specialist money advice services
at govan law centre









 

fields of money advice practice

     contents

[1]  Eviction 
[2]  Mortgage repossession
[3]  Consumer credit law
[4]  Diligence and defender debt
[5]  Fuel poverty
[6]  Income maximization: benefits 
[7]  Income maximization: compensation
[8]  Income maximization: employment law
[9]  Legal education and prevention

 

[1] Eviction   |back|

The bulk of Govan Law Centre's (GLC) service within this field consists of legal representation in eviction actions raised by RSLs (Registered Social Landlords - housing associations under the Housing (Scotland) Act 2001) and private sector landlords.  From 7 March 2003, the GHA took over some 82,000 Glasgow City Council houses. Over 95% of our eviction cases relate to arrears of rent and service charges. 

A typical case is where the tenant presents with a summons.  Under the new (from 10 June 2002) summary cause rules of court a defender must return a response form in order for the case to call in court at a first calling.  Some advice agencies will advise clients to complete a time to pay direction.  However, this results in an installment decree being granted.  This can place the tenant in a very weak position as (a) it is possible for decree to be granted for eviction and payment, so if the client misses 3 payments they can be evicted or (b) the time to pay can be used to say that the tenant has already conceded the matter (i.e. admitted liability).  Our practice is to arrange for the case to call at court and have the cause continued for payments to be made or other matters to be dealt with (such as backdated housing benefit), failing which state a defence. 

Our services include defending evictions before the sheriff, appeals to the Sheriff Principal; and appeals to the Inner House of the Court of Session (we have on-going appeal cases).  If a case is continued in court we may have anything from 3 to 6 appearances in court before we can sist the cause (freeze).  GLC conducted the hostel eviction test case of Conway v. Glasgow City Council 1999 SCLR (Sh.Ct.) 248; 1059 and 1999 SLT 102 (Inner House of the Court of Session) providing the right for a hostel occupier not to evicted without reasonable notice in law.  We always look for novel defences to help our client base: for example the GLC case of Govan Housing Association -v- Thomas Kane (Sheriff Johnston, Glasgow Sheriff Court, 6 July 2001) resulted in many of our RSL evictions cases being dismissed as incompetent, and had a knock-on effect on RSL eviction practice across Scotland.

A major part of our eviction work is minutes for recall of decree.  This is where decree has been granted, and notice of ejection has been given.  In such cases we need to complete an application to court and arrange for urgent service of same on the pursuer.  We then represent at the recall hearing, and in terms of recent decision of the Sheriff Principal of Glasgow, state a defence.  We also undertake ordinary cause eviction work - i.e. where the landlord has a payment crave for over £1,500.  This is procedurally more complicated and onerous.

Finally, we undertake prevention of evictions of homeless persons.  Such cases can be very complicated and involve a petition for judicial review in the Court of Session. In a significant proportion of eviction cases we can counterclaim against the landlord's contractual failures (typically failure to repair); or using the mutuality of contract principle in law, claim that a proportion of rent is not lawfully due.

 

[2]  Preventing mortgage repossession   |back|

We undertake a significant volume of this work.  Where a calling-up notice is served we can raise a summary application (by way of Initial Writ) at the Sheriff Court.  We have such cases on-going at present in G51. The court proceeds in a similar way to an ordinary cause action and can time consuming.

In most cases, debtors contact us after the lender has raised repossession proceedings.  In such cases we draft, lodge and warrant a section 2 minute. Typically we will have anything from 21 days to a couple of days to do so (given the time limits here). We then formally serve this on the bank and its legal agents.  The case then calls for a procedural hearing.  The pursuer will get a chance to lodge answers to our minute, there will be an adjustment period and if the matter cannot be agreed (perhaps in one third of cases) a full hearing will be fixed.  GLC will conduct the full hearing which proceeds like a civil proof. 

Section 2 cases can be onerous and result in ordinary cause actions being continued for around 6 months at a time.  We need to appear in the ordinary court at continued callings, and fom time to time oppose motions to revoke section 2 orders. 

 

[3] Consumer credit law   |back|

GLC makes use of s.129 Consumer Credit Act 1974 time orders.  We can use this procedure to prevent a creditor repossessing a debtor's house on a second secured loan where decree was granted typically some time ago (and the Mortgage Rights Act does not apply).  There are many debtors in Scotland who have had decree pass against them for such debts.  In practice they enter into repayment plans (often with the help of money advice agencies) but when these plans breakdown or are not acceptable to the creditor, the creditor can proceed to repossess the debtor's house.  We can prevent this using s.129 and have undertaken referrals from several Glasgow CABx.

GLC also undertake complicated disputes involving linked credit purchase agreements, hire purchase agreements, where creditors are seeking to enforce CCA regulated agreements.

