Drumchapel Housing Co-Operative Ltd raised an action for removal against their tenant Stacey Kelly based on violations of clauses 3.3 and 3.5 of her tenancy agreement. The defender resisted her eviction on the basis that it would violate her rights under Article 8 ECHR.

The case was heard by Sheriff Stuart Reid. Ms E McFadyen, solicitor, appeared for the pursuer and Mr G O’Donnell, solicitor, for the defender.

Significant quantity and value

The parties entered into a Scottish secure tenancy agreement over a flat in Drumchapel on 3 October 2016, which the defender occupied with her 13-year-old son. Between 6 and 2022 the defender stored diamorphine and cannabis for third parties in a locked safe in a kitchen cupboard within flat along with associated paraphernalia. She also provided the third parties with a key and allowed them free access to the property to remove and replenish drugs from the safe, in return for the cancellation of a £200 debt she owed to one of them, a small weekly payment, and some of the drugs from the safe for her personal use.

While the defender did not know which specific types of drug were stored within the safe, she was aware that she was permitting illegal drugs to be stored there for onward supply. The agreement came to an end when police searched the flat and found drugs with a combined street value of £11,000 within the safe. In January 2024, the defender was convicted following a guilty plea of being concerned in the supply of a controlled drug. She refused to identify the third parties for whom she agreed to store the drugs to the police.

On 15 March 2024, the pursuer served a notice of recovery of possession proceedings on the defender. In the action for recovery, the pursuer proceeded both under the normal eviction process under the Housing (Scotland) Act 2001 and under the “streamlined” process inserted into the 2001 Act by the Housing (Scotland) Act 2014, with the latter process not necessitating the court to find it reasonable to evict the tenant.

It was submitted for the pursuer that eviction was proportionate having regard to the significant quantity and value of the drugs seized and the defender’s financial gain. While there would be an adverse effect on the defender and her child, this was outweighed by the legitimacy of the pursuer’s aim seeking eviction.

For the defender it was submitted that she was vulnerable due to her mental health difficulties and susceptible to intimidation at the hands of drug dealers. Less intrusive measures were available, including a probationary tenancy, that had not been properly considered.

Social blight

In his decision, Sheriff Reid said of the relevant legal principles: “Lord Neuberger in Manchester City Council v Pinnock (2011) observed that proportionality is more likely to be a relevant issue ‘in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty’, and that in such cases public sector landlords “may have to explain why they are not securing alternative accommodation”. Beyond that, the Supreme Court stated merely that the assessment of proportionality in individual cases was ‘best left to the good sense and experience of judges sitting in the [first instance] court’.”

He continued: “Reported instances of successful proportionality defences are thin on the ground. I am aware of only one English decision in which the Article 8, ECHR defence was successful and of only two such Scottish cases, East Kilbride Housing Association v Carroll (Hamilton Sheriff Court, 2022); and River Clyde Homes Limited v Woods (Greenock Sheriff Court, 2015). In the overwhelming majority of reported cases, the proportionality defence has not succeeded.”

Asking whether this case could be successful, Sheriff Reid said: “The predominant objective of this repossession action is the removal of a source of nuisance to the neighbourhood. That objective is both intrinsic and manifest in the ground for recovery of possession founded upon by the pursuer. It is a perfectly legitimate objective. It can be justified for multiple reasons.”

He added: “The wretched impact of drug-dealing on neighbourhoods is notorious. The misery it brings to individuals, families, and the wider community is renowned. Tenants should be made aware that if they engage in this vile trade it will not be tolerated by landlords and that there will be adverse consequences for them. The wider community should have confidence that public sector landlords will take their responsibilities seriously, by acting robustly to extirpate this particular social blight from the midst of their neighbourhoods.”

Sheriff Reid concluded on the proportionality of the pursuer’s conduct: “I am not persuaded that the defender falls within that potentially exceptional category identified by Lord Neuberger in Pinnock. That category should probably be reserved for those with a more clearly-evidenced vulnerability that is significant both in nature and personal impact. For completeness, I also observe that there is no medical evidence to substantiate any diagnosed mental vulnerability suffered by the defender’ son, still less of its type, severity or impact.”

The sheriff therefore granted the order sought by the pursuer under the streamlined process.