Domestic Abuse – Social Housing Tenancy Provisions: Statutory Guidance for Social Landlords

19. Streamlined Process for Recovery of Possession or Termination of a Tenant’s Interest in a Tenancy

19.1 Sections 16(2)(e) and 16(3ZA)(b) of the 2001 Act^[28] prescribe the streamlined process for recovery of possession or termination of a tenant’s interest in a tenancy for ground 15A cases where there has been a conviction for an offence relating to the abusive behaviour which is punishable by imprisonment. This is similar to the court powers at section 16(2)(aa) of the 2001 Act (Streamlined eviction process - criminal or antisocial behaviour: statutory guidance for social landlords ). Section 16 is shown in a consolidated way at Annex A.

19.2 The streamlined process cannot be used where the conviction for domestic abuse is unrelated to the abusive behaviour against the victim/survivor (person P) which is being relied upon by the social landlord as the basis for seeking an order under ground 15A.

19.3 For streamlined actions, there is no requirement for the court to consider whether it is reasonable to make an order as long as a notice of proceedings under section 14(2) of that Act has been served before the specified day.

19.4 An ‘offence punishable by imprisonment’ means that the offence carries imprisonment as a possible penalty but does not require that a custodial sentence was imposed as the penalty in the particular case. All common law offences such as breach of the peace and assault are punishable by imprisonment, as are the offences of ‘threatening or abusive behaviour’ under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010^[29] and the domestic abuse offence under section 1 of the Domestic Abuse (Scotland) Act 2018.^[30]

19.5 The social landlord must have served the abusive tenant with a notice of proceedings before the specified day which is 12 months after:

a) the day on which the person was convicted of the offence forming the ground for recovery of possession or termination of a joint tenant’s interest in the tenancy; or

b) where that conviction was appealed, the day on which the appeal is dismissed or abandoned.

19.6 In summary, this means that (in a case where the conditions in ground 15A are met) where a court has convicted a tenant of an offence relating to the abusive behaviour which is punishable by imprisonment, and the social landlord has served a notice of proceedings on the tenant under section 14(2) within 12 months of the conviction or the dismissal or abandonment of an appeal, the court must make an order for recovery of possession of the house or an order for terminating a tenant’s interest in a house, as appropriate, without considering whether it is reasonable to do so.

19.7 Section 16(3A) of the 2001 Act provides that the requirement placed on the court to order recovery of possession or termination of interest does not override any other rights that a tenant has. This includes any arguments regarding proportionality in terms of Article 8 of the European Convention on Human Rights (‘right to respect for private and family life’)^[31] and section 6(1) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.

Streamlined process not satisfied

19.8 If the tenant has not been convicted of a relevant offence, the streamlined process for recovery of possession or termination of a tenant’s interest in a tenancy at sections 16(2)(e) and 16(3ZA)(b) of the 2001 Act cannot be used and the court would instead need to consider the reasonableness of granting the order (see section 7 of this guidance).

Purpose and use of the streamlined process for recovery of possession or termination of a joint tenant’s interest in a tenancy

19.9 Using the streamlined process can support social landlords to take action in some cases of domestic abuse more quickly to help reduce the harm that is caused to victim/survivors and their children.

19.10 The streamlined process is intended to help to speed up recovery of possession or termination of a joint tenant’s interest in the house, as appropriate, where:

• an offence relating to the domestic abuse has already been proven in court; and
• in the case of a sole tenancy, the social landlord considers that recovery of possession of the house is appropriate so that the social landlord can enter into a tenancy with the victim/survivor instead; or
• in the case of a joint tenancy to bring the abusive tenant’s interest in the tenancy to an end.

19.11 The streamlined process for recovery of possession or termination of a tenant’s interest in a tenancy requires a notice of proceedings to be served before the first anniversary of the date of the conviction for the domestic abuse related offence, or where that conviction was appealed, the day on which the appeal was dismissed or abandoned. In considering whether to serve such a notice in that timescale, the social landlord should consider the content of section 7 of this guidance. Social landlords will also want to ensure that their Domestic Abuse Policy covers this measure.

