The decision from the Inner House of the Court of Session in the key test case South Lanarkshire Council –v- Ellen McKenna has just been published by Scottish Civil Law Reports (2012 SCLR at 384).
LSA has represented the Defender in this case for some years. It is the first major test case in Scotland dealing with the complexities of the Short Scottish Secure Tenancy regime (SSST).
This is an arrangement whereby in cases of alleged anti-social behaviour a secure tenancy is converted to one in which there is no security and can be brought to an end by service of a statutory notice (a SSST).
The complexity of the regime can be seen from the fact that the action relating to the Defender’s tenancy started in 2009 and is still ongoing!
Technical and complex though the case is, it has some considerable general importance.
In particular, the tenant was not successful in her attack on the principle of the SSST regime on human rights grounds, however, the court did hold that the decision to proceed to end the tenancy and to evict by the local authority could, in principle on a case by case basis, be attacked on human rights grounds. In particular, the court stated that a “proportionality” challenge (which would rarely be successful) could be attempted (for instance, that the local authority in ending the tenancy was using a sledgehammer to crack a nut, that the decision failed to balance the effect of the eviction on the tenant against whatever offences he had committed).
Accordingly to enable a tenant or an occupier to reach an informed judgement as to whether or not to raise such a proportionality challenge, it was only fair that the tenant be provided by the local authority with its reasons for seeking repossession.
Given that the relevant Scottish Legislation does not exclude a proportionality challenge, then a right to have reasons expressed followed as a necessary consequence.
The court did stress, however, that only if the decision was being sought to be challenged on the basis of proportionality would the local authority need to give reasons beyond what is said as a matter of course in the Statutory Notice and then only if its decision had been based on reasons which went beyond what was in the Statutory Notice.
This is an Inner House decision and, accordingly, binding in all lower courts.
Accordingly, for the future, all tenants (and qualified occupiers) disputing eviction from SSST’s should seek advice on whether they can question the local authority’s decision on the basis of human rights proportionality. If they can, the first step is to require the local authority to produce detailed reasons for its decision, assuming that the local authority’s decision goes beyond the minimum required in terms of the statute.
Given the seniority of the court dealing with this matter, its approach will be highly persuasive in other types of decision in other areas.
It will be interesting to see how this develops in the future.