East Kilbride Housing Association Ltd against T (Sheriff Court Civil) [2025] SCHAM 12 (31 August 2022)

SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY

AT HAMILTON

[2025] SC HAM 12

HAM-SD12-22

JUDGMENT OF SHERIFF J SPEIR

in the cause

EAST KILBRIDE HOUSING ASSOCIATION LIMITED

Pursuers

against

Defender

Pursuers: Kelly & Co, Solicitors, Glasgow

Defender: E Young; Hamilton CAB

HAMILTON, 31 August 2022

The Sheriff, after proof, refuses the first and second craves for the pursuers; finds no

expenses due to or by either party; and quoad ultra dismisses the action.

Introduction

[1]

This is a summary cause action for recovery of possession in terms of section 14 of

the Housing (Scotland) Act 2001 ("the 2001 Act"). The pursuers are East Kilbride Housing

Association Limited. The defender is T. The parties are respectively the landlord and tenant

of subjects in East Kilbride ("the subjects").

[2]

The pursuers seek recovery of possession in terms of section 16 of the 2001 Act which

provides inter alia that:

"(2) ... in proceedings under section 14 the court must make an order for recovery

of possession if it appears to the court--

...

(aa) ... that--

(i)

the landlord has a ground for recovery of possession set out in

paragraph 2 of that schedule and so specified, and

(ii)

the landlord served the notice under section 14(2) before the day

which is 12 months after--

(A) the day on which the person was convicted of the offence

forming the ground for recovery of possession...

...

(3A) subsection (2) does not affect any other rights that the tenant may have by

virtue of any other enactment or rule of law...

...

(5)

An order under subsection (2) must appoint a date for recovery of possession

and has the effect of--

(a)

terminating the tenancy, and

(b)

giving the landlord the right to recover possession of the house,"

[3]

Paragraph 2 of schedule 2 to the 2001 Act provides that:

"The tenant ... has been convicted of--

(a)

using the house or allowing it to be used for immoral or illegal purposes,

(b)

an offence punishable by imprisonment committed in, or in the locality

of, the house."

[4]

The ground for recovery of possession under section 16(2)(aa) is known as the

"streamlined procedure". Where it applies there is no requirement on the housing authority

to establish that it is reasonable for the court to make an order in terms of section 16(2)(a).

In terms of section (3A), however, there remains a requirement to consider whether such an

order impinges on any other rights the tenant may have. In particular, whether such an

order constitutes a disproportionate interference with his right to respect for his home,

under articles 8(1) and 8(2) European Convention on Human Rights and Fundamental

Freedoms (ECHR).

[5]

After sundry procedure, the action called before me for proof on 1 July and 5 August

2022, the latter date being a hearing on the evidence. Mr Kelly, solicitor appeared for the

pursuers and Ms Young, CAB representative, appeared for the defender. Mr Andrew

Young, the Chief Executive of the Association gave evidence for the pursuers. The defender

gave evidence as did Noel Talbot, a Drug Treatment and Testing Officer with South

Lanarkshire Council.

[6]

It is unfortunate that parties representatives were not able to collaborate in advance

of the proof in relation to preparation of a joint minute of agreement as it became apparent

that many if not all of the material facts were not in dispute.

Outline chronology

[7]

The parties are the landlord and tenant, respectively, of the subjects under a Scottish

Secure Tenancy Agreement (SSTA), which commenced on 3 June 2002. The subjects are a

flat in a block of four. The defender resides there alone but his parents live close by.

[8]

In December 2021 the defender was convicted at Hamilton Sheriff Court of a

contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 by being concerned in the

supply of controlled drugs on 26 November 2020 within at the subjects. The controlled

drugs in question were 2181.68g of heroin and 20.81g of cocaine. The drugs had a street

value of approximately £41,500. Sentence was deferred until 16 February 2022 for the

purposes of obtaining a Criminal Justice Social Work (CJSW) report and Restriction of

Liberty Order (ROLO) assessment.

[9]

On 6 January 2022, the pursuers' agents, Kelly & Co. solicitors, served a Notice of

Proceedings for Recovery of Possession on the defender under and in terms of section 14 of

the 2001 Act ("section 14 notice"). The notice inter alia informed the defender that the

pursuers might raise proceedings at any time during the period of 6 months beginning on

20 February 2022. The notice specified that ground 2 (paragraph 2 to schedule 2 of the Act)

in respect that the defender had been convicted of:

(a)

Using the house or allowing it to be used for immoral or illegal purposes; or

(b)

An offence punishable by imprisonment committed in ... the house.

The notice also set out the facts and circumstances of said conviction.

[10]

On 16 February 2022, the defender was sentenced to a Drug Treatment and Testing

Order ("DTTO") for a period of 18 months and to a Restriction of Liberty Order ("ROLO")

for 12 months during which he required to be subject to electronic tagging in respect of a

curfew between 7.00am and 7.30pm.

[11]

The summary cause summons for recovery of possession of the subjects was

warranted on 1 March 2022 and service made on the defender on 8 March 2022.

