GLC statement on the reclaiming motion appeal in Ali v. Serco Ltd and others

Govan Law Centre (GLC) has been instructed by Mrs Shakar Omar Ali, a Kurdish Iraqi national, to pursue a reclaiming motion (appeal) before the Inner House of the Court of Session, Scotland’s supreme civil court.  Reclaiming prints and a reclaiming motion to appeal the Opinion of Lord Tyre, handed down on 12 April 2019, will be lodged at the Court of Session tomorrow, Thursday, 2 May 2019.

GLC’s Mike Dailly, Solicitor Advocate said:  “With the decision of the Outer House judge being subject to live appeal proceedings GLC would trust that Serco Ltd will continue their previous undertaking not to undertake lock-change evictions in Glasgow pending the appeal.   The failure to do so would occasion the unnecessary legal expense of raising multiple interim interdict actions at Glasgow Sheriff Court pending the outcome of the appeal to Scotland’s supreme civil court”. 

“GLC believes our client has reasonably good prospects and grounds of appeal.  We were delighted that Lord Tyre held Serco was a public body for the purpose of the Human Rights Act 1998 - something that both Serco and the Home Office had strongly resisted at the debate in February this year.  Our understanding is that jurisprudence from the European Court of Human Rights - which has been followed in appellate courts in the UK - requires the interference with our client’s human rights by a lock-change eviction to be compatible with the rule of law, and not just her article 8 right to respect for her home and family life”.

“That requires UK or Scots law to be sufficient precise and foreseeable in its effect, and the safeguards suggested by the Outer House judge in our client’s case require numerous administrative hurdles to be overcome, none of which directly stop a lock change eviction.  With the greatest of respect, we can see no precise or foreseeable adequate safeguards for asylum seekers by making section 4 applications to the Home Office, or thereafter appealing refusals of further support to the First Tier Immigration Tribunal”.

“An appeal to the First Tier Tribunal does not stop or prevent an eviction – there is nothing in the Tribunal rules to empower the Tribunal to put a lock change eviction on hold pending an appeal.  Further, the court in our client’s case relied upon the English UK Supreme Court decision of R(N) V. Lewisham Borough Council [2015] A.C. 1259. This concerned people who had a day to day licence to stay in accommodation overnight. Because of the very temporary nature of their occupation the UK Supreme Court held they did not live in a dwelling - as their residence was too transient and short. Such transient occupiers also had numerous rights of appeal to prevent an eviction”. 

“Our client has lived in her home for over a year and a half. In these circumstances such occupiers are entitled to be taken to court before eviction – and can then defend those proceedings – there is a significant body of UK Supreme Court and European Court of Human Rights case law that confirm occupiers of dwelling have this right.  Ultimately, both Serco and the Home Office placed considerable reliance on their “goodwill” not to undertake a lock change eviction on 7 days notice - despite there being no legal rules underpinning such goodwill, and the fact that the rule of law is concerned with precise legal rights, and not goodwill or speculation”. 

GLC statement on the reclaiming motion appeal in Ali v. Serco Ltd and others

Don't throw your cash away to a quick home buy company: GLC calls for greater public awareness raising in Scotland

Here Govan Law Centre's Laura Brennan, Trainee Solicitor, explains the pitfalls of giving your equity away to a quick home buy company in times of financial distress. 

Our recent Sheriff Appeal Court case of Santander -v- C emphasises the importance of homeowners seeking legal advice should their mortgage lender raise a court action for repossession against them. Unfortunately, some homeowners in these circumstances have proved vulnerable to private individuals or companies seeking to buy properties for well below the market value.

Govan Law Centre (GLC) is calling for greater awareness raising among Scottish homeowners of the consequences of a quick sale to avoid court action. Quick home buy companies operate in an unregulated market in the UK, so there is little or no consumer protection in practice. 

We recently assisted Mr C, a client whose mortgage lender had raised court action against him for repossession. Mr C had high arrears and a higher outstanding mortgage balance but as with all cases of repossession, the Court must still consider whether repossession is reasonable. 

Mr C suffered from poor health which affected his ability to work and consequently, his ability to pay his mortgage. Mr C was seeking an additional six months in the property during which time he would undertake improvement works to the property so that it could be marketed and sold. Unfortunately, this was not accepted by his lender who raised court action.

Decree was granted against Mr C when his case first called in court, given the level of his arrears. We appealed this decision on the grounds of reasonableness. It was the view of GLC that the Sheriff had not considered Mr C’s poor health or the impact on his daughter who attended school in the local area. It was also Mr C’s position that he had not had a fair and public and hearing, in accordance with his human rights.

