Sheriff Appeal Court certifies streamlined eviction case for appeal to Court of Session

About this case:

• Citation:
  [2026] SAC (Civ) 68
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Catherine Dowdalls KC

Sheriff Principal Catherine Dowdalls KC held that the case raised important points of principle or practice which had not yet been authoritatively determined in Scotland, including the compatibility of the statutory streamlined eviction regime with Article 8 of the European Convention on Human Rights and the proper scope of proportionality assessment under that regime.

Mitchell KC and McPhee, advocate, instructed by South Lanarkshire Council Legal Services, appeared for the council. Anderson, advocate, instructed by Cartys, appeared for Elaine McConnell.

Ms McConnell has lived in a property let by South Lanarkshire Council since 1996. In March 2024 her adult son, who was then living with her and was a qualifying occupier of the property, was convicted of an offence under section 4(3)(b) of the Misuse of Drugs Act 1971.

Ms McConnell was not present at the property when the offence was committed and was unaware of it. The council nevertheless sought recovery of possession under the streamlined eviction procedure contained in section 16(2)(aa) and paragraph 2 of Schedule 2 to the Housing (Scotland) Act 2001.

Summary sheriff refused eviction

In November 2025 the summary sheriff refused the council’s application. She accepted that the council pursued a legitimate aim in tackling drug dealing in local communities but took account of Ms McConnell’s health conditions, the fact that her occupation of the property had otherwise been incident-free, the absence of evidence about any particular impact of the offending on the local community and the positive effect of the community-based sentence imposed on her son.

The summary sheriff concluded that eviction would be disproportionate. South Lanarkshire Council appealed and the Sheriff Appeal Court allowed that appeal in June 2026. Ms McConnell then applied under section 38(b) of the Sheriff Courts (Scotland) Act 1971 for the cause to be certified as suitable for a further appeal to the Court of Session.

Scope of proportionality assessment challenged

Ms McConnell argued that the proposed appeal raised important unresolved questions about how Article 8 proportionality should be assessed in streamlined eviction cases. She submitted that where a landlord establishes a mandatory ground for eviction, the court must still consider whether recovery of possession would amount to a proportionate interference with the tenant’s Article 8 rights. Her position was that the Sheriff Appeal Court had wrongly assumed that the familiar “twin aims” of vindicating ownership rights and managing housing stock carried the same weight in a streamlined eviction case as in other statutory schemes considered in earlier authorities. She also contended that the court had wrongly excluded from the proportionality exercise matters such as her own lack of culpability, the circumstances of her son’s offending, his subsequent rehabilitation and the continuing level of risk.

Ms McConnell further argued that requiring evidence of an impact greater than the “ordinary impact of eviction” improperly introduced an elevated threshold into the proportionality assessment and risked reintroducing an exceptionality test which had been disapproved in previous case law. If the 2001 Act did require such a restricted approach as a matter of domestic law, she argued, the statutory scheme was incompatible with Article 8.

Her application identified three wider questions: whether proportionality extends to the gravity and circumstances of the offending and the tenant’s own culpability; the proper standard of appellate review of a first-instance proportionality assessment; and whether the streamlined eviction framework itself is compatible with Article 8.

Council said principles already settled

South Lanarkshire Council opposed certification. It submitted that the proposed appeal had poor prospects of success and raised no important point of principle which had not already been authoritatively determined.

The council argued that the proportionality exercise should focus on balancing the legitimate aims pursued by the landlord against the consequences of eviction for the tenant. A broader inquiry into all surrounding circumstances would risk reintroducing a general reasonableness test which Parliament had deliberately removed from the streamlined procedure.

It maintained that the “twin aims” of ownership and housing management applied to the case and that the circumstances of the offending did not require separate examination once Parliament had made the relevant ground for eviction mandatory. The council also argued that Ms McConnell’s lack of culpability was irrelevant and that evidence of vulnerability had to demonstrate a concrete impact on the proportionality balance rather than merely establish the existence of medical conditions.

It further submitted that section 16(3A) of the 2001 Act expressly preserved a tenant’s ability to rely on Convention rights, meaning there was no incompatibility with Article 8.

Important point of principle

Sheriff Principal Dowdalls referred to the recent Sheriff Appeal Court decision in Chalmers v Melville when considering the test for certification. She held that broadly similar considerations should apply to certification under section 38(b) of the 1971 Act as apply to permission for a second appeal under section 113 of the Courts Reform (Scotland) Act 2014. That test focuses on whether an appeal raises an important point of principle or practice which has not yet been established, or whether there is some other compelling reason for the Court of Session to hear it. The purpose is to restrict the scope for second appeals rather than to provide another opportunity to argue that established law was misapplied.

The sheriff principal identified the proposed issues as including whether proportionality extends to the circumstances of the offending, the tenant’s culpability and ongoing risk; whether an appellate court may substitute its own proportionality assessment; and whether the streamlined eviction regime complies with Article 8.

Wider issues suitable for Court of Session

Sheriff Principal Dowdalls held that the compatibility of the 2001 Act’s streamlined eviction framework with Article 8 had not been authoritatively determined. She noted that the authorities relied upon by the courts in the case had concerned materially different statutory schemes. The correct application of Article 8 proportionality specifically in the context of streamlined eviction also remained unresolved.

She was less persuaded by Ms McConnell’s argument that the proportionality defence could succeed without evidence showing an impact beyond the ordinary consequences of losing a tenancy. The sheriff principal considered that argument unlikely to succeed because of the absence of evidence about the particular impact eviction would have on Ms McConnell.

However, she held that this did not render the proposed appeal merely academic. Sheriff Principal Dowdalls said there were wider unresolved issues which would benefit from examination by the Court of Session, particularly the contention that the Sheriff Appeal Court had interpreted the streamlined eviction regime in a manner incompatible with Article 8. She concluded that this was “a matter of principle of general public importance suitable for determination on appeal to the Court of Session”.

The motion for certification was therefore granted. The question of expenses was reserved, with a hearing to be fixed if the parties could not agree it within 14 days.