Reference To The Inner House Under The Act Of Sederunt (proceedings For Determination Of Devolution Issues Rules) 199 From Glasgow Sheriff Court - Sou V. Ellen Mckenna

JurisdictionScotland
JudgeLord Clarke,Lord Bonomy,Lord Hardie
Judgment Date10 October 2012
Neutral Citation[2012] CSIH 78
Date10 October 2012
Docket NumberXA57/12
CourtCourt of Session
Published date10 October 2012

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Clarke Lord Hardie Lord Bonomy [2012] CSIH 78

XA57/12

OPINION OF THE COURT

delivered by LORD CLARKE

in the reference to the Inner House under the Act of Sederunt (Proceedings for Determination of Devolution Issues Rules) 1999 from Glasgow Sheriff Court

in causa

SOUTH LANARKSHIRE COUNCIL

Pursuers and Respondents;

against

ELLEN McKENNA

Defender and Appellant:

_______________

Pursuers and Respondents: Upton; Simpson & Marwick

Defender and Appellant: Stalker; Drummond Miller for LSA Brown &Co

For the Lord Advocate: Ross; Scottish Government Legal Directorate

10th October 2012

[1] This is a reference from the Sheriff Principal at Glasgow under rule 10 of the Act of Sederunt (Proceedings for Determination of Devolution Issues) 1999. The background to the reference being made is as follows.

[2] The appellant had let to her by the respondents, from 7 April 2004, a house at 74 Landmer Drive, Rutherglen, Glasgow under a secure tenancy. On 5 October 2007, an antisocial behaviour order was granted against the appellant in Glasgow Sheriff Court. Thereafter, on 5 March 2009, the respondents served on the appellant a notice under section 35 of the Housing (Scotland) Act 2001, the effect of which was to convert her secure tenancy into a short Scottish secure tenancy. That tenancy was for a period of 6 months with an ish date of 5 September 2009. On 13 May 2009, the respondents served on the appellant a notice under section 36 of the 2001 Act intimating to her that they intended to raise proceedings for recovery of possession of the house. On 13 July 2009, the respondents served on the appellant a notice to quit. The respondents then raised proceedings for recovery of possession by way of a summary cause summons in Glasgow Sheriff Court. This application was brought under section 36 of the 2001 Act which is to the following effect:

"(1) The landlord under a short Scottish secure tenancy may raise proceedings by way of summary cause for recovery of possession of the house which is the subject of the tenancy.

(2) Such proceedings may not be raised unless -

(a) the landlord has served on the tenant a notice complying with subsection (3),

(b) the proceedings are raised on or after the date specified in the notice, and

(c) the notice is in force at the time when the proceedings were raised.

(3) A notice under subsection (2) must be in such form as the Scottish Ministers may prescribe by regulations and -

(a) state that the landlord requires possession of the house,

(b) specify a date, not earlier than -

(i) two months, or such longer period as the tenancy agreement may provide, from the date of service of the notice, or

(ii) the date on which the tenancy could have been brought to an end by a notice to quit had it not been a short Scottish secure tenancy, whichever is later, on or after which the landlord may raise proceedings for recovery of possession.

(4) A notice under subsection (2) ceases to be in force six months after the date specified in it in accordance with subsection (3)(b) or when it is withdrawn by the landlord, whichever is earlier.

(5) The court must make an order for recovery of possession if it appears to the court that -

(a) the tenancy has reached the ish referred to in section 34(5)

(b) tacit relocation is not operating.

(c) no further contractual tenancy (whether or not a short Scottish secured tenancy) is in existence, and

(d) subsection (2) has been complied with.

(6) An order under subsection (5) 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, at that date."

It is those provisions which have given rise to this reference. In her defence to the proceedings brought against her by the respondents under section 36, the appellant argued inter alia that (a) the notice to quit was invalid and (b) that even if the requirements of section 36 were met by the respondents, the eviction of the appellant would be unlawful because it would be an unjustified interference with her rights under article 8 ECHR.

[3] As it happens questions as to the rights under ECHR of persons, such as the appellant, who occupy property on an unsecured basis, to resist eviction when domestic law provides for recovery of possession of the property so occupied under a tenancy, or other arrangement, under which possession of the house has been enjoyed by the occupier in question, were the subject of recent detailed judgments, both from the European Court of Human Rights and the Supreme Court in England and Wales, while the appellant's case has been before the sheriff court.