After the appeal was raised and before a decision was made, a settlement agreement was reached. The terms of the agreement were that Mr C was allowed an additional four months in the property in order for it to be sold. We were delighted to learn recently that the additional time granted allowed Mr C to sell his property at a price that allowed him to discharge the security in full and Mr C will be left with a very sizeable cash surplus following the sale. By selling the property himself, Mr C was able to achieve the best possible open market value. This would not have been possible if he had not taken legal advice.

In similar circumstances some homeowners have opted for a quick sale of their property. We are aware of companies that offer to purchase the property of homeowners under this type of pressure. Typical offers begin at around 70% of the market value and continue to drop the further things are progressed. The proceeds that are obtained by the sale can also affect entitlement to Universal Credit and other means-tested benefits.

It is therefore of the utmost importance that, when faced with this situation, homeowners take legal advice to increase their awareness of their rights and maximise the proceeds of any sale. A company that will buy your property for a quick cash sale is unlikely to be the answer, and not worth the price you’ll pay.  

Further independent and impartial online information is available here: https://www.moneyadviceservice.org.uk/en/articles/quick-house-sales 

Don't throw your cash away to a quick home buy company: GLC calls for greater public awareness raising in Scotland

GLC raises concerns over Local Housing Allowance for private sector tenants in Scotland

On 28 March 2019, representatives of Govan Law Centre gave evidence to the Scottish Parliament's Social Security Committee alongside Shelter Scotland and Living Rent Edinburgh. A video of of the evidence session is available on the Scottish Parliament's website here. The Official Report of the meeting is available here (opens as a PDF).

GLC raises concerns over Local Housing Allowance for private sector tenants in Scotland

Scottish rents spiralling at double the rate of inflation don’t tell the full story: GLC raises concern over the private rented sector in Scotland

Unlawful and unfair exploitation of vulnerable tenants lie beneath Scottish Government statistics 

Rents in Glasgow and Edinburgh’s private rented sector (PRS) have risen more than anywhere else in Scotland, and Govan Law Centre (GLC) believes spiralling rent costs are leading to more homelessness and poverty.

We believe the story beneath the Scottish Government’s official statistics is stark, and deeply worrying.  Casework from GLC’s Citywide Private Rented Sector service in Glasgow reveals how many private landlords aren’t following the legal protections in place for rent increases. 

Some tenants end up paying for the repairs their landlords are obliged by law to carry out.

Many vulnerable tenants are being pushed into financial hardship and misery, and being forced to live below “the breadline” and rely on foodbanks to make ends meet.

In Glasgow, private rents have been hiked up by almost one third between 2010 and 2018 (31.13%) - almost double the rate of inflation (the consumer price index rose by a total of 18.7% over the last eight years - see further Chart 1 below).

GLC’s PRS Co-ordinator Wendy Malloy said: “We can evidence that rent increases being implemented during lets are having a serious impact on household financial sustainability, and increasing the risk of homelessness. A lot of the time these increases are being done without proper legal notice being served and with tenants simply accepting they have to pay”.

“We are seeing many households struggle with arrears and we are providing legal advice and representation in these circumstances. We believe this highlights the need to get the message out to people that there is a formal process in place for increasing rents and mechanisms to appeal should the tenant disagree with the proposed increase. Always seek free advice from your local law centre or advice agency”.

GLC’s Principal Solicitor Mike Dailly said: “Our casework provides cogent evidence of unlawful rent hikes across the City by private landlords. One of our clients is a disabled single parent whose landlord increased her rent by 43% during one month to £1,500 p.m. The housing benefit ‘local housing allowance’ was only £800 p.m. Other clients already struggling to make up housing benefit shortfalls have been trying to cope with rent increases of around £100 p.m. Tenants can apply for discretionary housing payments to help, but these are generally temporary. In practice, many tenants are meeting rent hikes by using their social security money for food and heating costs”.

“There is clearly a need for greater public awareness that rent hikes require formal written notice and must comply with certain legal procedures to be valid. There is always a right to appeal, although the law on market rents tends to favour private landlords. Govan Law Centre believes the private rented sector remains largely unregulated and in practice is too often a free-for-all for landlords out to squeeze as much money as they can from a tenant with limited options”.

