggle. It conceded both the procedural and the substantive
elements of the Article 8, ECHR right, but what is striking is that the concession relates, for
the most part, to the procedural point of principle. In other words, the Supreme Court
accepted that any person at risk of losing his home at the instance of a public sector landlord
must be entitled to challenge the proportionality of that decision within the court
repossession process itself, even where he had no right under domestic law to occupy the
property, and even where the legislation purportedly left the court no room for discretion.
Absent the opportunity for a judicial assessment of proportionality, the court repossession
process would not be Convention-complaint. However, as a legal tool to contest the
substantive merits of a proposed repossession, the principle of proportionality, though now
24
available procedurally, remained tightly constrained, if not blunted, in its application by the
Pinnock decision.
[27]
And so it has proved to be. Subsequent case law suggests that most occupiers in
repossession proceedings may not in practice have reaped much substantive benefit from
the application of the Convention right. A Pinnock proportionality defence (under Article 8,
ECHR) is difficult to establish.
The conventional approach to proportionality
[28]
To understand Pinnock proportionality, it is necessary to consider how
proportionality is normally applied in ECHR jurisprudence. Firstly, in normal
circumstances (i.e. in cases not involving public sector evictions), the onus of establishing
that an interference with a Convention right is justified (and proportionate) rests on the State
that is, upon the public authority that seeks to interfere with the right. Secondly, "a more
clearly structured approach" is normally adopted to the assessment of proportionality (in
non-repossession cases) (Bank Mellatt v Her Majesty's Treasury (No.2) [2014] AC 700, [71]-[76]
per Lord Reed). This more analytical approach operates by "breaking down the assessment
of proportionality into distinct elements". In summary, when assessing proportionality the
Court must determine (1) whether the objective of the impugned measure is sufficiently
important to justify limiting the Convention right, (2) whether the measure itself is rationally
connected to that objective, (3) whether a less intrusive measure could have been used
without unacceptably compromising the achievement of the objective, and (4) whether,
balancing the severity of the measure's effects on the rights of the persons to whom it
applies against the importance of the objective, to the extent that the measure will contribute
to its achievement, the former outweighs the latter. These four requirements are logically
25
separate, but in practice they inevitably overlap (Bank of Mellatt, supra, [20]). Thirdly, by its
nature, the test of proportionality is more searching than a conventional Wednesbury review.
A "close and penetrating examination of the factual justification for the restriction is
needed" if the protection afforded by the Convention right is to remain practical and
effective (R v Shayler [2003] 1 AC 247, [61]). Proportionality is directed at determining not
merely whether a decision-making process was flawed (that is, whether a decision-maker
misdirected itself, or acted irrationally, or committed some procedural impropriety), but
whether a fair balance has been struck overall between the demands of the general interest
of the community and the requirement for protection of the individual's fundamental right.
So, an assessment of proportionality necessarily requires the court to reach a "value
judgment" (Bank Mellatt, supra, [71]). But it is always a question of degree. The intensity of
the review will vary depending upon the nature of the Convention right at stake, and the
context in which the interference occurs. So, for example, some Convention rights (such as
those conferred by Articles 8 to 11, ECHR) are subject to widely expressed qualifications,
whereas others permit of more stringent derogations only. Also, the stronger the "pressing
social need" for an interference with a Convention right, the less difficult it may be to justify
that interference. Lastly, the limits on judicial competence need to be borne in mind. In
certain circumstances and to a certain extent, a domestic legislature or decision-maker may
be better placed than the court to determine how particular competing community and
individual interests should be balanced (Axa General Insurance Ltd v Lord Advocate 2012 SC
122, [131]).
26
What is Pinnock proportionality?
[29]
In Pinnock, the Supreme Court turned this conventional approach to proportionality
on its head.
[30]
Critically, the onus was reversed in public sector repossession cases. The onus is
now on the person against whom the possession order is sought to challenge the
proportionality of the measure; the burden of proof lies on him to show that it is
disproportionate; any proportionality defence should initially be considered summarily by
the first-instance court and rejected unless it crosses the high threshold of being "seriously
arguable"; if an Article 8 defence does proceed to an evidential hearing, the legitimate "twin
aims" of public sector landlords to vindicate their property rights and to administer their
finite housing stocks should be assumed (as a "given"); those legitimate twin aims are to be
treated as "of real weight" in the assessment of proportionality; in the overwhelming
majority of cases, there will be no need for the public sector landlord to explain or justify its
reasons for seeking possession; and, as a broad statement, the absence of proportionality is
likely to be exceptional (Pinnock, [52] to [61]). In effect, Pinnock creates a series of weighted
rebuttable presumptions in favour of the proportionality of repossession by public sector
landlords.