Witness evidence

[12]

Andrew Young is chief executive of the pursuers. He has held that position for

approximately 7½ years. He has worked in social housing for 40 years. He has had no

direct dealings with the defender. He had been presented with the case and had made the

decision to seek an eviction. In coming to that decision he had been provided with

information contained in the "Antisocial Behaviour Disclosure of Information Report"

prepared by Police Scotland dated 24 February 2021. That report contained details of the

police investigation resulting in the discovery of the controlled drugs on 26 November 2020.

Mr Young was also aware of the defender's conviction in respect of that matter as detailed in

the section 14 notice. Mr Young had authorised the service of that notice. In making that

decision he had understood that reasonableness and proportionality did not apply to

ground 2. He had nonetheless considered Scottish Government guidance. He did not

specify what guidance he had considered. He had also considered whether a conversion of

the defender's SSTA to a short tenancy would be an appropriate response. He wanted to

reassure himself that he was following the proper course. In relation to the possibility of

converting the defender's SSTA to a short tenancy he was concerned as to the impact on the

defender's neighbours if in fact the defender did not consent to such a conversion.

Ultimately he considered that he had little choice other than to seek an eviction. Such a

decision was in conformity with the pursuer's robust anti-drug policy. He referred to a file

note dated 22 December 2021. Said file note is in very brief terms. In the box marked

"Summary" it is recorded "Eviction proceedings raised with Kelly & Co." This is a reference

to the pursuer's solicitors. Thereafter in a box marked "Detailed Text" the following is

stated: "All guidance and policies have been fully considered and request the case is

considered for decree for eviction due to antisocial behaviour." The author of this file note

appears to be one of the pursuers' housing officers ("MK"). Mr Young thought it was in

response to that request that he authorised proceedings. He was referred to emails from

Police Scotland to MK. The first dated 26 January 2022 advised that the defender had been

released on 12 January 2022 on standard bail conditions with special conditions to be within

his bail address between the hours of 7.00pm and 7.00am and to abstain from drinking and

taking Valium. The emails also stated "Next court date 16/2/22". A subsequent email dated

22 February stated "Sentence was 18 month DTTO from 16/2/22 and restriction of Liberty

Order for 12 months starting 16/2/22 from 7pm to 7am". Mr Young advised that the terms of

that sentence did not change his decision to seek an order for eviction. The recommendation

in that respect also appears to have come from MK from her file note dated 25 February 2022

in which the "Summary" is "Consideration given re the non-custody of the criminal case".

In the "Detailed Text" section it states:

"(Drug treatment and testing order imposed and restriction of liberty order) but still

consider in all the circumstances that it is appropriate and reasonable given the

seriousness of the offence, effect on neighbours and the neighbourhood, and the

Scottish government guidance for the eviction action still to be raised".

Mr Young did not give any evidence of what steps he took upon receipt of this

recommendation but the clear inference from his evidence was that he had already made his

decision and that was not reviewed despite the terms of the sentence.

[13]

In relation to the effect on defender's neighbours there does not appear to have been

any information considered by Mr Young subsequent to the defender's said conviction.

Mr Young said there had been a "litany" of historic complaints. He gave this as a further

alternative reason for considering that a conversion to a short tenancy was inappropriate, as

this would not alleviate the fears of neighbours, whom he believed would not understand

what a conversion to a short tenancy was. On 10 March 2022, a notice under section 11 of

the Homelessness Etc (Scotland) Act 2003 was issued to the Homelessness Strategy Team of

South Lanarkshire Council. As far as Mr Young was aware, no issue was taken in relation to

the issue of that notice. Mr Kelly then referred Mr Young to a number of productions

comprising hardcopy notes and records relating to complaints, many of which were

anonymous, by neighbours commencing in 2013 alleging drug dealing, drug taking and

other anti-social behaviour by the defender. One complaint also referred to the defender

carrying a knife. It was difficult to make full sense of some of these records due to

redactions. It was clear that Mr Young was unfamiliar with the detail set out not least

because the housing officer at the time had moved on. The anonymous complaints

continued up until September 2021. From the handwriting, a number of the complaints

appeared to come from the same person. Although these matters were put to Mr Young in

evidence, it did not appear that these had formed the basis of his decision to proceed with

the eviction. East Kilbride Housing Association had 562 houses and had a significant

waiting list in the region of 6000 applications.

[14]

In cross-examination, Mr Young accepted that he had made his decision without

actually speaking to the defender. He said that he relied on his staff to give him all the

relevant information, in particular the housing manager and housing officer who

responsible for the accommodation. He understood that the eviction would have serious

consequences for the defender in respect that it would make him homeless and it would

likely be difficult for him to obtain another tenancy. Under reference to the prior

complaints, including the anonymous ones, there had been nine formal complaints

since 2002. In relation to the earlier complaints, a previous notice under section 14 of the

2001 Act had been served on the defender on grounds of antisocial behaviour. Mr Young

was unable to offer any explanation as to why no proceedings were raised following the

service of that notice. In relation to the other complaints made, Mr Young confirmed that

the pursuers had no evidence to substantiate those complaints and that their policy was to

rely on any criminal convictions. Mr Young appeared to suggest that the relevance of those

complaints in the present case was to "add to the weight of evidence" which to some extent

informed his decision. He accepted that the notice that preceded the present action was on a

different ground and was and engaged the streamlined procedure. He recognised that the

defender's human rights were a relevant consideration but considered that the human rights

of the defender's neighbours and other people in the neighbourhood also required to be

taken into account. On being challenged as to whether he had conducted a proper

investigation so that he had all the relevant information in order to make a decision

Mr Young indicated that he would have relied on his housing manager and/or housing

officer to provide all of that information. That would include, where applicable, where a

tenant had a significant medical condition. He was asked whether a conversion to a short

tenancy was still an option but was unsure.