“For low income tenants there is no consumer choice or genuine market competition in this sector. We believe there is a case for national regulation - there is no national regulation at present unlike for the social rented sector. There is a need for a ‘living rent’ in this dysfunctional market, and strengthening the rights of private sector tenants in Scotland. The present system is unsustainable and is costing the taxpayer in terms of the social, human, and medical problems it creates”.

Case study Mrs J
Mrs J is a widowed woman with 3 adult children living in private rented property. Mrs J’s has a number of health problems and her own income derives from sickness and disability benefits. Mrs J’s also has an entitlement to housing benefit of £800 per month which was capped at the maximum level of local housing allowance. The client with the assistance of her family were able to pay the difference of £250 towards the contractual rent of £1,050 each month. Mrs J’s landlord came to the clients home to advise that he was increasing the rent to £1,500 each month and that this was to be effective from the next date rent was due. Govan Law Centre were able to advise that this increase had not been intimated to her in the prescribed form and insufficient notice had been given and also advised this to the landlord. A few months on from this her landlord returned and provided the correct intimation and notice which meant there was to be an increase of £450 per month towards the rent. Mrs J and her family were unable to afford this increase despite significant reductions in their household spending. As a result of this increase Mrs J and her family had to make an application for Homelessness on the basis that their rent was unaffordable and can no longer sustain their tenancy.

Case study Mr K
Mr K is a single man living in private rented property. Mr K has lived in the property for over 12 years. Due to poor mental health Mr K has been unable to work throughout the period of his tenancy. Mr K’s housing benefit was capped at the maximum local housing allowance for the property but only had to pay a few pounds from his Employment Support Allowance to meet the contractual rent. At the start of the year his landlord advised that the level of rent was to be increased by £91 per month. Mr K has had some assistance with Discretionary Housing Payment to help meet this increase however due to the nature of the award this was only a short term award. Mr K started further utilising his Employment & Support Allowance to help cover the shortfall but this has meant he has had to cut back significantly on essential expenditure such as food, heating and lighting. Mr K was unable to sustain these cut backs and as such his rent has become affordable. Mr K is now currently looking to move into Registered Social Landlord housing stock but due to the level of housing stock available has yet to find suitable alternative accommodation. As a consequence Mr K has accrued arrears to the value of the monthly rental shortfall.

Case study Ms B
Ms B is a single parent to two boys and lives in private rented accommodation. Ms B works full time, so was paying rent herself until the landlord increased this from £650 to £750 pcm. As the property was also suffering disrepair and dampness, Ms B’s income was being used to provide additional heating and fixing repairs the landlord was refusing to do, such as replace a broken window, clean and paint over dampness. When the rent was increased Ms B begun to miss payments and accrued arrears of £1300 and late payments. Ms B has applied for DHP but this was refused. She was now borrowing from family and friends to manage the arrears and pay full rent. Govan Law Centre were able to report the landlord to Landlord Registration and the Housing and Property Chamber for Scotland and as a consequence a rent relief order and repair enforcement order were granted. Govan Law Centre were also able to ascertain that the rent increase was unlawfully implemented as no rent increase notice had been served. Ms B gave up her private tenancy a few weeks after the enforcement orders were granted to move in with family while seeking social housing.

PRS stats for Scotland from 2010 to 2018 (year end September)

https://www.gov.scot/publications/private-sector-rent-statistics-2010-2018/

Scottish rents spiralling at double the rate of inflation don’t tell the full story: GLC raises concern over the private rented sector in Scotland

GLC settles Sheriff Appeal Court eviction appeal: Elderpark Housing Assn v. M

Govan Law Centre has settled a Sheriff Appeal Court (SAC) case where a single female parent and her children were due to be evicted following an unsuccessful evidential hearing (proof) which had been conducted by a private firm of solicitors in Glasgow. Parties have agreed to allow the appeal insofar as it relates to the eviction, while adhering to the payment decree, with the appeal being dismissed on a no expenses basis. The Glasgow Scottish Secure tenant will remain in her home with the threat of physical eviction lifted.

The case of Elderpark Housing Association v. M concerned an appeal by way of Stated Case is in relation to a decree for recovery of heritable possession granted by the sheriff in summary cause proceedings in July 2017. The appellant argued that the proceedings were incompetent for the social landlord’s failure to comply with section 14(2)(a) of the Housing (Scotland) Act 2001 (“the 2001 Act”). As a matter of law, the appellant contented that the court was not entitled nor empowered to grant decree in the proceedings. The appellant’s arguments did not require to be tested by the SAC, however, the issues raised may be of interest to housing advisors and solicitors generally.

