4. Steps to be Taken Before Using the Streamlined Eviction Process
4.1 In cases where a landlord is considering taking eviction action following information about a relevant criminal conviction, the landlord will wish to take legal advice to identify whether and how the ground required for raising an eviction action under the streamlined eviction process can be satisfied.
4.2 Consideration of how the ground can be satisfied will include the evidence of the criminal conviction available and whether the criminal offence is one which concerns using the house for immoral or illegal purposes or carried imprisonment as a possible penalty. A prison sentence does not need to have been imposed. For example, a community payback order may be given by the criminal court as an alternative to a prison sentence.
4.3 Landlords could consider obtaining an extract conviction from the court as evidence of the conviction. Where an extract conviction is available, this should be lodged as part of the sheriff court application if the case is taken to court.
4.4 An extract conviction cannot however be issued by the court until either:
- the expiry of the appeal period where no appeal is lodged; or
- the disposal of any appeal lodged.
4.5 The court will let the landlord know if they are unable to issue an extract conviction and the reasons for this. Landlords are however not prevented from raising eviction action under ground 2 of schedule 2 of the 2001 Act, including streamlined eviction action, simply because an extract conviction cannot be provided by the court.
4.6 Information on the current procedures for obtaining extract convictions can be obtained from the Scottish Courts and Tribunals Service.
4.7 If eviction action is being taken under ground 2 of schedule 2 of the 2001 Act only, pre action requirements do not have to be satisfied. If landlords are taking action on combined grounds which include rent arrears, pre action requirements will have to be satisfied.
Other Factors Which Landlords Should Consider
4.8 There are a range of factors which landlords should consider in deciding whether raising eviction action using the streamlined eviction process is both appropriate and proportionate. Some examples of this could include:
- the nature and seriousness of the offence, including any recurring nature of convictions or cumulative effect of several incidents, or the potential seriousness of a one off offence;
- who has been convicted of the offence and their connection to the property;
- where the offence was committed and the connection to the social housing tenancy;
- whether, and to what extent the offence has affected other household members, neighbours or others in the community, including the impact on neighbours and communities over time and the impact on the stability of the community;
- what action, if any, the person convicted of the offence is taking to make positive change;
- impact of eviction on household members;
- other steps taken/which could be taken by the landlord or partner agencies to address the antisocial or criminal behaviour.
4.9 In some situations it is likely to be very difficult to demonstrate to the court that eviction action is proportionate. An example of this could be where a criminal conviction is given for an isolated offence such as possession of a small amount of illegal drugs and the behaviour of the tenant has caused no harm to neighbours or others in the community. Another example could be where a person has been convicted of a breach of the peace that had little local impact. The nature and seriousness of the offence should be considered, along with any other relevant factors or circumstances.
The Nature and Seriousness of the Criminal Offence
4.10 The type of criminal convictions that allow use of the streamlined eviction process are only those for offences ‘punishable by imprisonment committed in, or in the locality of, the house’. There are a range of serious criminal offences punishable by imprisonment which could be committed in social housing or in the locality and which may have a serious impact on others, including neighbours or others in the community. Some examples of this could include: breach of an ASBO, closure order or dispersal order, threatening and abusive behaviour, murder, rape, other violent offences, offences related to domestic abuse, offences related to the use of offensive weapons, and serious drug related offences.
4.11 There are however no specific offences where the landlord should invariably seek to use the streamlined eviction process. The nature and severity of the offence is only one of the factors which landlords should consider as part of their assessment of whether eviction action using this process is appropriate and proportionate.
Who Has Been Convicted and their Connection to the Property
4.12 In some cases, it may for example, be a visitor to the house, an abusive partner/ex-partner, or someone who lives at the property from time to time who has been given a criminal conviction. In such cases landlords may have limited information about the convicted person’s connection to the property and will be investigating this and determining what impact the behaviour leading to the conviction has had on neighbours and the community. There will be situations where others, including neighbours or members of the community, are afraid to speak out. In other cases, the tenant may be unable, despite their best efforts, to prevent a person with a criminal conviction from returning to the property where, for example, the tenant fears for their own safety. When considering this type of case, landlords may wish to consider factors such as:
- how frequently the person visits or lives in the property;
- any action the tenant is taking to stop the person returning to the property;
- whether it is reasonable in the circumstances for the tenant to try to prevent the person returning to the property.
Where the Offence was Committed
4.13 The streamlined eviction process can only be used where the criminal conviction in question is related to the social housing tenancy. The criminal conviction must either be committed in the house or committed in the locality of the house. Landlords will already be used to exercising their judgement when defining ‘locality’ and will need to make a decision based on the circumstances of the individual case. Where the criminal offence was committed elsewhere, landlords cannot use the streamlined eviction process, as the ground for raising eviction proceedings at paragraph 2 of schedule 2 of the 2001 Act will not be met. Landlords will need to use other grounds to proceed with eviction action.
Whether and To What Extent the Offence has Affected Household Members, Neighbours or Others in the Community
4.14 Eviction action under the new streamlined eviction process should only be considered where there is evidence that the behaviour leading to the conviction has had, or is likely to have had, a serious impact on other household members, neighbours or others in the community. This could, for example, include domestic abuse towards a partner/ex-partner, threatening and abusive behaviour towards neighbours or significant disruption to their lives.
4.15 Sustainable and secure housing is a key factor in preventing re-offending. Landlords have a role to play in helping people to sustain tenancies and prevent re-offending. There will be situations when the person who has received a conviction has changed their behaviour. Some examples of this could be:
- the behaviour has stopped, for example there have been no repeat offences, convictions, disturbances or complaints;
- engagement in training/employment;
- participating in a rehabilitation programme for drug/alcohol dependency or treatment for mental health issues;
- regular and meaningful engagement with support services to change behaviour in a positive way.
These examples may indicate positive change and landlords should consider the impact that eviction action may have on preventing ongoing positive change and the potential for re‑offending in such cases. Landlords will however also want to be satisfied that they consider any positive change in behaviour is sufficient and is likely to be maintained in the long term.
Impact of Eviction on Household Members
4.16 As with all eviction action, the impact on the other members of the household should also be considered. Landlords should ensure that communication with other relevant services has taken place to establish potential benefits and/or risks to other household members. This should however be balanced against the impact of the behaviour on the wellbeing of neighbours and the local community.
Other Steps Taken/Which Could be Taken to Address the Antisocial or Criminal Behaviour
4.17 In some situations, other measures may be more appropriate to address the impact of the behaviour on others, such as a short Scottish secure tenancy with support, other housing management procedures, or joint working with partner agencies. Landlords will also need to carefully assess what other steps have been taken, or could be taken to address the behaviour when balancing the rights of tenants and their household against those of neighbours and the wider community.
Policy and Practice
4.18 Decisions on using the streamlined eviction process should be consistent, balanced and transparent, therefore it is suggested that landlords identify factors they will consider. Landlords will also 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 Antisocial Behaviour policies and procedures, and in any information they provide on dealing with antisocial behaviour.
Notifying Tenants of the Landlord’s Decision to Take Eviction Action
4.19 Landlords should ensure that they communicate clearly with their tenants. When legal action is to be taken, it is particularly important that the tenant concerned is notified of:
- the action to be taken and what will happen;
- the timescales for the action;
- why this action has been taken, including reference to the legislation and the tenancy agreement;
- who they can contact for advice and assistance, for example. Shelter Scotland, Citizens Advice and getting independent legal advice.
4.20 A tenant who disagrees with a decision taken by the landlord to raise court proceedings could seek judicial review of the landlord’s decision to seek a court order, and/or defend the repossession action.