Scottish Sheriff Court Decisions

DUNDEE, MARCH 2004

The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

1. The Pursuers were formerly known as Ormiston People's Housing Association Limited and are incorporated under the Industrial and Provident Societies Act 1965. They have a place of business at The Square, Ormiston Crescent, Dundee, DD4 0UD.
2. The Defender lives at 16 Torwood Place, Ormiston Crescent, Dundee, DD4 0UD in a house rented from the Pursuers as a Scottish secure tenancy. She has occupied this house for about 11 years.
3. The Defender is a single parent aged 37 and has a 14-year-old daughter and a 19-year-old son who live with her. Her daughter suffers from a learning disability though she attends the local school and walks to and from there unaccompanied.
4. The Defender herself suffers from epilepsy. She has been so affected since she was 21. While her epilepsy does not take the form of grand mal seizures her face is affected by spasms several times a year. The Defender takes medication for this condition.
5. The Defender is employed as a playworker. She required a brain operation in July 1999 and was off work for 4 months. In April 2003 the Defender required to give up work because of childcare difficulties. The Defender was able to resume work in January 2004.
6. In July 1999 prior to her hospitalisation the Defender's rent arrears stood at £511.10. After the spell in hospital and convalescing the Defender's rent arrears rose to around £1,500 but were reduced by around £1,000 when a backdated housing benefit payment was made.
7. In October 2001 the Defender's rent arrears stood at £1,197.04. Housing benefit had been withdrawn and the Defender was being charged full rent of £59.05 per week. By January 2002 rent arrears were £1,070.03 following an award of Housing Benefit from 22 October 2001 where the Defender was to pay a net rent of £7.72 per week.
8. The Defender was being paid monthly and made 4 payments towards rent and arrears of £71 per month between January and April 2002. After the withdrawal of Housing Benefit the Defender had a meeting on 5 June 2002 at the Pursuers' office where she agreed to pay full rent of £244 per month and £10 towards arrears which stood at £1,274.88.
9. The Defender paid £244 on 5 June 2002, £20 on 19 June, £240 on 9 July, £350 on 5 September and £244 on 3 October 2002. No other payments were made to account that year by the Defender nor were any housing benefit payments received.
10. Between October 2002 and January 2003 5 letters were sent to the Defender by the Pursuers requesting payment of arrears or for the Defender to attend to discuss any difficulties there might be. No replies to these letters were received and no contact was made by the Defender at the Pursuers' offices.
11. After a further letter in February 2003 when legal action was threatened, the Defender paid £600 which she had saved for rent and it was confirmed a housing benefit claim was pending.
12. By April 2003 rent arrears stood at £1555.75 and a series of letters were sent to the Defender by the Pursuers seeking payment of arrears or requesting attendance at a meeting to explain the situation. No reply was received to these letters.
13. This action seeking £1936.20 arrears of rent was raised in July 2003. The Defender contacted the Pursuers on 19 January 2004 when she agreed to pay £250.44 per month rent plus £40 per month towards arrears.
14. Since 19 January 2004 only 4 payments totalling £100 per month have been made by the Defender. As at the date of the proof arrears stood at £2,180.07. This sum included a housing benefit reclaim of overpayment of £481.03 imposed on 8 August 2003 and a credit of rent totalling £250.44 dated 19 December 2003 which was said to be "clawed back".

FINDS IN FACT AND LAW:-

1. This Court has jurisdiction.
2. The Pursuer has failed to prove that the credit of £240.44 of Housing Benefit dated 19 December 2003 is rent unpaid by the Defender.
3. The Pursuer has failed to prove that the adjustment allowance on the Defender's rent statement dated 8 August 2003 for £431.03 represents rent that has not been paid by the Defender.
4. The Defender is resting owing to the Pursuers the sum of £1448.50 in unpaid rent for the house at 16 Torwood Place, Dundee.
5. Notwithstanding the Defender's state of health and that of her daughter and that her son resides at the subjects also, it is reasonable to grant an order for recovery of possession of the subjects at 16 Torwood Place, Dundee in terms of Section 16(3)(a) of the Housing (Scotland) Act 2001.

FINDS IN LAW:-

1. The Defender being due and resting owing to the Pursuers to the extent of FOURTEEN HUNDRED AND FORTY EIGHT POUNDS AND SIXTY PENCE (£1448.60) STERLING the Pursuers are entitled to decree to that extent with interest at the rate of 8 per centum per annum from 18 July 2003 until payment; Finds the Defender liable to the Pursuers in the expenses of the cause; allows an account thereof to be given in and remits the same, when lodged, to the Auditor of Court to tax and to report.
2. It being reasonable, the Court grants an order for recovery of possession of the subjects at 16 Torwood Place, Dundee in terms of Section 16(3)(a) of the Housing (Scotland) Act 2001 and paragraph 1 of Schedule 2 to the said Act on the basis that rent lawfully due by the Defender to the Pursuers has not been paid.
3. Accordingly, repels both pleas-in-law for the Defender.

