Address to the Scottish Association of
Law Centres (SALC) Annual Conference
- the substantive law the reasonableness defence, recent changes and relevant case law
A 'substantive defence' refers to a defence on the merits of the action. For example, the tenant does not owe the amount of rent claimed. With respect to substantive legal defences, advisors should establish firstly:
(1) history of the tenancy;
(2) reasons for rent arrears;
(3) client's financial circumstances;
(4) other personal circumstances;
(5) consequences of eviction; and
(6) realistic proposals for future payments.
In rent arrears cases substantive defences will typically include:
§ Defending the action as 'not reasonable' to evict on all of the facts. For Scottish secure tenants in arrears of rent, section 16 of the Housing (Scotland) Act 2001 requires the sheriff to ascertain whether it is 'reasonable to make the order'. This may require an evidential hearing (civil proof). Fixing a proof is straightforward in Glasgow, for example, but consider SCR 8.3 and the practice in Edinburgh: City of Edinburgh Council v. Forbes 2002 Hous LR 61 (refusal to assign proof on reasonableness - discussed below).
§Some rent not lawfully due (for example mutuality of contract principle in Scots law means landlord cannot insist on rent if landlord is in breach of contract - so where landlord has failed to carry out notified repairs needed it could be argued that some rent is not due (another way to argue for this is a counterclaim for compensation).
§ Has some arrears prescribed under the Prescription and Limitation (Scotland) Act 1973 as amended? If over 5 years old and not pursued then will be irrecoverable.
§ Is there a housing benefit appeal before the Social Security Tribunal? If so, may be unreasonable to proceed with eviction action while this is pending.
Some social landlords operate a practice whereby a diet of proof is discharged on the basis that the tenant enters into a repayment plan and 'consents' to decree in the event this agreement is broken. Typically such arrangements are incorporated into a Joint Minute. However, it worth noting that such tactics have been disapproved of by the English Court of Appeal because the court must be satisfied as to inter alia reasonableness. In Wandsworth LBC v. Fadayomi  1 WLR 1473;  3 All ER 474; 19 HLR 512 the Court of Appeal stated that consent orders have no place in public sector proceedings because the court must be satisfied that the appropriate grounds and conditions are made out.
Case law on reasonableness and rent arrears
Midlothian District Council v. Brown 1991 SLT (Sh Ct) 80 - Landlord must plead eviction is reasonable; no prejudice on the landlord as arrears were not increasing; not reasonable to evict.
A landlord made no averments (statements of fact in the summons) as to whether it was reasonable to grant decree for eviction, and indicated that they did not actually intend to evict the defender. Sheriff JJ Mitchell held that in the absence of an averment that it was reasonable for the court to grant an order for recovery of possession the action was incompetent and was dismissed: Gordon District Council v. Acutt 1991 SLT (Sh Ct) 78 was followed. The Sheriff noted that even "if the pursuers had had the intention of using the decree when it could competently be used, and could not have obtained direct payment from the D.S.S. of the arrears in question for any reason, I would still have refused decree. The sum in question was small and was not increasing. The ordinary remedies for debt do not include loss of a home and it is not easy in principle to see why this should be otherwise in the case of rent unless there is at the least a real likelihood that continued occupation will prejudice the landlord in some way, most obviously by the risk of current rent not being paid. Here there was no such risk. Woodspring District Council v. Taylor (1982) 4 H.L.R. 95 is in point".
Midlothian District Council v. Drummond 1991 SLT (Sh Ct) 67 - Onus of proof on landlord to show that it is reasonable to evict.
In Drummond the defender did not enter an appearance and the case was undefended. However, the Sheriff at first instance wanted to know some information about the tenancy history and how arrears had arisen. The pursuer could not provide this and the action was dismissed. The Sheriff Principal (O'Brien QC) held that the sheriff was entitled to dismiss the action, however, in the circumstances he allowed the cause to be remitted back to the sheriff to allow the Council an opportunity to produce information as to the tenant's rent record. The Sheriff Principal noted that "it seems to me that there must be some material to enable the court to affirm that it is reasonable to grant an order, and I do not think that it is any hardship on a landlord to say how long the tenancy has lasted, and over what period the arrears of rent have accumulated. Both are within the landlord's own knowledge. Neither is averred in the present case, and I can understand the sheriff's reluctance to grant the order when she did not know whether she was dealing with a bad tenant who was persistently in arrears with rent, or a tenant with a good record who had only recently fallen into arrears through some misfortune. Material for the exercise of the court's discretion may of course be available from other sources, e.g. from the tenant himself if, though not defending the action, he appears when the case is called or writes a letter to the court".
Gordon District Council v. Acutt 1991 SLT (Sh Ct) 78 - Landlord's duty to provide the court with sufficient information as to whether it is reasonable or not to grant an order for recovery; need to aver current rent arrears.