 

[4] Diligence and defender debt   |back|

Until the Debt Arrangement & Attachment (Scotland) Act 2002, GLC undertook 'defender poinding' work (recall, restriction, unduly harsh in court), including preventing threatened poindings and warrant sales.  We also deal with wage and bank arrestment cases and actions of forthcoming.  We expect to defend and resist exceptional attachment orders on behalf of G51 clients.  We note that the 2002 Act excludes civil legal aid for this work - although it provides a right of appeal to the Sheriff Principal (to which legal aid is excluded).  This is then an area of likely unmet need.  GLC will deal with G51 cases and will look to challenge the relevant section of the 2002 Act as ultra vires of the Scotland Act 1998 and in breach of Art.6, Human Rights Act 1998 (which if successful could assist in this field).

Where clients are taken to court for debts and they have a dispute we will defend court actions (and counterclaim) if possible.  GLC only deals with cases with a legal content, or serious and complicated debt cases.  We undertake sequestration for clients where this is a last resort and appropriate.

 

[5]  Fuel poverty   |back|  

This is a major issue in Glasgow.  Many clients on benefits reside in accommodation with inadequate (a) wall insulation (typically with U-values 3 or 4 times worse than current standards), (b) heating systems (may have just a 3 bar fire in the living room) and (c) ventilation (simply opening windows can exacerbate condensation dampness).  Assuming the GHA delivers its promised repair programme, it may nevertheless take many years for ex-Council stock to be brought up to a decent standard.  We can pursue major repair cases using both traditional court remedies (at common law and in terms of statute law); and also in terms of court-based remedies under the Environmental Protection Act (EPA) 1990.  GLC has pioneered EPA remedies are clarified the extent of the remedy in Scotland thought its case law (i.e. for dampness cases arising from structural inadequacies: Robb v. Dundee City Council).  GLC has seen off attempts to argue that vulnerable tenants in Glasgow should be expected to spend up to £20 per week on fuel costs: see for example Mary Galloway v. City of Glasgow Council 2001 Hous LR 59.

 

[6]  Income maximization: benefits   |back|

GLC undertakes complicated benefit appeals at the social security tribunal involving alleged overpayments of benefit, and disability.  We also undertake complicated housing benefit appeals (now to the tribunal).  GLC has appeal cases before the Social Security Commissioners in Edinburgh and also undertakes (and has) benefit cases before the Inner House of the Court of Session.  We also undertake test case work of potential benefit to Glasgow citizens generally.  For example we are currently challenging the mortgage interest social security regulations in terms of the Human Rights Act 1998.  These regulations require the claimant to wait 39 weeks before any help is provided (or 8 weeks with no help, half interest for 16 weeks, and thereafter 'full' assistance at 24 weeks: regulations for older mortgages).

 

[7]  Income maximization: compensation   |back|

Govan Law Centre has a holistic philosophy and approach to social welfare law - we look at all legal angles.  Where possible we will maximize a client's income whether that is through a compensation claim connected to a repairs case (e.g. client has lost furniture due to mould and dampness or water penetration or flooding) or a reparation case.  We are currently pioneering with Strathclyde University architects a legal challenge to pursue landlords for causing childhood asthma (typically amongst the poorest of households in Glasgow City by exposing children to damp housing conditions with an increased prevalence of dust mites and toxic mould spores, which sensitizes children to asthma).  This has never been done before in the UK, and involves state of the art technology, site and immunological sampling and assays.  We also undertake criminal injuries compensation and appeals for G51 clients - and have obtained awards of up to £50,000 recently.

 

[8]  Income maximization: employment law   |back|

GLC undertakes free representation at the Employment Tribunal and Employment Appeal Tribunal, as well as appeals to the Court of Session.  We undertake a volume of cases involving unpaid holiday pay as well as unfair dismissal and sex and disability discrimination claims.  Usually we can obtain a compensatory award, but sometimes we can obtain reinstatement.  We appropriate GLC can secure an undertaking to provide a proper references etc., which can be vital in securing new employment.

 

[9]  Legal education and prevention   |back|

GLC is a major provider of legal education in Glasgow. We provide in-house training for organization such as Glasgow City Council social work receiving staff. We recently delivered a specialist package of training to Edinburgh City Council's money advice department, and voluntary sector money advisors.  We provide free or low cost conferences and workshops on a range of money advice subjects.  These events are held in Govan and in central Glasgow.   All G51 residents can come to our events for free - and they regularly do so.

Govan Law Centre also provides for free (and without any dedicated funding) this website.  Here advisors can obtain access to money advice related case law, a range of legal advice pages, find out about developments in mortgage rights, eviction law or homelessness law, download court and tribunal application forms, and more.

This site has links/contact details for all free money advice agencies in the City (and indeed Scotland, England, Wales, Northern Ireland and Ireland). Govanlc.com has around 25,000 unique visitors each year, and has on-line translation facilities for up to 40 languages; full contact details are provided in 5 languages on-site, together with a geographical address map.