[31]
Pinnock was followed by the Supreme Court in Hounslow LBC v Powell
[2011] 2 AC 186. Both Pinnock and Powell were then applied in a volley of heavy-hitting Court of Appeal
decisions, all emphasising the difficulty of surpassing the "seriously arguable" threshold in
(English) public sector repossession procedure. The approach of the Supreme Court in
Pinnock and Powell was adopted by the Inner House of the Court of Session in South
27
[32]
The basic principles were neatly collated by Etherton LJ in Thurrock Borough Council v
(1)
First, it is a defence to a claim by a public sector landlord for possession of a
defender's home that repossession is not necessary in a democratic society, in terms
of Article 8(2), ECHR. An order for possession in such a case would breach the
defender's Article 8 Convention right, and therefore be unlawful (Human Rights Act
1998, section 6(1)).
(2)
Second, the proper test is whether the proposed eviction is a proportionate
means of achieving a legitimate aim (Pinnock, [52]). The Supreme Court has said that
it would prefer to express the position in that way rather than use the yardstick of
confining an arguable Article 8 defence to "very exceptional cases".
(3)
Third, nevertheless, the threshold for establishing an arguable case that a
public sector landlord is acting disproportionately (and so in breach of Article 8,
ECHR), where repossession would otherwise be lawful, is a high one and will be met
in only a small proportion of cases (Powell, [35]). The circumstances will have to be
exceptional to substantiate such a defence (Powell, [92]). In Birmingham City Council v
circumstances might even have to be "extraordinarily exceptional", but it is now
acknowledged that references to degrees of exceptionality may unnecessarily
complicate matters.
(4)
Fourth, the reasons why the threshold is so high lie in the public policy and
public benefit inherent in the functions of a public sector housing authority in
dealing with its housing stock, a precious and limited public resource. Such
landlords hold their housing stock for the benefit of the whole community and they
28
are best equipped (certainly better equipped than the courts) to make management
decisions about the way in which such stock should be administered (Powell, [35]).
Where a person has no right in domestic law to remain in occupation of his home,
the proportionality of evicting the occupier will be supported not merely by the fact
that it would serve to vindicate the landlord's ownership rights but also, at least
normally, by the fact that it would enable the landlord to comply with its duties in
relation to the distribution and management of its housing stock (including, for
example, the fair allocation of its housing, the redevelopment of the site, the
refurbishing of sub-standard accommodation, the need to move people who are in
accommodation that now exceeds their needs, and the need to move vulnerable
people into sheltered or warden-assisted housing). In many cases, other cogent
reasons, such as the need to remove a source of nuisance to neighbours, may support
the proportionality of dispossessing the occupiers. Unencumbered property rights
(including those enjoyed by a public sector body) are "of real weight" when it comes
to proportionality. So, too, is the right indeed the obligation of public sector
landlords to decide who should occupy their residential property. Therefore, in
virtually every case where a residential occupier has no contractual or statutory
protection, and the public sector landlord is entitled to possession as a matter of
domestic law, there will be a very strong case for saying that making an order for
possession would be proportionate.
(5)
Fifth, where, aside from Article 8, ECHR, a public sector landlord has a legal
right to possession, the landlord can also properly be assumed to be acting in
accordance with its duties (in the absence of cogent evidence to the contrary). This
will be a strong factor in support of the proportionality of making an order for
29
possession without the need for any further explanation or justification by the
landlord (Pinnock, [53]; Powell, [37]). It will, of course, always be open to the landlord
to adduce evidence of other particularly strong or unusual reasons for wanting
possession.
(6)
Sixth, an Article 8 defence on the ground of lack of proportionality must be
pleaded and sufficiently particularised to show that it reaches the high threshold of
being seriously arguably (Powell, [33] & [34]).
(7)
Seventh, unless there is some good reason not to do so, the court must at the
earliest opportunity summarily consider whether the Article 8 defence, as pled,
reaches that threshold (Pinnock, [61]; Powell, [33], [34] & [92]). If the averred defence
does not reach that threshold, it should be dismissed. The resources of the court and
of the parties should not be further expended on it.
(8)
Eighth, even where an Article 8 defence is established, in a case where the
occupier would otherwise have no legal right to remain in the property (a fortiori
where the defender has never been a tenant or licensee), it is difficult to imagine
circumstances in which the defence could ever operate to give the occupier an
unlimited and unconditional right to remain (which may be the unintended
consequence of a simple refusal of possession without any further qualification)
(Pinnock, [52]). By so adjudicating, the court would have assumed the public sector
landlord's function of allocating its housing stock, preferring the right of an
unentitled occupier to remain, without any tenancy or contract, over all the other
people entitled to rely on the landlord's resources and duties, and without the
benefit of any knowledge of the circumstances of those competing potential
occupiers.