In Acutt, the landlord sought decree for eviction in a rent arrears case which was undefended. There was no indication that rent arrears were currently due, and no averments as to whether it was reasonable to grant decree. Sheriff A.L Stewart was minded to dismiss the action as incompetent unless the pursuer sought to amend the statement of claim (which he allowed). In a rent arrears case (equally applicable to Scottish Secure Tenants threatened with eviction on Ground 1, schedule 2, Housing (Scotland) Act 2001) the sheriff held that it was necessary to provide a statement as to current rent arrears: "If the fact that the tenant is in arrears is not averred in the statement of claim, then, in my opinion, an essential element is lacking from the statement of claim, the statement of claim fails to comply with the terms of rule 2, and the action is clearly incompetent in terms of rule 18 (4). As a matter of fair notice the statement of claim should say not only that there are arrears but should also state the amount of the arrears. The sheriff also held that the court was entitled to expect the landlord to aver and provide sufficient information about rent arrears in order for a decision on reasonableness to be made by the court.
Edinburgh District Council v. Stirling 1993 SCLR 587 - eviction proceedings not to be used solely to recover rent arrears.
In a group of three cases tenants arrears were between £65 and £297. The defender had applied for income support and arrears direct (direct deductions from IS to the pursuer). The sheriff dismissed the action, however, this decision was overturned on appeal. Significantly, Sheriff Principal Nicholson QC said that 'I am absolutely in no doubt that if a sheriff were satisfied on reasonable grounds that the true intention of the landlords in a particular case [was solely to recover the rent arrears] he would be entitled to refuse [an order] for recovery of possession as not being reasonable in the circumstances'.
Woodspring DC v. Taylor (1982) HLR 95 - not reasonable to evict where rent was now being paid by Housing Benefit and arrears reduced by arrears direct.
The Court of Appeal (for England & Wales) overturned the decision of a judge at first instance granting an eviction order. Lord Justice Waller held that no reasonable judge could have found it reasonable to grant an order when the defendants were now in receipt of benefits, and the then DHSS was now meeting rent plus £1 per week to arrears.
Second WRVS Housing Society v. Blair (1987) 19 HLR 104 - not reasonable to evict; failure of judge to consider availability of welfare benefits.
In Blair a judge at first instance granted decree for eviction where a tenant had accrued arrears after becoming mentally ill. He had spent his rent money on food. The English Court of Appeal overturned this decision because the judge has failed to consider the question of reasonableness and in particular the availability of benefits. For example, it was noted that rent could be paid direct to the landlord, and there other benefits the defendant might have been entitled to given his ill-health. Lord Justice Dillon said: 'It is well known that arrangements can be made with the DHSS when housing benefit is payable to see that the rent is paid direct to the landlord and I feel that is a matter which should have been taken into account'.
Perth and Kinross Council v. Roy 1999 Hous LR 10 - whether reasonable to grant decree - proof on question of reasonableness and cause thereafter continued (in terms of s.48(2) Housing (Scotland) Act 1987 - now s.16(1) Housing (Scotland) Act 2001) to give the defender a further chance (which was not taken up).
A proof was held in an eviction action for rent arrears of over £2,000. The defender had wrongly thought she was entitled to move out of her house due to minor disrepair. The house was found to be habitable. Housing benefit had stopped, however after the a proof over two days the sheriff gave the defender a chance to move back into the house and pay her rent. She didn't do so, and decree passed. Counsel for the defender sought to argue at appeal that the sheriff had failed to take into account relevant reasonableness factors - such as the effort to reinstate housing benefit and that arrears direct had been set up, paying off arrears between £2 and £3 per week. Counsel for the defender relied on cases including Blair and Taylor (cited above), however, the Sheriff Principal (Maguire QC) held that the sheriff had exercised his discretion properly. Indeed, the sheriff had even given the defender an extra chance after the proof (which is seldom done), but the defender had not co-operated.
City of Edinburgh Council v. Forbes 2002 Hous LR 65 - refusal of proof on averments bearing upon the reasonableness of making an order for recovery of possession.
In the case of Forbes decree passed in absence and was recalled by the defender's solicitor. Arrears at the minute for recall of decree hearing were £1,143. The pursuer moved for decree of new (de novo). The defender sought to defend the action upon the basis that it was not reasonable in all of the circumstances, including factors such as the health of the defender, personal crises, the defender was on benefit and had recently paid £25 to arrears. The defender moved for a proof to be assigned so that evidence could be led. The pursuer either admitted or did not challenge any of the facts put forward by the defender. The sheriff took the view that because there were no material facts in dispute he could proceed to determine the cause on the merits without the need for a proof. He granted decree of eviction. On appeal to Sheriff Principal Nicholson QC, it was held that the sheriff had been entitled to hold that the facts of the case were sufficiently admitted so as to determine the matter summarily. The Sheriff Principal noted that the test of reasonableness was not a fact in itself. Thus if the facts were sufficiently admitted the sheriff could determine the issue of reasonableness without evidence being led.
GLC commentary on Forbes and the 'Edinburgh approach'
Forbes illustrates a peculiar and regressive Edinburgh phenomenon which relies upon the co-dependent practice of Edinburgh City Council and Edinburgh Sheriff Court. For example, if Edinburgh City Council did not adopt the practice of admitting or not challenging a tenant's 'reasonableness' statements the court would find it more difficult to refuse proofs on reasonableness averments. Sheriff Principal Nicholson QC rightly points out that 'reasonableness' is not a disputed 'fact'. Rather, the issue of reasonableness is a legal test to be determined by the court on the evidence. Yet, it is respectfully submitted that the reasoning in Forbes contains certain legal flaws.
