The recent case of South Lanarkshire Council v McKenna has again raised the question of whether the failure to provide support is fatal to an eviction action where a SSSTA has been granted. The case also highlighted the potential use Article 8 (the right to respect for private and family life) of the European Convention of Human Rights in eviction actions.

Support or Not

Section 34 (7) of the Housing (Scotland) Act 2001 states that where a SSSTA has been granted due to previous antisocial behaviour or where the tenant or a member of the prospective household has a full ASBO the landlord must provide or ensure the provision of such housing support services as it considers appropriate to allow the “probationary tenancy” to convert to a full SSTA. The obligation on the landlord is therefore mandatory. The intention behind this provision is that, at the end of the probationary period, the tenancy might convert to a full SSTA. On a practical level, a Local Authority or RSL should be carrying out an assessment of the tenant’s needs. However, whilst they retain a discretion regarding the nature, frequency and the provision of the services and arguably may require to revise those services dependant on competing demands on resources, they have no discretion as to whether services are provided at all.

In the current case despite the fact that the Council carried out an assessment of the tenant’s needs, they did not implement a support plan. The tenant received no housing support services. Is that fatal to a subsequent eviction action particularly where anti-social behaviour is continuing?

Eviction and Support

Despite a failure to provide or ensure the provision of housing support services in a probationary tenancy, it is clear from the 2001 Act that the right of a Local Authority or RSL to raise eviction action is not affected. Failure to provide support in a probationary tenancy situation is not a precondition of decree for eviction.

Article 8 – Right to Respect for Private and Family Life

In the current case the tenant had to rely on Article 8 and the relevant case law to provide a defence to the eviction action. Article 8 provides that:-

1. everyone has the right to respect for his private and family life, his home and his correspondence;
2. 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 the health or morals, or for the protection of the rights and freedoms of others.

Whilst the court held that eviction is clearly an “interference” within the meaning of Article 8(2) and that as eviction was a proper remedy within the terms of the 2001 Act the Council’s right to evict would not be effected, the process leading up to eviction was also considered by the Court. Was that process which would include the failure to provide support against a statutory requirement to provide such support also be deemed to be an “interference” which could not be justified as proportionate? In those circumstances could the Council’s actions be said to be arbitrary, unreasonable and disproportionate in contravention of the rights of the tenant under the Human Rights Act 1998?

It was argued on behalf of the tenant that it was unlawful for the Council to take eviction action as it was incompatible with Article 8. She argued that the decision by the Local Authority to seek eviction was disproportionate where the Council had failed to provide support in terms of their obligations under the 2001 Act; their action to evict was therefore in breach of Article 8 because it was disproportionate against a background to provide support and could not be said to be necessary.

However the Court held that the process leading up to eviction including the lack of support was not an “interference” under Article 8 or part of the eviction process capable of being challenged under the European Convention. It also held that as eviction was a lawful remedy which is not dependant on the provision of housing support, the tenant’s defence under Article 8 was not soundly based in law. Had the provision of support been a precondition to eviction or had the Council failed to exercise other obligations which could be seen as a precondition to eviction they may have had some difficulty in resisting an argument that its actions were disproportionate in terms of the Human Rights Act 1998.

A Word of Warning!

Whilst the 2001 Act is clear that the provision of support is not a precondition to a decree of eviction being granted in the recovery of possession of a SSSTA, Local Authorities and RSLs as “public authorities” in terms of the Human Rights Act 1998 have to be aware that there is still the potential for a defence to an eviction action under Article 8 (as well as under the 2001 Act) where they have not followed the proper processes in terms of the 2001 Act. Such a defence may succeed even where a defence under the 2001 Act may fail if their actions are held to be arbitrary, unreasonable or disproportionate in contravention of the 1998 Act. In those circumstances there is the potential that an eviction action may fail.

Further information

For further information on the issues raised in this ezine, please contact Fiona Stephen, Partner or Shirley Evans, Associate or your usual contact at Anderson Strathern.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.