30
[33]
However, strikingly, no clear guidance was given in Pinnock or Powell as to the
circumstances in which an Article 8, ECHR defence might actually succeed.
[34]
Tantalisingly, Lord Neuberger in Pinnock (para [64]) observed merely that
proportionality is more likely to be a relevant issue "in respect of occupants who are
vulnerable as a result of mental illness, physical or learning disability, poor health or
frailty", and that the public sector landlords "may have to explain why they are not securing
alternative accommodation in such cases". Beyond that, the Supreme Court stated merely
that the assessment of proportionality in individual cases was "best left to the good sense
and experience of judges sitting in the [first instance] court" (para [57]). That may provide
small comfort for the first-instance judge.
[35]
Certainly, reported instances of successful proportionality defences are thin on the
ground. I am aware of only one English decision in which the Article 8, ECHR defence was
and of only two such Scottish cases (East Kilbride Housing Association v Ryan Carroll,
Hamilton Sheriff Court, Sheriff J. Speir, 31 August 2022, unreported; River Clyde Homes
Limited v Woods 2015 WL 5949405, Greenock Sheriff Court, Sheriff C.G. McKay, 1 September
2015).
[36]
In the overwhelming majority of reported cases, the proportionality defence has not
Group v Thomas [2012] EWHC 266; Thurrock Borough Council, supra; Fa reham Borough Council v
Sheriff Court, Sheriff J. Speir, 10 March 2022); Wheatley Homes Glasgow Ltd v Yasmin Shariff,
31
Sheriff Paul Reid, 7 August 2023, unreported). To illustrate the point, even a relatively well-
evidenced averment that the defendant, if evicted, would likely kill himself did not make
eviction disproportionate (R (on the application of Plant) v Somerset County Council [2016]
EWHC 1245).
[37]
However, as a final observation, it is worth noting that Pinnock, Powell and most of
the leading cases are in fact dealing with unlawful occupiers, that is, persons who do not
have (and, indeed, many who have never had) any right whatsoever to occupy the property,
still less any protected security of tenure. Pinnock involved a "demoted tenancy", Powell an
"introductory tenancy" (its statutory predecessor), both being akin to mere "probationary"
or short assured tenancies in Scots law (McKenna); Corby too involved an introductory
tenant; West Kent and Riverside Group were concerned with "starter" tenants; Holmes likewise
with a non-secure tenant; the occupier in Birmingham was a trespasser; in Thurrock, the
defendant had never held a tenancy or licence of the property, but was merely a grandson of
the deceased tenant claiming a right of succession. Therefore, in all these leading cases, the
"twin aims" of vindicating the landlords' proprietary rights, and of upholding their
managerial powers over a limited housing stock, were compelling and were afforded due
primacy. That is why, in Pinnock, the conventional "structured" approach to the assessment
of proportionality was rejected. As Lord Hope observed, to apply the conventional
structured proportionality test to such unlawful occupiers "would largely collapse the
distinction between secured and non-secure tenancies." Likewise, Lord Neuberger in Powell
(para [74]) observed that Parliament had "deliberately created classes of tenants who do not
have security of tenure"; and, while some of those tenants had been granted a degree of
substantive and procedural protection, Parliament had sought to eliminate, so far as
possible, questions of proportionality in such cases for sound policy reasons.
32
[38]
Logically, therefore, the balancing exercise may be subtly different with an occupier
who does have security of tenure (as in this case). To be clear, Pinnock and Powell are of
universal application across all public sector repossession cases, whether the occupation is
lawful or unlawful, secure or non-secure. But the distinction between an occupier who
otherwise has security of tenure, and one who does not, remains an important one in the
practical application of Pinnock proportionality in individual cases, though not necessarily
determinative.
Is the defender's eviction proportionate under Article 8, ECHR?
[39]
Against that legal background, with the onus firmly on the defender, I have sought
to assess the merits of the defender's Article 8, ECHR defence.
