Upper Tribunal quashes eviction order granted to Edinburgh landlord who wanted to move back into family home

About this case:

• Citation:
  2024UT38
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff George Jamieson

Tenants Campbell Taylor and Louise Drysdale appealed after an application was made by landlord Nicholas Hocking on the grounds that he intended to live in the property and that the tenants were in breach of their tenancy agreement. The decision of the FTS was challenged on the grounds of inadequacy of reasoning and incompatibility with the Human Rights Act 1998.

The appeal was heard by Sheriff George Jamieson of the Upper Tribunal. Representation for the appellants was provided by DWJ Law, solicitors, and for the respondent by TC Young, solicitors.

Absence of reasons

A private residential tenancy was entered into by the parties in February 2019, the terms of which provided that the rent of £1500 per month was to be paid on the first day of each month. The let property was previously the home of the landlord’s parents, and in evidence he stated that he wished to live in the property again because it was a more suitable property for visits from his sister, for whom he had caring responsibilities due to her enduring health conditions.

In evidence it was stated that the rent had not been paid timeously since March 2019, which the tenants attributed to delays in payment of Universal Credit, although it had been paid later each month. They told the FTS that they had tried to arrange for the UC payments to go directly to the landlord but had been informed that this would require an application by the landlord, which he was not prepared to do.

It was found in fact and law by the FTS that the landlord did intend to live in the property and that the tenants were in breach of the tenancy agreement. In considering whether it was reasonable to evict the tenants, it found it was not reasonable in respect of the rent delays but that it was reasonable in respect of eviction ground 4. The FTS did not provide any specific reason why the balancing exercise favoured the issue of an eviction order, only that it had considered the evidence and submissions provided by the parties.

On appeal to the Upper Tribunal the tenants challenged the adequacy of the FTS’s reasons for concluding that it was reasonable to grant an eviction order. While reasons could be briefly stated, it had not explained why the respondent’s position was preferred to that of the appellants and in the absence of reasons it was not possible to say that the FTS had correctly considered the whole circumstances.

It was further submitted that the decision of the FTS was incompatible with Article 1 Protocol 1 ECHR. While there was an overlap between reasonableness and proportionality, the FTS had not carried out a separate assessment of proportionality and ought to have done so.

Disproportionate interference

In his decision, Sheriff Jamieson began: “While the FTS identified the correct approach to assessing reasonableness, and the factors to be weighed in the balance, and was careful to exclude certain considerations as not being relevant to that exercise, ultimately it gave no reason for preferring the circumstances of the Respondent over those of the Appellants in either of its two Decisions.”

He continued: “I am conscious of the need to exercise appellate restraint, but absent this part of the reasoning process in the Decisions of the FTS, it is simply not possible for the Appellants to understand why the matter was decided as it was on this ‘principal important controversial issue’.”

Addressing the human rights argument, the sheriff said: “I agree with the Appellants’ submission that the FTS’s inadequately reasoned decision on reasonableness amounted to a disproportionate interference with the Appellants’ article 8 right to respect for their home. As no adequate reasons were given for the interference, the ‘losing party’ cannot determine whether, on a fair balance, the benefits of achieving the aim of evicting them outweighed the disbenefits resulting from the restriction of their right to respect for their home.”

He concluded: “Two things might be done in future cases potentially to avoid the need for an appeal where the only issue is that the FTS has provided no reasons for preferring the interests of one party over the other. First, the party aggrieved by the decision might consider requesting the FTS to provide supplementary reasons for the exercise of its discretion if those reasons are missing from the original decision. Secondly, the UTS might, on an appeal to it on such a ground, require the FTS to provide reasons for the decision on the proceedings before the FTS.”

The appeal was therefore allowed, and the matter remitted to a differently constituted First-tier Tribunal for reconsideration.