When evicting tenants for criminal convictions, Registered Social Landlords (RSLs) might be concerned about possible defences. Under the “streamlined” evictions process, where proceedings are based on imprisonable convictions for offences committed at or near the tenanted property, RSLs need not show eviction is reasonable. However, the court may still consider “any other rights” claimed by the tenant (Housing (Scotland) Act 2001, section 16(3A)). The question is what those “other rights” might be. There have been some recent cases which explore what those defences might be, and the extent to which they might succeed.
Drumchapel Housing Co-Operative Limited v Stacey Kelly [2025] SC GLA 1
The tenant in this case had pled guilty to the imprisonable offence of being concerned in the supply of a controlled Class A drug, having allowed others to store diamorphine in her kitchen for two weeks to repay a debt. The RSL promptly raised streamlined eviction proceedings to evict her.
The tenant, unable to raise a defence of reasonableness, instead raised a defence of proportionality. Citing the European Convention of Human Rights and the Human Rights Act 1998, she averred that evicting her would be a disproportionate interference with her Article 8 right to a private life.
Sheriff Reid, on reviewing case law, ruled that eviction was proportionate for the following reasons.
- First, it is for the tenant to raise the matter, and prove the eviction is a disproportionate interference.
- Second, eviction following conviction is presumed to be proportionate. An RSL is presumed to be pursuing a “pressing social need” in such cases. As Sheriff Reid said, the objective of removing “a source of nuisance to the neighbourhood” is “perfectly legitimate.” The “pressing social need” would be given “real weight… in the assessment of proportionality.”
- Third, it will be rare for a tenant to prove that eviction is disproportionate. Any vulnerabilities must be clearly evidenced and “significant both in nature and personal impact”, and only exceptional vulnerabilities would have real weight. Here, the tenant had relied on a report from her GP indicating symptoms of anxiety, depression, and low mood. She lived with her 13-year-old son, and her conviction had been her first and only breach of her six-year tenancy. All this was not enough to outweigh the “pressing social need.”
Wheatley Homes Glasgow v Yasmin Abdi Sharif [2025] SC GLA 2
This was another decision of Sheriff Reid in Glasgow Sheriff Court in a streamlined eviction action. There were various incidents of antisocial behaviour and some criminal convictions between 2017 and 2021 and the landlord raised streamlined eviction proceedings.
As in the Kelly case above the tenant again raised an argument that eviction would be disproportionate and therefore unlawful in terms of the Human Rights Act 1998. However the tenant also raised an argument based on Section 15 of the Equality Act 2010. This was based on the argument that the conduct complained of was something arising from her disability. The sheriff found in fact that the tenant had a severe and enduring mental illness and that she was disabled.
The tenant was successful on both the human rights and the equality arguments in persuading the sheriff that eviction was disproportionate.
On the human rights argument the sheriff found that the tenant was genuinely vulnerable as a result of mental illness, and so her case was one of those potentially exceptional cases where a human rights argument could succeed. Further, the conduct complained of by the landlord was directly attributable to that mental illness. The tenant’s compliance with her medication and engagement was good and there was a low likelihood of a recurrence of the behaviour complained of. Eviction would be likely to disrupt her mental health recovery. There had previously been an anti-social behaviour order granted which had largely been complied with and there had been no material issues within the last three years.
However the sheriff also assessed that the Equality Act 2010 defence was made out and eviction would be unlawful on this basis for similar reasons to the human rights argument. The tenant’s antisocial behaviour had been a consequence of psychotic episodes due to a relapse in her mental health. Once the tenant had established that she was disabled, that she was being treated unfavourably by her landlord who was seeking to evict her, and the reason for that unfavourable treatment was something arising out of her disability (namely the antisocial behaviour) the onus then shifted to the landlord to show that eviction was a proportionate means of achieving a legitimate aim. The sheriff determined that the landlord had failed to do this.
East Kilbride Housing Association v T [2025] SC HAM12
This was a case decided by Sheriff Spier in Hamilton Sheriff Court in 2022, though it was not reported until 2025. This was another streamlined eviction action where the sheriff refused to grant decree. The tenant was convicted of being concerned in the supply of controlled drugs on 26 November 2020 in the property. The drugs had a street value of approximately £41,500. The tenant had been sentenced to a Drug Treatment and Testing Order and a restriction of liberty order.