[40]
The first question is whether the objective sought to be achieved by the action is
sufficiently important to justify interfering with the defender's Article 8 right. I accept that a
number of legitimate objectives are sought to be achieved here. The "twin aims" of
vindicating the pursuer's proprietorial right and enforcing its powers of management over
its own housing stock can safely be assumed. However, what emerges strongly from the
evidence is that these aims are, in the particular circumstances of this case, ancillary
objectives. This is not a case where the pursuer seeks to recover possession from an unlawful
occupier who, aside from Article 8, either never had a right to possess or whose right has
terminated. On the evidence, the primary and predominant objective of this repossession
action is the removal of a source of nuisance to neighbours and staff. That objective is both
intrinsic and manifest in the two grounds for recovery of possession founded upon by the
pursuer (2001 Act, schedule 2, paragraphs 1 & 7). Of course, it is a perfectly legitimate
objective in itself (being another "cogent" reason recognised in Pinnock and Powell), but it is
33
important to identify it as the predominant aim in this case in order that the proportionality
assessment can properly be carried out. It makes no sense to ask whether a given
interference with an Article 8 right is proportionate in the abstract. The relevant legitimate
objective must first be identified in order to determine what factual issues are then relevant
to the proportionality assessment.
[41]
The next question is whether the proposed eviction is a proportionate means of
achieving these legitimate aims, with the onus resting squarely on the defender. In my
judgment, on the evidence the defender has discharged that onus and established that it
would be disproportionate to order possession, in terms of Article 8, ECHR, and therefore
unlawful (Human Rights Act 1998, section 6). I reach that conclusion for the following
reasons.
[42]
First, on the evidence, the defender is genuinely "vulnerable as a result of mental
illness". She falls within that potentially exceptional category identified by Lord Neuberger
in Pinnock (para [53]). She suffers from a severe and enduring mental illness formally
categorised as Unspecified Psychotic Disorder; it is a significant mental impairment; it is a
life-long condition; it has resulted in at least two recorded admissions to a psychiatric
hospital for treatment (once in 2008, and again in 2021); it significantly affects her ability to
carry out day-to-day activities; when medicated she is exhausted and stays in her home;
when not medicated, she loses her ability to distinguish delusion from reality.
[43]
Second, I am satisfied on the evidence that the defender's anti-social and criminal
conduct was directly attributable to a significant deterioration in her diagnosed, life-long
mental disability, coinciding with a temporary and demarcated period of non-compliance
with her prescribed medication and non-engagement with psychiatric supports, between
around July 2017 and late 2021. Critically, she is not merely vulnerable by reason of some
34
generalised mental ill-health. (Sadly, of itself, that would be unexceptional.) Rather, the
defender suffers from a diagnosed, significant mental disability which, following a relapse,
has had a direct causative effect on the anti-social and criminal conduct now complained of.
In contrast, in the preceding 14 year period (from 28 November 2003 until around July 2017)
prior to her psychotic relapse, the defender occupied the property, as a secure tenant,
without breach, incident, or complaint regarding her conduct. In further contrast, in the
most proximate period of over three years (from July 2021 to October 2024), the defender has
also not engaged in any criminal or anti-social behaviour. This most recent prolonged
period of good behaviour itself coincides with, and is referable to, a documented significant
recovery in her mental health (described by Dr Rashid, her consultant psychiatrist, as
"remarkable"), instigated and sustained by a change in (and regular monitoring of) her
prescribed anti-psychotic medication, a resumption in compliance with her prescription, and
a re-engagement with monthly psychiatric supports. Viewed in aggregate, the defender's
spree of anti-social behaviour can fairly be characterised as unprecedented, out-of-character,
and attributable to a relapse in her mental health.
[44]
Third, the defender's anticipated future level of compliance and engagement with
her prescribed medication and ongoing psychiatric treatment is reliably assessed as being
good; and the risk of a recurrence of the criminal offending complained of is reliably
assessed as being low. These risk assessments were spoken to by, respectively, Dr Rashid,
the defender's consultant psychiatrist, and Phil Wheat, the defender's supervising officer.
Both were impressive witnesses, with relevant qualifications, expertise, and direct personal
experience of the defender. The significance of the foregoing is that it further undermines
the potency of the primary objective sought to be achieved by the pursuer (namely, the
35
removal of a source of nuisance to prevent a recurrence of offending behaviour, and to
protect staff and neighbours).
[45]
In summary, it can reasonably be inferred that the defender's anti-social and criminal
behaviour has already ceased (by virtue of suitable medical intervention to address her
mental health relapse); there has been no repetition of that behaviour for over three years
now; the defender's anticipated level of compliance and engagement with her prescribed
medication and ongoing psychiatric treatment is reliably assessed as good; the risk of a
recurrence in her criminal offending is reliably assessed as low; in a real and practical sense,
the nuisance presented by the defender's conduct (itself attributable to a relapse in her
fragile mental health) can fairly be said to have ended. In those circumstances, repossession
is no longer a convincing or cogent means to achieve the pursuer's primary objective -
because the objective has already been achieved by other means. Applying step (2) of Lord
Reed's structured approach, the impugned measure (eviction) is not "rationally connected"
to the predominant objective (or, at least, not rationally connected with any convincing
strength or sufficiency).
