Dollar tenants facing ‘catastrophic’ consequences if evicted win appeal against First-tier Tribunal eviction order

About this case:

• Citation:
  2023UT38
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff S G Collins

Caroline Manson and David Downie, the tenants of a property owned by Virginie and Iain Turner, argued that the FTS had failed to properly weigh relevant factors in determining that it was reasonable to issue an eviction order. In their evidence, they argued that they faced homelessness if evicted due to their circumstances.

The appeal was heard by Sheriff Simon Collins KC of the Upper Tribunal.

Adequate findings in fact

The parties entered into a private residential tenancy in respect of a property in Dollar on 19 March 2020. On 24 January 2022, the respondents served a notice to leave on the appellants. Before the First-tier Tribunal Mr Turner, who was due to leave his employment in Thailand, gave evidence that he and his wife intended to sell the property in order to purchase a property in his wife’s home country of France for their retirement.

In her evidence, Ms Manson stated that she was Mr Downie’s full-time carer, and that he was bi-polar and engaged in a stressful legal battle with the NHS. She spoke of difficulties experienced with trying to find alternative accommodation as supply was low and a lot of landlords did not entertain tenants who were not working and had pets, and expressed a concern that the family would become homeless if evicted.

On 14 March 2023 the FTS granted an order for the eviction of the appellants from the property, with enforcement of the order postponed until 14 July 2023. In their Notice of Appeal to the Upper Tribunal the appellants submitted that the FTS erred in law in deciding that it was reasonable to grant the order in that it failed to provide proper reasons and to make sufficient and adequate findings in fact. Additionally, it took into account irrelevant considerations and failed to properly assess and balance the interests of the appellants and the respondents bearing on whether it was reasonable to issue the eviction order.

In particular, the appellants drew attention to the fact that the FTS stated that it had “weighed the competing factors” but not stated what those were, and that it had only made thirteen findings in fact. The Tribunal had also not made reference to the respondent’s acceptance that he owned three other properties in France and that the appellants would be willing to remain as sitting tenants if the property was sold to another landlord.

Entitled to know

In his decision, Sheriff Collins said of the reasons provided by the FTS: “The FTS was required not only to identify the factors which it had taken into account, but also to explain why it had given more weight to those factors supporting the conclusion which it reached, relative to those which pointed the other way. Such an explanation did not need to be lengthy or elaborate. But a failure to undertake this exercise, or for it to be impossible to discern from what was written that it had been undertaken, would be to fail to provide adequate reasons. The parties are entitled to know why they won, or why they lost.”

He continued: “The first appellant’s evidence was that eviction would be, in all the circumstances, ‘catastrophic’ for them. The respondents’ evidence was that a refusal to grant the order would give rise to inconvenience and frustration on their part, rather than insurmountable difficulty or financial hardship. Accordingly there were clearly competing factors, and it was not obvious why, even assuming that the respondents had acted reasonably in seeking possession of the property, it was also objectively reasonable in all the circumstances to issue an eviction order.”

Turning to the second ground of appeal, the sheriff said: “Proper fact finding required the FTS to squarely confront and decide matters, and not skirt around them, whether out of sensitivity to the appellants or otherwise. In these circumstances the FTS observations are insufficient to cure the error of law resulting from its failure to make proper findings in fact in relation to the appellants’ evidence.”

On the appellants’ ability to find another property, he noted: “In the present case the FTS was of the view, presumably applying its knowledge of the state of the rented housing market within central Scotland, that would-be tenants who had good references and an increased deposit might sometimes be able to persuade landlords to lease property to them notwithstanding that they were in receipt of benefits and owned dogs. Even assuming that proposition is correct, however, it only has relevance to the appellants if findings were first made that they did in fact have good references (or could get them), and that they would be able to pay an increased deposit.”

He concluded: “The mere fact that the appellants had been able to secure a tenancy of the property in 2020 says nothing about the existence of either matter at the time when the FTS came to consider the present application three years later. Accordingly the FTS erred in law, either because it failed to make findings in fact sufficient to support this part of its reasoning, or because it had regard to factors which were not supported by the evidence and so irrelevant to the case before it.”

The appeal was therefore allowed, and the matter remitted to a differently constituted First-tier Tribunal to consider the application of new.