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Appeal judges rule Housing Act notice provision Convention-compatible

10 October 2012

A social housing tenant has failed in a challenge to the validity of provisions of the Housing (Scotland) Act 2001 which enabled her landlord to convert her tenancy to a short Scottish secure tenancy, and then give her notice to quit, after she was made the subject of an antisocial behaviour order.

Ellen McKenna, a tenant of South Lanarkshire Council, argued that s 36 of the Act was beyond the competency of the Scottish Parliament because eviction under the section would be an unjustified interference with her rights under article 8 of the Human Rights Convention, which protects the right to private and family life. Her main reason was the absence of a duty in the Act on the landlord to give reasons for serving a notice to quit.

She failed before the sheriff and sheriff principal, and today in the Court of Session Lord Clarke, Lord Hardie and Lord Bonomy refused her her further appeal.

Lord Clarke, delivering the opinion of the court, referred to two cases in the UK Supreme Court appealed from the English courts, Manchester City Council v Pinnock and Hounslow London Boroufgh Council v Powell, which concerned similar provisions in English housing legislation. The court had held there was compliance with article 8 provided a court had the opportunity to consider the proportionality of making an order for possession, and in doing so to resolve any relevant disputes of fact; but it would only be necessary to consider the proportionality issue if it was raised by the occupier.

He further pointed out that the Supreme Court had held that although the landlord should give reasons for its actions, so that the tenant could consider a proportionality challenge, the absence of such a requirement in the legislation did not make it incompatible with article 8.

"Along with the Supreme Court in Powell," Lord Clarke said, "we are of the opinion that such an obligation can, and should, be read into the Scottish legislation, simply as an aspect of procedural fairness which underlies all questions in relation to the vindication of human rights. We would stress, however, that only if the application is being sought to be challenged on the basis of proportionality would the authority need to give reasons beyond what is said, as a matter of course in the statutory notice and then, only, if their decision was based on reasons which go beyond what is stated in the statutory notice."

The judges added that the proportionality challenge could be taken as a defence to the possession proceedings, and need not be by way of a petition for judicial review.

Click here to view the opinion.