[46]
That said, I accept that in cases involving criminal or anti-social behaviour the
rationale for removing a source of nuisance in a neighbourhood need not be confined merely
to preventing a recurrence of the offending conduct. Another legitimate justification may be
to deter others from engaging in similar behaviour, and to reassure the rest that an effective
sanction can be imposed for such conduct. This deterrent or declaratory rationale for
removing the source of a nuisance is best illustrated perhaps in housing policies aimed at
evicting those concerned in the supply of drugs. Even if a genuinely contrite or relatively
low-level accomplice in drug-dealing within a rented property was thought unlikely to
reoffend, the deterrent and reassuring declaratory effect of evicting such offenders is likely
36
to remain compelling as a means of discouraging and extirpating that social blight from the
midst of a neighbourhood. But what conceivable message of deterrence or reassurance
would be sent to others by the eviction of this mentally ill defender? If the deterrent message
to neighbours and staff is no more than that a vulnerable tenant who has the misfortune, for
a temporary period, to fall mentally ill will be evicted, then that justification is
unmeritorious and should carry little weight in an assessment of proportionality.
[47]
Fourth, I am satisfied on the evidence that, if the defender is evicted from the
property, the defender's "remarkable" and "significant" mental health recovery (per
Dr Rashid) will be disrupted. Dr Rashid observed that her recovery was dependent on
ensuring that there were "not many social stressors" in her life. She had lived in her home
for "an extremely long period of time"; she was "emotionally invested" in it; she had a
familiarity with the area; "uprooting" her from her home could create "a potential
possibility of a relapse". Dr Rashid opined that eviction could also "increase the risk of non-
engagement from mental health services", particularly where, as here, she has a history of
non-engagement. Besides, according to Dr Rashid, if she were relocated, she may be
allocated a different medical team. This was not in her best interests as she had finally
developed a good relationship with her current medical team and they were said to be best
placed to identify any symptoms of relapse or non-compliance sooner than a new team that
was less familiar with her. The significance of this evidence, which I accepted, is that the
defender faces the risk of very real harm to her own mental health if the order is granted.
While such an impact is not determinative, its potency is increased when balanced against
the pursuer's already weakened and undermined predominant objective.
[48]
Fifth, on 25 April 2019 an interim anti-social behaviour order ("ASBO") was obtained
against the defender in summary application proceedings at the instance of the pursuer in
37
terms of the Anti-social Behaviour etc., (Scotland) Act 2004. The interim order is not
currently limited in duration. It remains in force. In its terms, it prohibits the defender the
defender inter alia from engaging in the type of anti-social and criminal conduct which forms
the basis of the grounds for recovery of possession in this case. Since July 2021, no material
breach of the interim order has been established. The significance of this factor is that the
existence of the interim ASBO can be seen as a "less intrusive means" by which to achieve
the pursuer's legitimate objective (of eliminating a source of nuisance). The mere existence
of such an alternative is by no means determinative (R (Wilson) v Wychavon District Council),
but it is at least a barometric tool by which the proportionality of the proposed eviction can
be cross-checked (Bank of Mellatt, [75]). In circumstances where no further criminal
offending or anti-social conduct has occurred for over three years (since July 2021), a fair
inference may be drawn that, in conjunction with the defender's sustained medical recovery,
the interim ASBO is at least playing a not insignificant part in achieving the desired aim.
This inference is borne out by the rather pathetic incidents, in January 2024, when she
approached the pursuer's concierge station on two occasions with an innocuous enquiry
about obtaining a new common close key fob; she was immediately told to leave by the
pursuer's staff, by virtue of the interim ASBO; and she duly complied. The first incident
lasted for about a minute; the second for about 20 seconds. If any conclusion is to be drawn
from these incidents, it is that the interim ASBO works, and is being honoured by her. If her
physical approach to the concierge station were itself to constitute a breach of the order
(which has not yet been established), it must be a highly technical breach, and of no
materiality.
[49]
Taking all of the foregoing into account, I conclude that the defender has discharged
the onus upon her of proving that the grant of an order to recover possession of the Subjects
38
would be disproportionate. The eviction of this particular defender, in these particular
circumstances, would not strike a fair balance between the interests of the wider community
and the defender's Article 8, ECHR right.