1. This is an action for recovery of possession of a rented house and for arrears of rent. It was agreed that the Defender should lead.

In giving evidence the Defender did not deny that for long periods she did not pay rent and arrears began to develop.

I accepted her evidence as to her medical problems.

2. The Defender explained that she had suffered from epilepsy since the age of 21. She is now aged 37, a single parent and has a 14-year-old daughter and 19-year-old son who both live with her. She has lived at the subjects for the last 11 years from when the property was first built and let.
3. I accepted that the Defender's daughter had a learning disability. I was referred to school psychologist's report dated February 1997 where the Defender's daughter Rachael was described as a child of average general ability who has difficulty with her short-term memory. I was advised that Rachael's position remained essentially the same; she still lacks confidence and becomes agitated. However Rachael is able to walk to and from her local high school unaccompanied. She has modest career ambitions.
4. The Defender's son Barry is currently unemployed and in receipt of £84 per fortnight job-seeker's allowance. He has held jobs in the past and is looking for employment. He does not contribute anything by way of keep to the family budget. The Defender allows her son to retain all of his benefits so that he can clothe himself and travel to job interviews.
5. The Defender developed a blood sac at the front of her brain in 1999 which necessitated an operation. She was off work for 4 months. She continues to take medication for epilepsy and has attacks about 2/3 times a year during which the left side of her face twitches uncontrollably for several minutes and she has to sit down until the incident wears off. The Defender indicated these attacks are brought on by stress.
6. The Defender is employed as a playworker and had been so employed in 1999 when she had her operation. She had to give up work due to childcare difficulties in April 2003. In January 2004, however, the Defender was able to resume work.
7. The Defender earns around £240 per month and when in employment these earnings roughly cover her rent. She received £27 per week family tax credit and £16 per week child benefit. In addition the Defender has been awarded £5.10 per week from the Child Support Agency. In practice, however, due to difficulties with her ex-husband and the sporadic nature of his employment she often does not receive the money although for benefit and housing benefit purposes the CSA award is assessed as regular income.
8. During spells of unemployment the Defender has had her full rent paid by way of housing benefit. However when the Defender has resumed employment or there has been a change of circumstances, for example when her son was employed, housing benefit has ceased.
9. It was common ground that housing benefit applications take many weeks to process locally and frequently there have been large back-dated awards of housing benefit in the Defender's case to cover applications made some time previously on account of an adverse change of circumstances.
10. On the occasions when the Defender has resumed employment full housing benefit has been withdrawn. Usually however, on account of the Defender's modest circumstances an award of housing benefit has been made which has the effect of paying part of the rental for the subjects.
11. The Defender said her mother, brother and sister all lived in Dundee. They each have their own accommodation but no-one has a spare room or accommodation to house the Defender and her family should she lose her house. The Defender indicated a willingness to attempt to pay the arrears of rent.
12. Mrs Sharon Tkaczyk, a housing officer employed by the Pursuers, gave evidence that the Defender's rent account had been erratic for a number of years. She explained how the Pursuers monitor rent accounts each month to ensure there have been regular payments of rent and/or housing benefit.
13. Similar evidence was given by Mrs Caroline McLeod, the Pursuer's Office Co-ordinator who had worked under Mrs Tkaczyk's supervision in dealing with the Defender's account.
14. These witnesses spoke to a series of letters being sent to the Defender when no payments of rent had been made for many months. The Defender met Mrs Tkaczyk at the Pursuers' offices on 5 June 2002 when the Defender agreed to pay the full rent of £244 per month for the subjects and £10 per month towards arrears which then totalled £1274.88.
15. The Defender made the payments towards her rental account referred to in finding in fact no 9 above but made no other payments in 2002 after 5 October. The Pursuers' employees sent the Defender the series of letters referred to in finding in fact no 10 which failed to provide a response or a visit from the Defender.
16. After Mrs McLeod sent the Defender letters on 31 January and 7 February 2003 regarding rent arrears which had reached over £2000 the Defender attended the Pursuers' office on 13 February 2003 and paid £600 towards her rent arrears. Around that date the Defender signed a new tenancy agreement which was operated by the Pursuers.
17. Further letters were sent to the Defender during 2003 due to rising arrears of rent. No reply was received to these letters. By 12 May 2003 arrears of rent stood at £1741.21.
18. On 28 May 2003 a notice of repossession was sent to the Defender whose arrears of rent stood at £1866.45. Further letters were sent by the Pursuers to the Defender. No reply was received to these letters.
19. On 19 January 2004 the Defender attended the Pursuers' office and agreed to pay monthly rent of £240 and £40 per month towards arrears.
20. By the date of the proof on 19 February 2004 only £100 per month had been paid by the Defender. The Defender's rent account contained arrears of £2180.07 although this included £481.03 of a housing benefit overpayment.