In the appellant’s submission section 14(2) of the 2001 Act is a fundamental statutory requirement that goes to the competency of the eviction proceedings. From a plain reading of section 14, a landlord cannot raise recovery of possession proceedings without complying precisely with the requirements of subsection (2). The language used in subjection (2) sets out the clear intention of the 2001 Act, namely that “proceedings may not be raised unless” a landlord complies with subjection (2). In the appellant’s submission, the use of these words meant that proceedings raised without compliance with section 14(2) are incompetent as a matter of law. There is no provision in section 14 for relief for non-compliance with section 14(2), nor is any power or discretion given to the court on this issue of jurisdictional competency. Section 14(1) and (2) provides as follows:

“14 Proceedings for possession
(1) The landlord under a Scottish secure tenancy may raise proceedings by way of summary cause for recovery of possession of the house.
(2) Such proceedings may not be raised unless—
(a) the landlord has served on the tenant and any qualifying occupier a notice complying with subsection (4),
(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 are raised”.

The appellant’s appeal point was that the respondent did not comply with section 14(2)(a) of the 2001 Act by failing to serve a notice complying with subsection (4) (the Notice of Proceedings for Recovery of Possession or “NPRP”) on a qualifying occupier within the appellant’s household. Subjection (6) of section 14 of the 2001 Act provides the following statutory definition of a “qualifying occupier”:

“(6) In this section and section 15, “qualifying occupier” means a person who occupies the house as that person's only or principal home and who is—
(a) a member of the tenant's family aged at least 16 years,
(b) a person to whom the tenant has, with the landlord's consent under section 32(1), assigned, sublet or otherwise given up possession of the house or any part of it, or
(c) a person whom the tenant has, with such consent, taken in as a lodger”.

No NPRP was served on the appellant’s daughter who was 16 when defences were lodged. She had been aged 16 for over four months when the NPRP was served on the appellant. This was not a matter in dispute between the parties. The 2001 Act places a duty upon the respondent to ascertain whether there are any qualifying occupiers in the tenancy subjects before serving a NPRP. Section 14(3) of the 2001 Act provides as follows:

“(3) Before serving a notice under subsection (2) the landlord must make such inquiries as may be necessary to establish so far as is reasonably practicable whether there are any qualifying occupiers of the house and, if so, their identities”.

The appellant’s submission was that the sheriff was not entitled in law to grant decree in July 2017. Reference was made to the House of Lords decision in Regina v Soneji and another [2005] UKHL 49, [2006] 1 AC 340. This opinion considers questions of statutory interpretation in relation to whether a provision is mandatory or directory.  The general position has been that where there is a failure to comply with a mandatory statutory provision what then follows is a nullity.  Reference was made to Lord Steyn’s judgment starting at page 349, paragraph 14: “A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply”.

This approach was consistent with the decision of the Sheriff Principal in North Lanarkshire Council v. Cairns 2012 SLT (Sh Ct) 128. This opinion of the court concerned a qualifying occupier – a tenant’s son - unsuccessfully arguing that he had a right to minute for recall of decree. He was not a “party” to the proceedings. However, the Sheriff Principal held that his Article 6 rights in terms of section 6 and schedule 1 of the Human Rights Act 1998 were safeguarded by the requirement for a NPRP to be served on him in terms of section 14 – reference was made to paragraph 32 at page 10 of the court’s opinion. The qualifying occupier had been served with a NPRP in Cairns, and had the opportunity had he so wished to apply to become a party to the action under section 15 of the 2001 Act.

The issue of an NPRP not being served on a qualifying occupier was not pled or argued before the sheriff at first instance. However, the appellant contended that it was pars judicis for the court to consider competency if the issue goes to nullity.

This point was recently considered by the Inner House in Simpson v. Downie 2013 SLT 178 – reference was made to paragraph 10: “By reference to Macphail, Sheriff Court Practice (3rd edn), para.2.09, and to the opinion of Lord Young in Douglas v Tait at (1884) 12 R., p.14, it should not be regarded as pars judicis for the court to take a technical point on competency unless either a nullity, or some important external interest, could be identified”. In Simpson the Inner House dismissed the action as incompetent as the issue was one that went to jurisdictional competency.

The appellant was represented by GLC’s Mike Dailly, Solicitor Advocate.

GLC settles Sheriff Appeal Court eviction appeal: Elderpark Housing Assn v. M