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Human Rights and Housing Law

Hastie Stable's Michael Upton has successfully opposed an interim interdict in the Inner House in the long-running case of South Lanarkshire Council v. McKenna. 

The housing authority have been seeking recovery of possession from a tenant under a Short Scottish Secure Tenancy.  After two reported debates in the Sheriff Court, in both of which the Sheriff sustained the arguments for Mr. Upton clients, the housing authority (2010 Hous. L.R. 36 & 82)  -  followed by the tenant's unsuccessful attempt to have the Inner House declare the relevant provision of the Housing (Scotland) Act 2001 incompatible with art. 8 of the European Convention on Human Rights (2013 S.C. 212)  -  the case was remitted back to the Sheriff Principal at Glasgow.

At the end of 2013 the Sheriff Principal sustained Mr. Upton's opposition to an appeal by the tenant.  He held the Sheriff to have been correct, in holding that by statute an S.S.S.T. has a term of six months  -  which meant that the Council's notice to quit had been duly served.  He rejected the tenant's arguments that an S.S.S.T. is necessarily 'probationary', so that at its end the tenant could only be removed if she had in some respect been an unsatisfactory tenant; he agreed with the Council that at the end of the six-month term it had an absolute right to recover possession (2014 S.L.T. (Sh Ct) 51). 

Thereafter the Sheriff Principal refused the tenant's motion to certify the cause as suitable for appeal to the Inner House, and granted decree for the ejection of the tenant.  She then brought a petition for judicial review, seeking to quash the Sheriff Principal's refusal to allow her to appeal.  In June 2014, in the Outer House Lord Brailsford agreed with Mr. Upton that the petition should be refused.

The tenant has now reclaimed to the Inner House.  The Council at the same time proceeded to fix a date for her ejection.  In response, the tenant moved the Inner House to grant interim interdict against her ejection.  On 26th August an Extra Division agreed with Mr. Upton that she did not have a prima-facie case for quashing the Sheriff Principal's refusal to allow her to appeal, and that in any event, given the level of demand by applicants for such housing on the Council's waiting list, the balance of convenience did not favour halting her ejection.