[15]

In re-examination Mr Young was referred to two letters from the pursuers to the

defender dated 9 December 2020 and 4 March 2021, respectively. The earlier letter inter alia

notified the defender that the pursuers had received information about an incident on

27 November 2020 (being the discovery of the illegal drugs) and that depending on further

information received "there could be serious consequences for your tenancy". The second

letter advises that the pursuers had received further information about the incident and that

they were "now considering taking legal action and wish to hear if you have any

representation and to discuss the matter further." Mr Young did not know if any such

representations had been made but if they had, he would have been expected to be told

about them.

[16]

In relation to questions from the bench, Mr Young accepted that he was not familiar

with the nature of the defender's property or indeed the immediate locale. On being asked

to clarify the process by which the defender's SSTA could have been converted into a short

tenancy he appeared to confess that he was quite unclear as to how the legislative regime

operated and actually attempted to ask his solicitor how he should answer the question.

[17]

The defender is 50 years old. He has lived in the subjects for most of his adult life

having moved in there in 2002. Before that he had been homeless and then spent 18 months

in a bedsit waiting on his present tenancy. The accommodation was well suited in terms of

it being more or less around the corner from his mother and father. He visited them

frequently (nearly every day) with a view to seeing what he can do to assist them. The

defender was referred to the terms of an email from the DTTO Team, South Lanarkshire

Council dated 6 June 2022 enclosing a Criminal Justice Social Work ("CJSW") report

prepared for the deferred sentence hearing on 12 January 2022. The defender confirmed that

the information in the report as it related to him was true and accurate. In particular he had

no previous convictions for violence or threats of violence. His previous offending

behaviour was accurately characterised as relating to his alcohol and substance misuse

problems and offences committed in order to sustain those habits. He did not have any

previous convictions for carrying a weapon. Before the present offence he had no

convictions for selling drugs. He had complied with all aspects of the DTTO and the ROLO,

or at least was trying his best in order to do so. He was motivated to change his past

criminal behaviour. If he was now made homeless he was uncertain as to what the future

held for him but thought that the most likely outcome would be that he would end up in a

homeless persons hostel. That was unlikely to be beneficial for him as he would be in close

contact again with drug users and drug dealers. Staying with his parents was not an option

as they did not have a spare bedroom. In addition he had had a lot of problems with his

father historically. Those problems were exacerbated now that his father was struggling

with dementia. He had only missed one court date since the DTTO was put in place. He

put this down to going into a low mood on service of the present proceedings. Since then he

had pulled himself together and had got back on track. He was fearful as to his resilience

going forward in the event that he was made homeless. In cross-examination the defender

indicated that he believed the past complaints made against him had emanated from just the

one neighbour with whom he did not get on. It was impossible to stay with his parents as

the only accommodation they had available for him was a box room/walk-in cupboard.

While he had stayed overnight with them from time to time it was not option on a

permanent basis. That was even more so while he was subject to the ROLO which required

a sufficient amount of space for the associated electronic monitoring equipment.

[18]

Mr Noel Talbot is a DTTO officer with South Lanarkshire Council. He has 20 years'

experience in the field. He has been in his present position since November 2021 having

worked before that with the Glasgow Drug Court. Part of his responsibility is to prepare

reports on the suitability of offenders for the DTTO programme. In relation to the defender

he confirmed that his attendance was good, that he presented well and the assessment stage

had been very impressive. Mr Talbot was of the view that the defender was well motivated

to make lifestyle changes. He was punctual in making appointments and did not appear to

be under the influence of any substances. There had been three reviews to date and the next

one was due in mid-August 2022. Test results suggested that the defender had actually

made greater progress than might ordinarily be expected at this stage of the order. Test

results showed no dependency on illicit substances. The evidenced a large degree of

stability. The defender was complying with the programme with the permitted exception of

his controlled prescribed medication. Mr Talbot found the defender to be placid and open

to direction. He was quite a closed individual. It took some time to get to know him. A

good therapeutic relationship had developed between the defender and all of the

multidisciplinary team administering the DTTO programme. It was important to recognise

that the DTTO had been imposed as a direct alternative to custody. It was not an easy

option. It was an 18 month programme. On top of that there was a significant ROLO.

Mr Talbot's view was that the service of these proceedings had presented something of a

setback to the defender in terms of his motivation and focus. He had become distracted at

times and found it difficult to think of anything else except losing his accommodation.