In refusing to grant the eviction order the sheriff placed reliance upon the length of time that the property had been the tenant’s home, which was twenty years. Before raising an eviction action a landlord has to consider statutory guidance, which sets out a range of relevant factors. The sheriff found that the landlord had not done so. The sheriff also placed reliance on the significant progress that the tenant was making with his drug treatment and testing order. There was a very significant risk that if evicted the tenant’s rehabilitation from drug use would fail.
Considerations for Landlords Considering the Streamlined Procedure
While there is no reasonableness defence this does not guarantee success in a streamlined eviction action. There are several defences which can be put forward by a tenant and landlords need to be alive to these.
However there have been unreported cases where eviction has been found to be proportionate. In particular there was a 2023 case in Glasgow Sheriff Court, a tenant pled guilty to being concerned in the supply of cocaine and cannabis with a value of over £62,000. The Sheriff found that the tenant in that case was not a credible witness, and that decree should be granted given the serious nature of the offence.
A previous reported case of North Lanarkshire Council v Kelly [2022] SC HAM 26 also found that it was proportionate for the tenant to be evicted. The conviction in this case was the tenant’s son who pled guilty to being concerned in the supply of drugs, with over £38,000 of drugs being found along with over £12,000 in case and a number of mobile phones. A novel argument was attempted in this case around whether the streamlined procedure had retrospective effect, though this was rejected. Sheriff Spier was satisfied that the twin aims of vindication of its property rights and management and allocation of its housing stock were being pursued by the landlord. While eviction would have an effect on the tenant clear evidence in terms of a medical report was not provided to the court. Sheriff Speir considered that eviction would be proportionate and granted the order sought.
There have been other unreported decisions which have come down in both directions. There are lessons that can be drawn from the caselaw overall which can inform the decision-making process when registered social landlords are considering raising streamlined eviction proceedings.
It is extremely important that landlords properly have regard to the statutory guidance. As cases show not doing this, and not being able to provide cogent evidence that this has been done, can be fatal in an eviction action. The guidance is there so that the streamlined eviction procedure is used in appropriate cases, and regard is had to all of the circumstances, and not just the severity of the conviction. Landlords should be able to demonstrate in evidence to the court that the factors set out in the Guidance have been considered in advance of raising eviction proceedings, and this might involve the amendment of some procedures.
Where there are steps short of eviction available, such as conversion to a short Scottish secure tenancy, these should be considered and any refusal to use them should be able to be justified. Further, it is important for the landlord to contact the tenant, household members and any relevant neighbours. Contacting relevant people ensures that regard is given to steps that the tenant is taking to make positive change and the impact of the offence on members of the household. It is also helpful to keep contemporaneous records of what steps were taken having regard to the guidance, as these can be valuable evidence in court.
However the landlord should also be aware that even once proceedings are raised there could be proportionality arguments, both in terms of the Human Rights Act 1998 and the Equality Act 2010. While it might appear when raising the action that eviction would be proportionate, this does not necessarily mean it will be proportionate by the time the case gets to court. If presented with arguments about a vulnerable tenant or household member a landlord should consider this closely and continue to consider whether the decision to evict remains proportionate. This is particularly the case where there is a strong link between a health condition and the conduct complained of, or where eviction would have a particularly dramatic effect on a tenant. If a tenant’s conduct is something arising from their disability, as in the Wheatley Homes Glasgow case, and the tenant can demonstrate this, the onus is then on the landlord to demonstrate that eviction is proportionate in terms of the Equality Act 2010.
Proportionality in the Equality Act 2010 is different to proportionality in human rights cases. In human rights proportionality the court is essentially taking on a judicial review function and simply assessing whether overall an appropriate balance was struck between the rights of the tenant and the landlord. In terms of the Equality Act 2010 the court must undertake the proportionality assessment and determine if the least intrusive method of achieving their legitimate aims has been used by the landlord. A landlord should go through the other steps which might be used, like a short Scottish secure tenancy or a warning, and consider if these would be appropriate. If they decide that they would not then this position will potentially need to be evidenced and justified in court. If medical evidence has been produced, or the landlord only becomes aware of the medical issues part way through the eviction procedure they need to consider this carefully.
While the authorities are mixed in their outcomes they demonstrate some steps that landlords can take when deciding whether to use the streamlined procedure. If they engage fully with the statutory guidance, seek out the relevant information from different parties at the decision making stage, document the process appropriately and review their decisions if new information comes to light they put themselves in a better position to proceed with legal action. For more information or advice, contact our experienced team.
