It was argued on behalf of Daley George that it was not established that Argyll Community Housing Association Ltd had not complied with Scottish Government guidelines on a “streamlined” eviction process for anti-social tenants introduced by the Housing (Scotland) Act 2014. 

The appeal was heard by Sheriff Principal Murray, sitting with Sheriff Principal Pyle and Appeal Sheriff McCartney. The appellant was represented by Stalker, advocate, instructed by the Civil Legal Assistance Office, and the respondent by Anderson, advocate, instructed by BTO Solicitors. 

Proactive stance 

The appellant had occupied a property in Dunoon under a Scottish Secure Tenancy Agreement, under which he had agreed not to use or allow his house to be used for illegal purposes, including the use of controlled drugs. In February 2019, he pled guilty to a charge of being concerned in the supply of cannabis at the subjects in November 2018. 

Having learned of the conviction, the respondent served a notice of proceedings for recovery of possession under section 14 of the Housing (Scotland) Act 2001. The sheriff who heard the action at summary cause found that the respondent had a robust anti-social behaviour policy, including a proactive stance in tackling such behaviour, and that the appellant was aware of this when he signed his tenancy agreement. 

In evicting the appellant, the sheriff found that the respondent had regard to Scottish government guidance entitled The Streamlined Eviction Process - Criminal or Antisocial Behaviour Statutory Guidance for Social Landlords, introduced by the Housing (Scotland) Act 2014. Evidence was given by Katie Martin, a housing manager with the respondent, who swore in an affidavit that ACHA’s anti-social behaviour policy complied with the statutory guidance for social landlords. Only one paragraph of the affidavit, which Ms Martin adopted at proof, referred to the Guidance. 

It was submitted for the appellant that the sheriff was in error in finding that the respondent had complied with the Guidance. Ms Martin’s evidence at best only demonstrated the factors that the respondent took into account in terms of its own policy. No reference was made to the statutory guidance about these factors, thus there was no basis for the sheriff to find that the respondent was compliant. 

Counsel for the respondent submitted that the stated case made clear that the sheriff accepted the respondent had demonstrated compliance, and even if they had not this did not render the proceedings invalid or incompetent. Further, the appellant had not satisfied the onus to establish the irregularity on which the appeal proceeds rested, and therefore compliance with section 14 of the 2014 Act could be presumed. 

Satisfied on the evidence 

The opinion of the court was delivered by Sheriff Principal Murray. On whether it had been established that the respondent had complied with the Guidance, he said: “It is well recognised that such a finding is a matter for the sheriff who has heard the evidence at first instance. In this case the evidence was given by Ms Martin in her affidavit which she adopted and by her parole evidence. There is some force in the criticism that the affidavit does not directly address consideration of the guidance.” 

However, he went on to say: “We however reject the submission that the sheriff was not entitled to accept her oral evidence which was said to run contrary to and supplement the terms of her affidavit. Ms Martin’s evidence must be looked at as a whole. We accept from the sheriff’s narrative in the stated case that Ms Martin in her oral evidence confirmed that the respondent complied with the streamlined process.” 

Turning to the stated case, he said: “It is clear from the stated case that the sheriff was satisfied on the evidence that the respondent had considered the matters set out in the guidance and it had acted in accordance with the streamlined process. The evidence discussed in the stated case, to which no adjustment was proposed by the appellant, was sufficient for the making of the finding in fact.” 

Sheriff Principal Murray concluded: “This court is not entitled to interfere with finding in fact 18 based as it is on the sheriff’s assessment of the evidence, particularly in the context of an appeal by stated case in a summary cause action where there is no transcript of evidence.” 

For these reasons, the appeal was refused.  

In a postscript addressing the interaction between the 2014 Act Guidance and their interaction with Article 8 rights under the ECHR, Sheriff Principal Murray observed: “No appeal was taken on these aspects of the decision and we find no error in the sheriff’s findings on these matters. He properly considered the proportionality of the decision to grant an order for possession in the context of interference with the appellant’s Article 8 rights and his rights under the Equality Act 2010 after detailed argument. That offers further support for the view that the appellant’s argument that the respondent failed to have regard to the guidance is unmeritorious.”