Statistics showed that drug users were most at risk of regressing and overdosing after a

period of absence. The reason for the risk was that such individuals had a low tolerance as

they had not used for a period of time. Those statistics were based studies carried out on

former drug users who had been in prison or had failed to continue with a period of

rehabilitation. In 2020 there has been 1,339 such deaths. Such overdoses and deaths were

frequently preceded by a significant event which would result in a relapse. Mr Talbot was

of the view that the defender becoming homeless would constitute such a life event. This he

was aware that the defender had spent a long period of time in his own tenancy. He had not

been homeless for over 20 years. If he was made homeless now and had to find temporary

accommodation in a hostel then it was well known that such places were rife with illegal

substances. In such an environment it was very difficult not to become involved once again

in taking drugs. The defender had successfully disengaged from his former drug using peer

group. If he was made homeless and was in homeless accommodation such as a hostel in all

likelihood he would once again become enmeshed with such a group. An association with

active drug users increased the risk of an overdose. Such an outcome would be tragic for the

defender as that risk was absent in his present engagement with the DTTO. All of the

professionals involved with the defender were happy with his progress.

[19]

In cross-examination it was suggested to Mr Talbot that the defender was not

entirely drug-free as he was prescribed methadone but Mr Talbot said that was quite

normal. Mr Talbot could not comment on the suggestion that the DTTO could still continue

even if the defender had to live somewhere else in the absence of detail as to the nature and

extent and security of such accommodation. It was Mr Talbot's belief that the defender had

missed a court date because his office had not advised him of it through administrative

error. In in re-examination Mr Talbot clarified that the 18 month DTTO order was divided

into three distinct stages of each of 6 months duration. The 1st stage focused on drug

reduction. The 2

stage was focused on cranking up expectations. The 3rd stage was

focusing on returning to the community. The defender was just about to move into the

phase.

[20]

No sharp issues of credibility or reliability arise as the witnesses all gave evidence

about different aspects of the case, albeit there was necessarily some crossover between the

evidence of the defender and Mr Talbot. I found both of these witnesses to be credible and

reliable and in relation to the latter quite compelling. I was less impressed with the evidence

of Mr Young. While he took responsibility for the decision to pursue an action of eviction,

his evidence as to be basis upon which said decision was made was vague and in some

respects contradictory. I accept however that he was doing his best to tell the truth and I

formed the impression that the difficulties in his evidence arose from his not being directly

engaged in the process leading up to the decision being made.

Submissions

[21]

I am grateful to agents for their written and oral submissions. I do not propose to

rehearse them in detail. It is useful to record at the outset that both parties were broadly in

agreement as to the applicable law. The question for the court was whether application of

the streamlined procedure to evict the defender was proportionate having regard to his

rights under article 8 of the European Convention on Human Rights (ECHR). In the course

of the his submission Mr Kelly made reference to the relevant provisions of the 2001 Act and

the following cases: South Lanarkshire Council v McKenna 2014 SLT (SH Ct) 51 (Sheriff

Principal Scott); 2013 SC 212 (Inner House); Glasgow City Council v Jaconelli,

2011 Hous.L.R.17 (2011); City of Bristol v Mousah (1998) 30 HLR 32; Southend On Sea

Borough Council v Armour 2014 HLR 23; South Lanarkshire Council v Nugent 2008 HousLR 92;

South Lanarkshire Council v Gillespie 2012 HousLR 45; and South Lanarkshire Council v

George 2013 HousLR 49. In response Ms Young referred to the following: Streamlined

Eviction Process-Criminal or Anti-Social Behaviour Statutory Guidance for Social Landlords

(1 May); Short Scottish Secure Tenancies for Anti-Social Behaviour and Other Miscellaneous

Changes to Short Scottish Secure Tenancies Statutory Guidance for Social Landlords; Manchester

City Council v Pinnock [2011] 2 AC 104; Mayor and Burgessess of the London Borough of

Hounslow v Powell

[

2011] UKSC 8; and South End on Sea v Armour, supra Argyll Community

Housing Association Ltd v Daley George AP 2021 SAC (Civ) 9; Hjaltland Housing Association

Ltd v Sukhram 2018 HLR 100; Glasgow Housing Association Ltd v Hertherington 2009 SLT

(1998)(Sh Ct) 64; and Glasgow City Council v Cavanagh 1999 HLR 7

Pursuers

[22]

The nub of Mr Kelly's submission was that the "streamlined procedure" contained in

section 16(2)(aa) taken with paragraph 2 of schedule 2 of the 2001 Act was specifically

intended to deal with convicted drug dealers such as the defender: Argyll, supra. It was

accepted that despite the mandatory language used in that provision the grant of such an

order required to be a proportionate interference with the defender's right to respect for his

home under article 8 ECHR. He contended that it was. To succeed in a "human rights

defence" was a high test or threshold: Jaconelli, supra; McKenna, supra. That in the present

case the high threshold was such that the domestic law "must" grant the eviction. The

pursuers were not relying on the alternative ground for recovery under section 16(2)(a) on

the basis that if recovery was not proportionate under ECHR it was unlikely to be

reasonable. In this sense I understood Mr Kelly to be adopting what was said in para [56] of

Pinnock, supra:

"It therefore seems highly unlikely, as a practical matter, that it could be reasonable

for a court to make an order for possession in circumstances in which it would be

disproportionate to do so under article 8."