19.12 In those domestic abuse cases where the notice of proceedings has not been served in the required timescale, or where the social landlord does not consider the streamlined process is appropriate, they can instead rely on section 16(2)(d) (for recovery of possession) or section 16(3ZA)(a) (for termination of interest) of the 2001 Act^[32] (paragraphs 17.6 to 17.11 of this guidance explain why it is not appropriate to combine ground 15A with any other ground).

19.13 Sections 16(2)(d)(iii) and 16(3ZA)(a)(ii) of the 2001 Act mean that a statutory test of reasonableness will however apply to those paragraph 15A cases where the streamlined process has not been asked for by the social landlord in the statement of claim section of the court writ when raising court proceedings.

Verifying information

19.14 In cases where a social landlord is considering taking court action to recover possession or terminate a tenant’s interest in a tenancy following information about a relevant criminal conviction, the social landlord will wish to take legal advice to identify whether and how ground 15A of schedule 2 for raising an action under the streamlined process can be satisfied.

19.15 Consideration of how the ground can be satisfied will include the evidence of the criminal conviction and whether the conviction was for the abusive behaviour referred to in paragraph 15A(1) of schedule 2 of the 2001 Act.

19.16 Section 4 of the Streamlined eviction process - criminal or antisocial behaviour: statutory guidance for social landlords sets out the steps social landlords should follow for verifying information before deciding whether to use the streamlined eviction process. This guidance also applies to verifying information for the streamlined process for recovery of possession or termination of a tenant’s interest in a tenancy on the new ground 15A, with the exception of the reference at paragraph 4.2 to using the house for immoral or illegal purposes, and the reference at section 4.7 to the option of taking eviction action on combined grounds which include rent arrears.

19.17 Action on combined grounds is not appropriate when using the streamlined process for recovery of possession or termination of a tenant’s interest in a tenancy (see sections 17.6 to 17.11 of this guidance).

19.18 When deciding whether taking streamlined eviction action for ground 15A cases is proportionate, social landlords should consider, in particular, the impact of the abusive behaviour on, and future risk to, the victim/survivor with the safety of the victim and any children being paramount. Social landlords should also consider the impact that the action may have on the defender and any children living in the property. These are just examples of factors to be considered and landlords will require to consider all of the circumstances in each individual case.

Policy and practice

19.19 Decisions on using the streamlined eviction process should be consistent, balanced and transparent. Social landlords will therefore want to ensure that the introduction and use of the streamlined process and the factors that will be considered, are referred to in its Tenancy Management and Domestic Abuse policies and procedures, and in any information they provide on dealing with domestic abuse.

Raising court proceedings

19.20 Guidance is provided for social landlords at sections 6.1 to 6.2 of the Streamlined eviction process - criminal or antisocial behaviour: statutory guidance for social landlords. Paragraph 19.17 above also explains why it is not appropriate to combine ground 15A actions with actions on any other ground.

Court action

19.21 The streamlined eviction process removes the statutory test of reasonableness. The court must grant an eviction order where it is satisfied that:

• the landlord has a ground for recovery of possession set out in paragraph 15A of schedule 2 to the 2001 Act; and
• the notice of proceedings was served on the tenant before the first anniversary of either, the date of the conviction, or where that conviction was appealed, the date on which the appeal was dismissed or abandoned.

19.22 If tenants or their representatives challenge the proportionality of a streamlined eviction action on human rights grounds, then the court may consider the reasons for such a challenge before reaching a decision. Social landlords may need to give evidence on the reasons for the eviction action if such a challenge is raised and the sheriff decides that the challenge has sufficient basis to be considered.

19.23 The court is bound to act in a way which is compliant with the United Nations Convention on the Rights of the Child^[33] and so the court will have to consider whether there are any children who may be affected by the making of an order whose views should be taken into consideration.