SUBMISSIONS BY THE PURSUERS

21. I was urged to grant decree for the arrears sued for, namely £1936.20, ejection and expenses due to the Defender's continual failure to pay arrears for repeatedly defaulting an agreement to pay.
22. I was referred to Perth & Kinross Council -v- Gillies 2001 SCLR 1104. In that case recovery of possession of the defender's house was sought due to his drug dealing activities. He had apparently been a tenant of long-standing
23. I was in particular referred to Sheriff Foulis' judgement at page 1108 E-G where it was stated that the tenant lived alone but would have difficulty obtaining alternative accommodation. No accommodation was available with his relatives and he was in poor health. Notwithstanding these factors decree for ejection had been granted.
24. It was confirmed that even if the decree was granted as craved the Defender would have a further opportunity to put her case before the management committee of the Pursuers before any action to evict would be considered.

SUBMISSIONS FOR THE DEFENDER

25. I was referred to City of Edinburgh Council -v- Allan 1997 Housing Law Reports 3 where Sheriff Poole had held the court had a duty to consider a child's welfare as paramount before reaching a decision to evict. The tenant had children of her own and complaints had been received about their anti-social behaviour in the neighbourhood. The Sheriff had held there was a duty to consider the welfare of all children in the neighbourhood, not just the tenant's and had granted decree of eviction.
26. I was urged in the present case to take into account the health of the Defender and her daughter. It was not reasonable to evict in such circumstances.
27. Miss McDonald pointed out that the ...............and delays of the housing benefit system. Overpayments were sought 2 years later and the Defender's account gave a false balance as to her liabilities. The Defender was under great stress on a low income trying to support her children. Due to being in and out of work, her son occasionally working and the Child Support Agency award which was rarely paid by her ex-husband the Defender's position regarding housing benefit frequently altered.
28. It was indicated that the Defender still had outstanding housing benefit issues which were likely to have an effect on the rent arrears balance. The court had however on 5 February 2004 refused to delay the proof pending the resolution of the matters.

DECISION

29. I recognise that the Defender is existing on a low income and there have been times in the last few years where she has been unable to work due to ill health and the need to look after her daughter.
30. The Defender has however been in arrears of rent for many years. During the times when the Defender has been unemployed she has been entitled to housing benefit equivalent to the full rent charge. When that has occurred there has usually been little or nothing paid towards arrears of rent. The Defender does not seem to have made an arrears .................. arrangement to make even minimal payments at these times.
31. It seems clear that even when in employment the Defender is entitled to some housing benefit but there have been delays in claiming this. This may have resulted in back-dated awards of housing benefit being repeated.
32. I accept that if evicted the Defender would experience difficulty in obtaining other accommodation; relations are not in a position to provide any. It is likely the local authority would provide accommodation at least for the Defender's children.
33. While this seems a harsh solution I have to consider the length of time during which the Defender has been in substantial arrears of rent. There have been long periods where nothing has been paid in rent and the Defender has failed to respond to the Pursuers' letters. That correspondence urged the Defender to call at the Pursuers' office and discuss any problems she might have in this context.
34. I note that the Pursuers' office and the Defender's house are situated in the same street and indeed share the same postal code. It seems logical to assume that the distance between the office and the subjects is a short one.
35. All of this leads me to conclude that the Defender has not been reasonable in her dealings with the Pursuers. I accepted the evidence of Mrs Tkaczyk that the Pursuers would have accepted any realistic proposal to cover the rent and regularly pay something towards arrears. It may be that the Defender in her rare visits to the Pursuers' office felt compelled to offer more than she could afford but often thereafter paid nothing at all.
36. I was concerned that not all of the sum sued involved arrears of rent. I referred parties to "Eviction and rent arrears" by Jonathan Mitchell QC para. 3.21 at seq. It appeared that the balance sought of £1,726.20 included £481.03 said to be a housing benefit reclaim of overpayment unpaid on 8 August 2003 and a credit of rent for £250.44 paid by housing benefit on 19 December 2003 which was said to be "claimed back". I did not consider these elements to be rent. I have accordingly deducted these claims from the sum sought. It may be that any outstanding claim for housing benefit which the Defender has may address these matters.
37. In any event I consider it to be reasonable to grant decree to the Pursuers for the reduced sum of £1448.60 together with ejection and expenses. The Defender has not acted reasonably in her dealings with the Pursuers on several occasions over the last few years. I appreciate her difficulties and the hardship that this decision may cause. The Defender cannot however be immune from the effects of Section 16 of the Housing (Scotland) Act 2001. If she fails to pay rent for considerable periods and fails to respond, communicate with or visit the Pursuers to discuss their reasonable demands or to inform them of her difficulties and what she is doing to alleviate these, then her continued tenancy must be in jeopardy.