[4] By judgment dated 22 April 2010, the sheriff found that the respondents' case was soundly based in law. In a second judgment dated 5 November 2010, the sheriff found that the defence was not soundly based in law and granted decree for recovery of possession. The appellant then appealed the sheriff's interlocutor to the sheriff principal. The sheriff had heard arguments in relation to the appellant's defence based on article 8 before the Supreme Court issued its decision in the case of Manchester City Council v Pinnock [2010] 3 WLR 1441, a case which concerned proceedings by a local authority in England against a tenant continuing to occupy a house under what is known in England and Wales as a "demoted tenancy" the statutory regime applicable to certain unsecure tenancies under the housing legislation for England and Wales, in particular the Housing Act 1996. As is noted in the reference to this court the "demoted tenancy" can be regarded as the equivalent of the short Scottish secure tenancy under the 2001 Act, particularly in relation to the way in which such tenancies can be brought to an end. In particular in England and Wales, a tenancy where the tenant originally had security of tenancy may be "converted" or "demoted" to a tenancy where there is no such security of tenure, demotion or conversion occurring where the tenant has been guilty of antisocial behaviour during the occupancy of the tenancy. As under the Scottish legislation, the local or other public authority may raise proceedings under the relevant legislation against the tenant and in such proceedings, according to the plain meaning of the relevant statutory provisions, the court must order recovery of possession of the house in question if the landlord has complied with certain procedural requirements.

[5] It is to be noted that while there exist striking similarities between short Scottish secure tenancies under the 2001 Act and the demoted tenancy under the 1996 English legislation, there are some procedural differences contained in the respective primary legislation which will require to be borne in mind and addressed in this judgment. In the English legislation, in relation to the demoted tenancy regime, the relevant legislation is now section 143 of the Housing Act 1996. Section 143(B)(1) provides that if a tenancy is demoted (because of antisocial behaviour on the part of the tenant) the demotion will last for a year, unless the landlord brings possession proceedings within that year. If such proceedings are brought within the year and are not determined before the year's end, the demoted tenancy continues until the proceedings are determined. When such proceedings are brought within the year, and an order for possession is made, the tenancy ends. If no such proceedings are brought, or they are brought and they fail, then, at the end of the year, the demoted tenancy will become a secure tenancy. Subsection (1) of section 143(D) of the 1996 Act states that a landlord can only bring a demoted tenancy to an end by obtaining an order for possession from the court. Section 143D(2) provides:

"The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed."

The effect of section 143E of the 1996 Act is that, before issuing possession proceedings against a demoted tenant, a local authority landlord must serve a notice informing him of (a) the fact that it has decided to seek possession, (b) the reasons why, (c) the date after which the proceedings will be issued, (d) the tenant's right to request a review of the landlord's decision, and (e) where to get legal advice. Section 143F of the 1996 Act also entitles the tenant, within 14 days of the notice, to request a review, in which case the local authority landlord is obliged to carry out a review which complies with regulations made by the Secretary of State and then to inform the tenant of the outcome. It is to be noted that there are no provisions in the Scottish legislative equivalent to the provisions of section 143E and F of the English legislation and, in particular, with regard to the requirement upon the authority to provide reasons in the notice to quit.

[6] In England and Wales recovery of possession of a house provided to homeless persons is governed by Part VII of the 1996 Act. In the case where proceedings for recovery of possession of such property are brought there is no requirement that they should be preceded by a notice to the occupier setting out the reasons for the landlord seeking recovery of possession of the house.

[7] The decision of the Supreme Court in the case of Pinnock deals authoritatively with how the English legislation, referred to falls to be considered, and applied in the light of article 8 of ECHR. Following that decision, the appellant lodged a Specification of Devolution issue. This was intimated to the Lord Advocate. Answers were lodged by both the respondents and the Lord Advocate. In the meantime the Supreme Court gave its judgment, in the case of Hounslow London Borough Council v Powell [2011] 2 AC 186. That decision elaborated upon the law set out in Pinnock and also dealt with what...

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2 books & journal articles
  • Human Rights and the Law of Leases
    • United Kingdom
    • Edinburgh Law Review No. , May 2013
    • 1 Mayo 2013
    ...of short Scottish secure tenancies under section 36 of the Housing (Scotland) Act 2001.8585South Lanarkshire Council v McKenna [2012] CSIH 78, 2013 SLT 22. See also obiter comments of Sheriff Principal E F Bowen QC at para [10] of Easthall Park Housing Cooperative Ltd v Martin 2012 Hous LR ......
  • ‘Too Well-Travelled’, Not Well-Formed? The Reform of ‘Criminality Information Sharing’ in the UK
    • United Kingdom
    • Police Journal: Theory, Practice and Principles No. 86-1, March 2013
    • 1 Marzo 2013
    ...9; R (B) v Crown Courtat Stafford [2006] EWHC 1645 (Admin) [23]; and, the recentScottish case of South Lanarkshire Council v Ellen McKenna[2012] CSIH 78, [Para 13].38. Wilson LJ in R (C) v Secretary of State for Justice & Another[2011] EWCA Civ 175 at para. 25.39. Munby LJ in H & L v A City......

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