In considering the issue, it was not open to the court to speculate on whether the defender

would be rehoused under the homelessness legislation: Mousah. Mr Kelly had objected to a

line in the cross-examination of Mr Young on this issue. That objection was taken after

Mr Young had said he understood that the position would be difficult for the defender. As

there was no further questioning however these was no need to insist on the objection. If an

order for eviction were not made it would not be possible now having regard to the passage

of time to justify converting the SSTA to a short tenancy. Even if such a conversion route

was embarked upon the defender was entitle to make an internal appeal to the pursuers. If

that appeal was unsuccessful, the defender could challenge the proposed conversion by way

of summary application. A decision to evict would not prevent the DTTO order from

continuing. One option open to the defender would be to stay with his parents. The

defender could also apply to the court to have the ROLO revoked. The cases of Nugent,

Gillespie and George were referred to as examples where decisions by housing authorities to

raise eviction proceedings in cases involving drug dealing had been determined to be

reasonable. In his oral submission, Mr Kelly departed from the assertion in his written

submission that the case of Nugent contained a point of principle that was binding on me.

Consideration also had to be given to the human rights of the other tenants and neighbours

in the locality of the subjects. Reference was made to the English Court of Appeal decision

in Armour, supra for the principles set down to be applied in assessing proportionality.

Defender

[23]

Ms Young invited me to refuse the order for recovery of possession on the basis that

it would not be lawful, as it constituted a disproportionate interference with the defender's

home in terms of article 8 ECHR. In determining the approach to assessing proportionality,

she founded on Pinnock at paragraphs 51, 55 and 74. This was a seriously arguable case.

The defender's eviction would not effectively protect the rights those living in the relevant

community, and does not fulfil the purpose of the streamlined eviction process. The

pursuers had failed to make reference to any written repossession policy, they appear to

have acted upon an unpublished internal procedure, apparently without regard to the

defender's specific personal circumstances. Evidence was led that no investigation beyond

consultations with housing officers managing the area was conducted, interviews with the

defender and relevant neighbouring residents were not carried out and no direct contact

between the decision maker and the defender was considered to be appropriate. No specific

information was given in evidence as to what background information was consulted and

considered. In assessing proportionality, each case must turn on its own fact and

circumstances including those subsequent to any conviction on which reliance has been

placed. Reference was made to Glasgow Housing Association Ltd v Hetherington, Hjaltland

Housing Association Ltd v Sukhram, Armour, Powell and Pinnock, supra. It was submitted that

there were relatively few complaints made against the defender when set against the length

of his tenancy none of which had progressed by the pursuers. It was appropriate to consider

the background to the defender's conviction against his other criminal convictions. There

had been no complaints since the defender's said conviction. This was consistent with the

evidence contained in the CJSW report and that given by Mr Talbot. There was a significant

risk to the defender in terms of his rehabilitation and health if he were made homeless at this

point. Eviction was not a proportionate means of achieving a legitimate aim. There were

other tools in the tool box. That included the possibility of converting the SSTA into a short

tenancy. If that option had been offered to the defender as an alternative to these

proceedings he would have accepted it. While that was not canvassed with him in evidence

that was her understanding of his position.

Discussion

[24]

As a starting point I am of the view that the defender's rights under article 8 are

engaged in a determination of this issue. Those rights are:

"Article 8 Right to respect for private and family life

Everyone has the right to respect for his private and family life, his home and

his correspondence.

There shall be no interference by a public authority with the exercise of this

right except such as is in accordance with the law and is necessary in a democratic

society in the interests of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the protection of health

or morals, or for the protection of the rights and freedoms of others."

[25]

I consider that the threshold of "seriously arguable" (per Pinnock & Powell) has been

met. It is difficult to see how that could be otherwise in this case where what is at stake is

the home which the defender has enjoyed for approximately 20 years and the likely

consequences for his rehabilitation if he is evicted from it. Accordingly, I reject what

appeared to be Mr Kelly's primary submission that that threshold had not been met and that

eviction in a case such as the present was mandatory. In this regard I should say that I do

not consider that the decision of Sheriff Principal Taylor in the Jaconelli case to be in point.

The issue in that case related to the a local authority seeking recovery of possession of

heritable subjects which had been made subject to a compulsory purchase order in relation

to redevelopment in connection with the preparations for the Glasgow Commonwealth

Games in 2014. As a consequence of the compulsory purchase order the defender had no

right to continue in possession of the property. That falls to be distinguished from the

present case in which different considerations are in play.

[26]

It is incontrovertible that the streamline procedure was introduced in order to

strengthen the hand of housing authorities to secure more expeditious evictions in cases

involving anti-social behaviour or criminal behaviour, in particular drug dealing. It not

axiomatic, however, that that will be the outcome in every case as this procedure does not

override other rights and the measures to address and control such behaviour require to be

proportionate in terms of article 8: Argyll Community Housing Association Ltd v George, supra,

at paras [28] and [29].

