Friday 23 June 2017

How we can make Scots law more fair for consumers

This article first appeared as a column in the Sunday Herald on 18 June 2017.  Here GLC's Mike Dailly explains how we can make Scots law more fair for consumers.

It goes without saying that any good legal system should treat everyone equally. But what happens when it’s stacked in favour of a particular group of people? This can happen by accident as opposed to unfair design.

Scotland’s legal system has a number of injustices that seriously disadvantage consumers. These would be easy to fix in a Scottish Government Bill, especially as the Government in Scotland has already been reviewing ‘diligence’ – the process of enforcing debts.

Here are just a few that are in need of fixing. Getting on the rung of the homeowner ladder is elusive for most people these days. In practice young people or students starting-out will generally look to rent in the private rented sector.

It’s not unusual for landlords to look for a ‘guarantor’ – usually Mum or Dad, who is asked to sign a separate agreement guaranteeing any defaults by their tenant son or daughter. Sounds reasonable, but these guarantee agreements generally have a clause allowing the landlord to ‘register them for execution’. This means they can claim any sum without having to prove the debt in court.

In practice this is misused. I dealt with a case recently where the landlord had registered the guarantee agreement in the ‘Books of Council and Session’ in Edinburgh, claiming thousands in rent and damages to the flat. It was nonsense, but registration allows the landlord to obtain the equivalent of a court order.

This is clearly unfair. It’s completely one-sided, with no opportunity for you to challenge what could be an entirely fictitious claim. The first you might know about anything is when sheriff officers knock on your door.

In theory this could lead to you being made bankrupt, or worse still threaten the loss of the roof over your own head. In the case I was involved in, a court action had to be raised to interdict the use of the registered agreement, and ask a judge to reduce or cancel it. But the point is no private creditor should be able to get the equivalent of a court order on nothing more than their own say so.

This doesn’t only occur with guarantee agreements, it can happen to any homeowner in Scotland who has a dispute with their factor or neighbour. Under the 2004 Tenements (Scotland) Act, a property manager or neighbour in a tenement can register a ‘Notice of Potential Liability’ of a debt in the Land Register.

There is no need to prove the debt. The fact it’s registered against your title deeds means it is unlikely you will be able to sell your home without paying it. This system is open to abuse without any requirement for independent scrutiny. It was only three years ago the Scottish Government got round to introducing a form for the notice to be removed.

One of the most ubiquitous forms of injustice can occur with council tax disputes. You may be entitled to a single person discount, or council tax benefit, or perhaps the figure has just been miscalculated. Disagreements over council tax can hang around someone’s neck like an albatross.

Your local authority will often simply proceed to send what they think is your bill, together with a 10% surcharge to the sheriff court, who will issue a ‘summary warrant’. This is like a court decree. Since April 2008, you can now apply to the court for time to pay if you accept the debt.

But if the figure is wrong, technically you have a right to apply to the local Valuation Appeal Committee. Most people aren’t aware of this route, although even if they are it’s not fast, and doesn’t help if your council has passed the warrant to sheriff officers who are threatening various forms of recovery.

Local authorities in Scotland are also the worst offenders for making people bankrupt for arrears of three thousand pounds or more – even if they are disputed. Once bankrupt, with legal and trustee fees, plus 8% statutory interest, a debt of £3,000 can mushroom into £15,000 to £20,000. This isn’t in the public interest, especially, if the original debt was wrong.

A final example of an area of law in need of reform must be the Scottish Government’s Debt Arrangement Scheme. It was designed to enable people in financial difficulties to obtain respite to make payments to their creditors in a manageable way.

In practice, people who use the Scheme end up paying back 100% of their debts over 7 to 8 years. Once discharged from the Scheme their credit rating may be affected for up to six years. Contrast this with trust deeds, which you can access from private firms. You can pay back as little as 10% of your debts over four years.

Why do we have a public scheme that offers no real incentive to Scottish consumers, giving them an impaired credit rating that could last as long as 14 years? The balance is wrong. There is an easy fix these problems. It just takes the will to do it.


Thursday 15 June 2017

Challenging decisions to reduce social care in Scotland

In a judicial review permission hearing today (15 June 2017), Glasgow City Council (GCC) gave an undertaking to the court that they would not implement a decision to reduce the care of a severely disabled elderly lady residing in Glasgow South West.

The concession made before Lord Ericht by Anna Poole Q.C., counsel for GCC was with respect to a decision to reduce the provision of 24/7 care workers for a 74 year old lady with cerebral palsy by up to three hours a day. The petitioner was represented in court by Govan Law Centre's (GLC) Mike Dailly.

The Council had decided that the provision of a care worker would be replaced with "tele-care", a remote contacting system, notwithstanding medical evidence confirmed that the petitioner's health had deteriorated and her care needs had in fact increased.  Accordingly, with the undertaken given, the petition was dismissed with no expenses.  It is important to note that any challenge to the provision of social care will turn on the individual facts and circumstances of each case.

From 1st April 2017 the "Social Work Complaints Review Committee", established under section 5B of the Social Work (Scotland) Act 1968, has been abolished.  This system still applies for pre-1 April 2017 complaints on a transitional basis.  More details of the new regime is available here:

Under the new system the first stage is to lodge a complaint to the local authority. They may simply decide the complaint on the papers, or agree to an investigation and then issue a decision.  If a service user remains dissatisfied they can complain to the Scottish Public Service Ombudsman (SPSO). The SPSO can now also consider complaints on professional judgments made by social workers.

This is a complex area of law, and if you live in the Southside or North East of Glasgow you can contact GLC for help, advice and representation where appropriate. Contact us on 0141 440 2503. Alternatively, if a case is within Scotland  and it raises an issue of wider strategic public interest and importance, we may be able to assist - please contact pilu@

Wednesday 7 June 2017 - our new website goes live

Govan Law Centre (GLC) has launched a new website which you can find at

Our aim is to set out detailed information on the work that we do at the law centre - our various projects that serve Scotland and beyond, our campaigns, policy and law reform work, and public interest strategic litigation and test case work. As well as showcasing particular initiatives that may be of wider interest to the public and/or advisors.

This blog will continue meantime, but if you want to find out what we are all about please bookmark and visit We will be updating the new site, and adding greater functionality to it, as well as utilising video and audio where appropriate.