Firstly, Forbes proceeds upon the view that the 'facts of the cause' were sufficiently admitted. This is the lynch pin in the 'Edinburgh approach' to reasonableness. In reality a defender's agent will appear at a minute for recall hearing (and/or first calling) and spend a minute or two stating one or two pertinent facts. Under the new summary cause rules, those recalling decrees have three or four lines on a A4 sheet to state their defence.
Where is the 'fair and public hearing' (Article 6, Human Rights Act 1998) in allowing a defender a minute or two in a busy heritable court to present their case on matters relating to reasonableness? How can the facts of a case be sufficiently admitted when it is difficult to imagine that anyone could set out proper facts at all at such a brief procedural hearing?
In Barclay v. Hannah 1947 SC 245; 1947 SLT 235 the Lord President Cooper considered the question of reasonableness and eviction in the context of the Rent and Mortgage Interest Restrictions (Amendment) Act 1933. He found that 'The Act of 1933 (23 & 24 Geo. V. cap. 32), section 3, begins with a primary prohibition addressed to the Court to the effect that no order for the recovery of possession shall be made unless the Court considers it reasonable to make such an order. Although couched in negative form, that is an imperative direction to the Court to exercise a judicial function on the question of reasonableness, and I can find nothing in what follows to take that duty away from the Court'. In finding that both the sheriff and the sheriff principal had erred in law in treated the reasonableness defence as irrelevant, the Lord President stated: 'I consider that the Sheriff's judgement cannot stand, and that the case must go back to the Court below for proof of the averments bearing upon the reasonableness of making the order, unless the parties, who do not seem to be very far apart, are able to agree on a minute of admission and renunciation of probation'.
Significantly, in the Barclay v. Hannah case the First Division expected a proof on reasonableness, unless the parties were able to agree on 'a minute of admission and renunciation of probation'. In the case of City of Edinburgh Council v. Forbes what we find is that SCR 18(9) (the new equivalent rule is now SCR 8.3(3)(d)) being used a very unsophisticated 'minute of admission' device. Yet, this device is incapable of providing a 'fair and public hearing' in eviction cases. Undoubtedly, the new SCR 8.3(3)(d) works well for straight-forward relatively simple payment of money actions - where the key issue is: do you owe this money? - however, it is grossly inappropriate to use this rule to give '60 second hearings' for a tenant and children facing the loss of the roof over their heads.
Besides working for the possible reform and clarification of rule SCR
8.3(3)(d) in the context of eviction cases what can tenants in the
Lothian and Borders do? Forbes is binding in the Sheriffdom of
Lothian and Borders, and is therefore not easy to overcome (with a
leapfrog appeal). Challenging the practice and policy of
Edinburgh City Council to admit and not challenge reasonableness
averments could be considered. For example, a tenant recalling
a decree (or at a first hearing) who only has a defence on
reasonableness could request an adjournment of eviction proceedings
in order to await the outcome of a petition for judicial review.
The author has successfully used this approach on behalf of
traditional travelling people in Scotland facing eviction in the
sheriff court: see further the decision of the English Court of
Appeal in Avon CC v. Buscott  QB 656;  2 WLR 788; 
1 All ER 841; and (1988) 20 HLR 385. Any petition
would need to set forth a cogent case on traditional judicial review
grounds, and would no doubt seek to rely on the Human Rights Act 1998
(arguing the Council had a practice and policy which was unlawful
having regard to its effect under reference to Articles 6, 8 and 1 of
the First Protocol).
Court representation checklist
What the court can do at the first calling
 Grant decree for possession - under SCR 7.1. Note that where the tenant does not lodge his response to the summons with the court before the return date, decree may pass against him or her in terms of SCR 7.1 (7), without the case calling in court.
 Grant decree for possession - under SCR 8.3(3)(d) but only if the court is satisfied the facts of the case are sufficiently agreed; or under SCR 8.3(3)(c) on a point of law.
 Adjourn (continue) proceedings - under section 16(1), Housing (Scotland) Act 2001 (SST); section 20(1), Housing (Scotland) Act 1988 (Assured tenancy); section 12(1), Rent (Scotland) Act 1984 (Protected tenancy). Either to a fixed date or without fixed date (sist) with or without conditions.
 Continue to another date - under SCR 8.2 (3) - in practice potentially useful for common law tenancy.
 Fix a proof - under SCR 8.3(3)(d) (where satisfied that the claim/defence may have a sound basis in law and that the dispute depends upon resolution of disputed issues of fact).
 Remit to Ordinary Roll under section 37(2) of the Sheriff Courts (Scotland) Act 1971 (for example, to enable a debate to be held).
 Dismiss the claim under SCR 7.1(2) - where undefended but pursuer does not minute for decree on second day before calling date.
 Dismiss the claim under SCR 8.3(3)(d) but only if the court is satisfied the facts of the case are sufficiently agreed; or under SCR 8.3(3)(c) on a point of law.