[27]

The correct approach to consideration of this question was set out by the Supreme

Court in Manchester City Council v Pinnock, albeit that case dealt with English housing

legislation rather than the 2001 Act, as developed in Powell, supra, and applied in cases such

as Armour, supra. Lord Neuberger of Abbotsbury MR delivering the judgment of the court

stated the following at paras [49] - [55] and [74]:

"49.

Therefore, if our law is to be compatible with article 8, where a court is asked

to make an order for recovery of possession of a person's home at the suit of a local

authority, the court must have the power to assess the proportionality of making the

order, and in making that assessment to resolve any relevant dispute of fact...

Exceptionality

51.

It is necessary to address the proposition that it will only be in `very highly

exceptional cases' that it will be appropriate for the court to consider a

proportionality argument. Such a proposition undoubtedly derives support from the

views expressed by Lord Bingham, and has been referred to with apparent approval

by the European court in more than one case. Nevertheless, it seems to us to be both

unsafe and unhelpful to invoke exceptionality as a guide. It is unhelpful because, as

Baroness Hale of Richmond JSC pointed out in argument, exceptionality is an

outcome and not a guide. It is unsafe because, as Lord Walker observed in Doherty v

Birmingham City Council [2009] AC 367 , para 122, there may be more cases than the

European court or Lord Bingham supposed where article 8 could reasonably be

invoked by a residential tenant.

52.

... The question is always whether the eviction is a proportionate means of

achieving a legitimate aim. Where a person has no right in domestic law to remain

in occupation of his home, the proportionality of making an order for possession at

the suit of the local authority will be supported not merely by the fact that it would

serve to vindicate the authority's ownership rights. It will also, at least normally, be

supported by the fact that it would enable the authority 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. Furthermore, in many cases (such

as this appeal) other cogent reasons, such as the need to remove a source of nuisance

to neighbours, may support the proportionality of dispossessing the occupiers.

53.

In this connection ... the fact that the authority is entitled to possession and

should, in the absence of cogent evidence to the contrary, be assumed to be acting in

accordance with its duties, will be a strong factor in support of the proportionality of

making an order for possession.

54.

Unencumbered property rights, even where they are enjoyed by a public

body such as a local authority, are of real weight when it comes to proportionality.

So, too, is the right--indeed the obligation--of a local authority to decide who

should occupy its residential property... Therefore, in virtually every case where a

residential occupier has no contractual or statutory protection, and the local

authority 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.

However, in some cases there may be factors which would tell the other way.

Second issue: the application of this conclusion in general

55.

The conclusion that, before making an order for possession, the court must be

able to decide not only that the order would be justified under domestic law, but also

that it would be proportionate under article 8(2) to make the order, presents no

difficulties of principle or practice in relation to secure tenancies. ...no order for

possession can be made against a secure tenant unless, inter alia, it is reasonable to

make the order. Any factor which has to be taken into account, or any dispute of fact

which has to be resolved, for the purpose of assessing proportionality under

article 8(2), would have to be taken into account or resolved for the purpose of

assessing reasonableness...

64.

...`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...

74.

Where it is required in order to give effect to an occupier's article 8

Convention rights, the Court's powers of review can, in an appropriate case, extent

to reconsidering for itself the facts found by a local authority, or indeed considering

facts which have arisen since the issue of proceedings, by hearing evidence and

forming it's own view'."

[28]

The assessment of proportionality therefore requires a determination of whether the

outcome sought was required in order to meet the objective of a legitimate aim of the local

authority as balanced against the impact of that on the tenant, having regard to the right or

rights held by them and their particular circumstances, and the availability of alternative

less onerous measures. The question is one of "fair balance": Powell, supra per Lord Hope at

paragraph 37. In conducting that exercise it may be relevant and appropriate to consider the

subsequent behaviour or conduct of the tenant. Further, as was underlined in Pinnock, while

it might be rare for that assessment to result in an order for eviction being refused that is an

outcome not an approach.

[29]

To assist social landlords in the application of the streamlined procedure including

relevant consideration in conducting this balancing exercise the Scottish Government has

provided statutory guidance: "Streamlined Eviction Process - Criminal or Antisocial behaviour

(1 May 2019)". In the introduction section of that guidance it is made clear that the

introduction of the streamlined procedure was not the only new measure available to social

landlords to address antisocial behaviour. The other significant measure was the

introduction of a new short Scottish secure tenancy ("short tenancy") for antisocial

behaviour (paragraph 1.4). As is clear further on the guide there may be an interplay

between these respective responses to antisocial behaviour.