The Equality Act Defence
[50]
I turn to the Equality Act defence. This calls for a different analysis. Section 15(1) of
the 2010 Act states that a person (A) discriminates against a disabled person (B) if:
"(a)
A treats B unfavourably because of something arising in consequence of
B's disability, and
(b)
A cannot show that the treatment is a proportionate means of achieving
a legitimate aim."
[51]
Counsel were agreed that the pursuit of these repossession proceedings constitutes
unfavourable treatment and that the reason for that unfavourable treatment (i.e. the
"something" referred to in section 15) is the defender's anti-social and criminal conduct.
The preliminary issue in dispute is whether this conduct was "something arising in
consequence of [her] disability" (2010 Act, section 15(1)(a)).
Is there a causal connection with the disability?
[52]
Under section 15 of the 2010 Act, the initial onus lies on the tenant (the defender) to
demonstrate a causal connection between her offending conduct and her disability. If the
tenant discharges that initial onus, the onus then shifts to the landlord (the pursuer) to show
that the unfavourable treatment (i.e. the proposed eviction) is a proportionate means of
achieving a legitimate aim. Crucially, in this new statutory context, "proportionality" bears a
much more rigorous meaning than Pinnock proportionality under Article 8, ECHR.
39
[53]
On the evidence, I am satisfied that the defender has discharged the initial onus of
demonstrating that the pursuer is treating her unfavourably (by seeking to evict her)
because of "something" (a course of anti-social and criminal conduct between 2017 and
2021) "arising in consequence of [her] disability" (2010 Act, section 15(1)(a)). In my
judgment, the defender's spate of anti-social behaviour and criminal offending was a
consequence of florid psychotic episodes following a relapse in her mental health. I reach
that conclusion for the following reasons. First, it is a matter of admission that during the
relevant period the defender suffered from "unspecified psychotic illness and delusional
beliefs in respect of her neighbours" (paragraph 9, first joint minute of admissions). Her
medical records also disclose that at times her mental illness has been thought to be
paranoid schizophrenia (defender's fifth inventory, item 14: Dr Rashid's Report dated
8 January 2024, page 5). Second, Dr Rashid's expert opinion was that there was a "high
probability" that the defender's anti-social behaviour and criminal offending was a
consequence of a relapse in her mental illness. Third, that expert opinion is itself entirely
logical, if not irresistible, having regard to the wider factual circumstances. Despite having
endured a long history of mental ill-health, the defender had lived at the property for nearly
14 years (since November 2003) without recorded breach, incident or complaint. Out of the
blue, in July 2017, she is then documented as having stopped taking her prescribed anti-
psychotic medication and disengaged with psychiatric supports (defender's seventh
inventory, item 6/16/17 of process: Townhead Health Centre medical records, entry dated 23
June 2017; defender's fifth inventory, item 14: Dr Rashid's Report dated 8 January 2024,
pages 3 & 5). Shortly thereafter, in August 2017, the defender embarked upon the
unprecedented spree of belligerent and abusive behaviour on which this action is founded.
Dr Rashid attached significance to the coincidence in timing. In his oral testimony, as a
40
generality, he said, a patient who fails to take prescribed anti-psychotic medication has "a
high potential to develop psychosis", marked by paranoid delusion and auditory
hallucination; and, more specifically, this defender, when not medicated, loses her ability to
distinguish delusion from reality. Fourth, according to Dr Rashid, the nature of the
behaviour described in the pursuer's incident report forms was consistent with the paranoia
of a person, such as the defender, suffering a florid psychotic episode. The reported
incidents tended to disclose paranoid, delusional beliefs of a persecutory nature,
accompanied by auditory hallucination. Specific reference was also made to the incident
report form forming item 16Q in the pursuer's eighth inventory of productions, in which the
defender is reported to have claimed that the pursuer's staff were affiliated to the devil and
extremist terror groups. Dr Rashid opined that a report of this nature, if he had been made
aware of it at the time, would have been treated by him as "a red flag", a "psychiatric
emergency", and would have prompted him to instruct a hospital admission of the defender
for urgent assessment of her mental health. From an expert witness otherwise prone to
under-statement, with no evident propensity for drama, this was a striking disclosure.
Fourth, this conclusion (as to the psychiatric cause of the defender's misconduct) is fortified
by the facts that, when she re-engaged with mental health services in October 2021, she was
noted by Dr Stuart Semple, Specialist Registrar, Forensic Mental Health Services, as
experiencing active symptoms of psychosis (defender's fifth inventory, item 14: Dr Rashid's
Report dated 8 January 2024, page 3); and that, shortly thereafter, on 8 December 2021, she
was admitted to Stobhill Hospital for psychiatric intervention with a documented "relapse
in psychotic symptoms" (defender's seventh inventory, item 6/16/9 of process: Townhead
Health Centre medical records, entry dated 17 December 2021). Fifth, significantly, it was
during this period of hospital admission in December 2021 that the defender's prescribed
41
anti-psychotic medication was finally adjusted; and, from that point onwards, there has been
no recorded relapse, and no recorded incident of anti-social or criminal conduct.