[30]

As has already been noted the guidelines specifically acknowledge the terms of

section 16(3A) of the 2001 Act which provides that the requirement placed on the court to

make an order for repossession under the streamlined procedure does not override any

other rights that a tenant has includes any arguments regarding proportionality in terms of

article 8 of ECHR

[31]

Section 4 of the guidance sets out the factors which landlords should consider a

before raising a streamlined eviction action:

"4.8

There are a range of factors which landlords should consider in deciding

whether raising eviction action using the streamlined eviction process is both

appropriate and proportionate. Some examples of this could include:

the nature and seriousness of the offence, including any recurring nature

of convictions or cumulative effect of several incidents, or the potential

seriousness of a one off offence;

who has been convicted of the offence and their connection to the

property;

where the offence was committed and the connection to the social

housing tenancy;

whether, and to what extent the offence has affected other household

members, neighbours or others in the community, including the impact

on neighbours and communities over time and the impact on the stability

of the community;

what action, if any, the person convicted of the offence is taking to make

positive change;

impact of eviction on household members;

other steps taken/which could be taken by the landlord or partner

agencies to address the antisocial or criminal behaviour.

4.9

In some situations it is likely to be very difficult to demonstrate to the court

that eviction action is proportionate. An example of this could be where a criminal

conviction is given for an isolated offence such as possession of a small amount of

illegal drugs and the behaviour of the tenant has caused no harm to neighbours or

others in the community. Another example could be where a person has been

convicted of a breach of the peace that had little local impact. The nature and

seriousness of the offence should be considered, along with any other relevant

factors or circumstances.

The Nature and Seriousness of the Criminal Offence

4.10

The type of criminal convictions that allow use of the streamlined eviction

process are only those for offences `punishable by imprisonment committed in, or in

the locality of, the house'. There are a range of serious criminal offences punishable

by imprisonment which could be committed in social housing or in the locality and

which may have a serious impact on others, including neighbours or others in the

community. Some examples of this could include: breach of an ASBO, closure order

or dispersal order, threatening and abusive behaviour, murder, rape, other violent

offences, offences related to domestic abuse, offences related to the use of offensive

weapons, and serious drug related offences.

4.11

There are however no specific offences where the landlord should invariably

seek to use the streamlined eviction process. The nature and severity of the offence is

only one of the factors which landlords should consider as part of their assessment of

whether eviction action using this process is appropriate and proportionate

4.15

Sustainable and secure housing is a key factor in preventing re-offending.

Landlords have a role to play in helping people to sustain tenancies and prevent

re-offending. There will be situations when the person who has received a

conviction has changed their behaviour. Some examples of this could be:

the behaviour has stopped, for example there have been no repeat

offences, convictions, disturbances or complaints;

engagement in training/employment;

participating in a rehabilitation programme for drug/alcohol dependency

or treatment for mental health issues;

regular and meaningful engagement with support services to change

behaviour in a positive way.

These examples may indicate positive change and landlords should consider the

impact that eviction action may have on preventing ongoing positive change and the

potential for re-offending in such cases. Landlords will however also want to be

satisfied that they consider any positive change in behaviour is sufficient and is

likely to be maintained in the long term."

[32]

In this case, I am satisfied that the pursuers are pursuing the legitimate twin

objectives of vindication of their property rights and management and allocation of their

housing stock. I am not persuaded however that they have taken necessary proper regard of

the foregoing factors and the defender's circumstances. As Mr Young stated in evidence he

approached the issue on the understanding that he did not require to consider

proportionality. This was also the basis of the primary submission made on behalf of the

pursuers. While Mr Young did indicate that he had regard to other matters in coming to a

decision I consider that the criticism of that decision making process by Ms Young as set out

in para [23] hereof to be well-founded.

[33]

I am fortified in this view having regard to the terms of the file notes to which

Mr Young was referred. These are the only contemporaneous documents, except for the

section 14 notice, which shed any light on the pursuers' decision making process and factors

taken into account. Mr Young stated that he had authorised the commencement of

proceedings at about the time of the file note dated 20 December 2021. This appears to

indicate that MK had taken legal advice and was requesting authorisation from Mr Young to

pursue an action of eviction with the bare assertion that "all guidance and policies have been

fully considered". I infer from this that based on that information Mr Young was content to

grant the request and consequently the section 14 notice was issued on 6 January 2022. The

fact that the defender received a non-custodial sentence and was made subject to the DTTO

and ROLO bears to have generated a request for a review by MK on 25 February 2022 but

the recommendation by MK and decision by Mr Young remained the same. In that file note

reference is made to "the seriousness of the offence, effect on neighbours and the

neighbourhood, and the Scottish government guidance". The seriousness of the offence

speaks for itself. No further detail is given in relation to how the offence has affected

neighbours or neighbourhood, nor what enquiries were made to determine this. Once again

there is no specification of which guidance is being referred to but the language is redolent

of it being taken from two of the factors listed in paragraph 4.8 (set out in [28] above). That

being so what is conspicuous is any apparent consideration of:

(1)

what action, if any, the defender was taking to make positive change; and

(2)

what other steps taken could be taken by the pursuers to address the antisocial

or criminal behaviour, in particular the conversion of the SSTA to a short

tenancy.

[34]

It seems clear therefore that no attempt was made to clarify the basis for the court

decision to impose a DTTO on the defender nor indeed the progress he has made with it. As

I have noted as is noted there was an attempt in re-examination to suggest that the defender

had been given an opportunity to make any appropriate representations to the pursuers.

Reference was made to two letters sent to him but these letters were dated 9 December 2020

and 4 March 2021: refer para [15]. The obvious point here is that the letters significantly

predated the date of the defender's conviction (10 December 2021) and the date of his

sentencing (16 February 2022).

[35]

Perhaps one of the most unsatisfactory aspects of Mr Young's evidence was his

equivocation and uncertainty as to the reasons given for why a short tenancy was not

considered as an alternative in this case. He gave two different reasons for this, neither of

which was satisfactory and involved speculation. Further as I have noted he appeared quite

unfamiliar with how the process of conversion could be instigated. This uncertainty is

perhaps all the more surprising standing that there is specific Scottish Government guidance

on the process: Short Scottish Secure Tenancies for Anti-Social Behaviour and Other Miscellaneous

Changes to Short Scottish Secure Tenancies Statutory Guidance for Social Landlords (published

1 May 2019). Perhaps somewhat surprisingly neither this guidance nor that relating to the

streamlined eviction process were put to Mr Young in evidence.

[36]

In terms of the statutory regime for the streamlined eviction process, a social

landlord has a period of 12 months from the date of the conviction in which to serve a

section 14 notice, being the necessary first step in such an action. As one of the factors

indicated in paragraph 4.8 of the guidance is consideration of what action of any person

convicted of the offence is taking to make positive change I would surmise that the that

12 month period was made available in order for such an assessment to be made. That

requires to be read with paragraph 4.15 of the guidance. The factors set out there bear to be

particularly apposite in relation to the defender in the present case but there was no

indication that the pursuers had had regard to them or taken them into account in any way.

[37]

As I have already observed it appears plain that the dominant and overriding

consideration of the pursuers in deciding to proceed with the streamlined procedure was the

seriousness of the defender's conduct resulted in his conviction. While this is of course an

important factor, as is clear from the guidance, it does require to be considered alongside

any other relevant factor or circumstances. I formed the impression on the evidence that the

pursuers' approach in this case ran contrary to the admonition contained in in

paragraph 4.11 of the Streamlined Eviction Process Guidance that there was no specific

offence which mandated the use of that process without regard to other factors.

[38]

One such factor is the possibility of converting an SSTA to a short tenancy. This new

remedy for social landlords was introduced at the same time as the streamlined procedure.

In terms of section 35 of the 2001 Act a landlord can convert an SSTA to a short tenancy

immediately by service on the tenant of the notice within a period of 3 years of the tenant

having acted in an antisocial manner. In terms of section 38 of the 2001 Act, a tenant has the

right of appeal to the court by way of summary application against such a proposed

conversion. Thus, the option of service of a section 35 notice would appear to remain open

to the pursuers until November 2023. On that basis then it is difficult to understand the

basis for Mr Kelly's submission that the passage of time meant it would no longer be

possible to justify initiating such conversion proceedings. It is of course a matter for the

pursuers as to whether or not they would wish to take this course of action. I have already

recorded that it was the defender's position that he would have agreed to such a conversion

had it been proposed at the outset rather than these proceedings. The fact that such a

disposal was not considered, or at least does not appear to have been properly considered, is

a significant factor (but not the only one) in my decision to refuse the order for repossession.

[39]

My decision to refuse the order for repossession should not in any way be

interpreted as condoning the serious crime for which the defender was convicted. Drug

dealing is a vile, corrosive and malignant issue in those communities where it takes place.

While the defender pled guilty to the offence, in the course of being interviewed for the

CJSW report, he explained that his involvement was likely to have been passive in nature.

He put the matter in his own words when giving evidence: "I take drugs not sell them".

I was prepared to accept this evidence. The CJSW report notes that the defender first started

taking illegal drugs in 2001 and while he has previous convictions for possession this was

his first conviction for intent to supply. Those circumstances are reflected in the fact that the

defender was sentenced to a robust community based disposal rather than imprisonment.

The CJSW report also reflects past failed attempts at rehabilitation under his own steam

rather than a holistic and structured rehabilitation programme such as that in place now

with the DTTO.

[40]

The defender is making very significant progress with that DTTO programme. If he

continues with that progress, there is the real prospect of his rehabilitation into society and

being deterred from drug use. Such an outcome would not only benefit the defender but

society at large and the community in which the defender has lived most of his life. As I

have already observed, the defender's present engagement with the DTTO team and

progress towards rehabilitation are on all fours with the factors set out in paragraph 4.15 of

the guidance. In particular, as I have indicated, I wholly accept the evidence from Mr Talbot

as to the very significant risk that the defender's rehabilitation into society will fail if he loses

the security of his current accommodation. That would be not only to his own significant

detriment but also to society and most likely the local community he is currently part of

standing that his parents continue to reside there.

[41]

The foregoing factors have persuaded me that an order to evict the defender from the

only home he has known in his adult life would be disproportionate to his rights under

article 8 of the ECHR.

Conclusion

[42]

I shall refuse the pursuer's first crave for recovery of possession. On the basis that

was the outcome I reached parties were agreed there should be no award of expenses to or

by. Thereafter the action shall be dismissed.

[43]

As a footnote, it is appropriate to record that shortly after commencement of the

proof I became aware that I had some knowledge of the defender in this case as I had been

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