Dr Rashid's opinion was that it was "highly probable" her conduct arose as a consequence
of florid psychotic episodes symptomatic of a significant deterioration in her life-long
mental disability. In my judgment, that inference is irresistible.
[54]
Also relevant in this context is section 136 of the Equality Act 2010 (headed "burden
of proof"). It states:
"(1)
This section applies to any proceedings relating to a contravention of
this Act.
(2)
If there are facts from which the court could decide, in the absence of
any other explanation, that a person (A) contravened the provision concerned,
the court must hold that the contravention occurred.
(3)
But subsection (2) does not apply if A shows that A did not contravene
the provision."
Here, there are facts from which I "could decide" that the proposed eviction is "because of
something arising in consequence of [the defender's] disability". So it is for the pursuer, as
the alleged discriminator, to prove that it was not. It has failed to do so.
[55]
Therefore, the defender having discharged the initial onus upon her, the onus shifts
to the pursuer to show that its unfavourable treatment is "a proportionate means of
achieving a legitimate aim" (2010 Act, section 15(1)(b)).
What is Akerman-Livingstone proportionality?
[56]
According to the Supreme Court in Akerman-Livingstone v Aster Communities Ltd
(formerly Flourish Homes Ltd) [2015] AC 1399), the substantive right to equal treatment
protected by section 15 (and section 35) of the Equality Act 2010 is different from, and
stronger than, the substantive right which is protected by Article 8, ECHR.
42
[57]
All occupiers have a right to respect for their home under Article 8, ECHR. But
Parliament has expressly provided for an extra right for people to be protected against direct
or indirect discrimination in relation to eviction (known as a right to equal treatment).
Parliament has also expressly provided (in sections 13 and 35) for disabled people to have
rights in respect of the accommodation which they occupy which are different from and
extra to the rights of non-disabled people. People with disabilities are "entitled to have due
allowance made for the consequences of their disability" (Lewisham London Borough Council v
[58]
This stronger right to equal treatment operates as follows. In the first place, once the
possibility of disability discrimination is made out, the onus of proof is firmly on the
landlord to show that an order for possession is a proportionate means of achieving a
legitimate aim (section 15(1)(b)). This onus is fortified by the statutory evidential inferences
and burdens created by section 136 of the 2010 Act. In the second place, proportionality
under the Equality Act (as interpreted by the Supreme Court in Akerman-Livingstone) has a
much more rigorous meaning than Pinnock proportionality under Article 8, ECHR.
Akerman-Livingstone proportionality involves the conventional "structured approach" (Bank
of Mellatt, supra), with the onus squarely on the landlord. In short, Pinnock's light touch to
proportionality does not apply in the context of disability discrimination.
[59]
Among other things, it cannot be taken for granted that the landlord's "twin aims" of
vindicating proprietorial rights and enforcing powers of management apply at all, or will
almost invariably prevail, or will generally be sufficient to outweigh the effect on a disabled
person. It simply does not follow that because those twin aims will almost always trump
any right to respect for an occupier's home under Article 8, ECHR, they will also trump an
occupier's equality rights (Akerman-Livingstone, [30].)
43
Is the defender's eviction proportionate under the Equality Act?
[60]
Against that different legal background, with the onus this time squarely on the
pursuer (as landlord), I have sought to assess the proportionality of the pursuer's
interference with the defender's statutory equality right.
[61]
The first question is whether the objective sought to be achieved by the proposed
eviction is sufficiently important to justify interfering with the defender's Article 8 right. As
explained above, a number of objectives are sought to be achieved here: the vindication of
the pursuer's proprietorial rights; the enforcement of the pursuer's powers of management
over its housing stock; and the removal of a source of nuisance for the protection and
reassurance of staff and neighbours. On the evidence, incontrovertibly, the latter is the
predominant objective. The other objectives are, at best, ancillary and subordinate. In
principle, I accept that the proven predominant objective may be legitimate, but it potency
remains to be seen.
[62]
The second question is whether the impugned measure (the proposed eviction) is
rationally connected to the proven objective. In principle, I accept that there may a rational
connection of sorts, but the potency and sufficiency of that connection is weak. On the
evidence, the conduct complained of was directly attributable to a significant deterioration
in the defender's mental health, during a demarcated period of non-compliance with her
prescribed medication and non-engagement with psychiatric support; the offending conduct
has ceased (due to medical intervention to address the relapse); there has been no repetition
of that behaviour for over three years now; the defender's anticipated level of compliance
and engagement with her prescribed medication and ongoing psychiatric treatment is
reliably assessed as good; and the risk of a recurrence in her criminal offending is reliably
44
assessed as low. In a real and practical sense, the nuisance presented by the defender's
conduct can genuinely be said to have ceased. In those circumstances, repossession is no
longer a convincing or cogent means to achieve the pursuer's primary objective - because the
objective has already been achieved by other means. Applying Lord Reed's structured
approach, the impugned measure (eviction) is not "rationally connected" to the
predominant objective (or, at least, not rationally connected with any convincing strength or
sufficiency).
[63]
The third question is whether the chosen measure (eviction) is no more than is
necessary to accomplish the objective. This third step in the "structured" approach involves
the court determining whether a "less intrusive measure" is available to achieve the
legitimate aim. The Supreme Court (in Bank of Mellatt) made it clear that first-instance
courts should be careful to avoid merely substituting their own opinion for that of the
decision-maker. A strict application of the "least restrictive means" test would only ever
allow one legislative (or executive) response to an objective that interferes with a right. That
would be the wrong approach. It takes little imagination for a judge to "come up with
something a little less drastic or a little less restrictive in almost any situation", especially if
the judge is "unaware of the relevant practicalities and indifferent to considerations of cost"
(Illinois State Board of Elections v Socialist Workers Party (1979) 440 US 173, 188189; Bank
Mellatt, [75]). Therefore, the existence of a "less intrusive measure" is merely "one of the
tools of analysis in examining the cogency of the reasons put forward in justification of a
measure". It may help in answering the fundamental question whether there is a reasonable
relationship of proportionality between the means employed and the aim sought to be
realised, depending perhaps upon the degree of scrutiny required in a particular case, but it
is "not necessarily determinative" (R (Wilson) v Wychavon District Council [2007]
45
QB 801, [62]). In this case, in my judgment, the pursuer is unable to show that no less drastic
or intrusive measures are available to solve the problem. On the contrary, on the evidence,
the problem (the removal of a source of nuisance) has, for all practical purposes, already
been solved by suitable medical intervention. In tandem with the evidenced successful
medical intervention, a further less drastic means is already available to the pursuer to
contribute to the accomplishment of the objective - namely, an ASBO. The interim ASBO
obtained by the pursuer on 25 April 2019 remains in force. It prohibits the defender inter alia
from engaging in the type of anti-social and criminal conduct which forms the basis of the
grounds for recovery of possession in this case. Over a prolonged period since around July
2021, no material breach of the interim order has been established. I acknowledge that the
mere existence of such an alternative measure is by no means determinative; it is merely a
tool by which the proportionality of the proposed eviction can be tested; but its existence
and evidenced operation in the present case tends to support the inference that there is, in
truth, no pressing need for the more drastic measure of eviction.
[64]
The fourth question is whether the impact of infringing the defender's equality right
is disproportionate to the likely benefit of the impugned measure. Put another way, the
landlord must show that the effect of the impugned measure on the occupier is outweighed
by the advantage(s) sought to be achieved. Again, on the evidence, the pursuer fails to
discharge this onus. In the first place, the potency of the pursuer's objective is weakened by
the fact that the nuisance sought to be removed has, in practical terms, already been
eliminated. In the second place, I am satisfied on the evidence that, if the defender is evicted
from the property, she will be at material risk of disengaging from the settled psychiatric
supports and carefully calibrated medications currently in place for her, and of suffering a
significant psychotic relapse. Her "remarkable" mental health recovery (per Dr Rashid) will
46
be at material risk of being disrupted. That personal impact is not determinative, but its
potency is increased when balanced against the pursuer's already diminished predominant
objective.
[65]
For these reasons, the pursuer cannot show that the discriminatory treatment is a
proportionate means of achieving a legitimate aim, in terms of the 2010 Act, section 15(1)(b).
Therefore, the defender's eviction would constitute unlawful disability discrimination,
contrary to section 15 of the 2010 Act.
[66]
For completeness, I observe that, since eviction would be "unlawful" (under the
Human Rights Act 1998 et separatim the Equality Act 2010), it must follow that it would not
be "reasonable" to grant an order for possession of the Subjects, for the purposes of
section 16(1)(a) of the Housing (Scotland) Act 2001.
[67]
Accordingly, I refuse to grant the order as craved. I grant decree of absolvitor in
favour of the defender. The issue of expenses is reserved meantime.
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