Hi all, I am appealing for any urgent advice anyone can give on this. My young brother has came to me admitting he has received a Summary Cause Summons from his Housing Association for his eviction due to rent arrears. He has left it so late to admit there is a problem and I have to try and help him.

The return date is 14th January!

Basically there has been a screw up at the jobcentre, he was doing a course with them and had a few problems as he has a mdeical issue. God know what they did but his claim was open all year, never closed, but they advised Housing at random times throughout the year that his claim was stopped (reason given: 'other' ?) and his advisor could not explain it. This means that they were randomly stopping his housing benefit and arrears were building up.

He was getting letters about all this but he admits that he just didn't understand them and ignored them. He has had bouts of depression for years since being viciously mugged and goes to stay with family/friends when he does not want to be alone (lives alone). I suppose he was just ignoring it all hoping it would all go away. New forms into housing with request to backdate 6 months going in due to jobcentre mistakes. I have a letter from the jobcentre confirming dates he was entitled to benefit. This reduces the arrears by quite a bit- the rest he is happy to try and pay off in installemnts.

I now have the forms here and want to at least get them filled in and handed into the court tomorrow, then he can try and get representation before the calling date of 21st January. Getting the hard proof from jobcentre going to take longer than a week and confirmation from housing of how much they will pay.

My questions are:

Can he ask for the hearing be delayed to get the info required?

Should he defend?

How do I word a defence of - rent arrears mostly caused by mistake by jobcentre stopping housing benefit, Subject Access Request's being submitted to get proof of errors etc, depression caused by attack is why he ignored/hid from issues etc (he had to have half his face reconstructed after the attack and suffers terribly in cold weather with the metal plates in his face), if they evict he will be placed in a dodgy area and be even more scared to live alone, have a terrible effect on him. This has scared him and is now contacting victim support and doctor for long needed help.

Sorry for longwindedness but am scared for him and this is so short notice!

Any help/advice unbelievably appreciated

Some reading material for you Stopping eviction | rent arrears & the reasonableness defence

What are the details of claim?

I would contact the court tomorrow morning and let them know the situation. They may be willing to grant an extension in the circumstances.

It would also be an idea for you to talk to the housing association explaining the circumstances, also citizens advice, your local MSP and councilor.

Rory, Blueda, thankyou so much. Both very helpful, I will contact all of the above, especially his local councillor as I have met her before and think she could be quite helpful.

I have read through your link Rory (excellent thankyou) and I think questioning the reasonableness could be key. his tenancy record until Feb this year when the mistakes started has been fine - no arrears especially.

In the statement of claim they are relying on:

The defendant has fallen into arrears (715.53).

The Pursuers have called upon the defendant to make payment of said arrears but the defender has refused or delayed to do so.

It is reasonable that an order for recovery of possesion of the property and for payment of the arrears of rent be granted as the pursuer has made repeated demands for payment of the arrears which the defender has ignored.Furthermore the pursuers has made arrangements with the defender for payment of the arrears but the defender has broken these agreements.

The Pursuer believes their right to rent will be seriously prejudiced should the defender continue to occupy etc.

We could argue that the order sought for recovery of posession is not reasonable as a large amount of the arrears were caused by mistakes by Jobcentre Plus, there has been an application submitted for Housing benefit to be backdated the maximum of 6 months based due to Jobcentre Plus wrongly informing Housing his entitlement was stopped. This greatly reduces the arrears. He is willing to repay the remaining balance by having payments deducted directly from his benefits.

As for ignoring the demands for payment, we could argue that he has great trouble understanding official letters or paperwork and during bouts of depression 'hides' from the real worl and does not deal with issues, especially if he doesn't understand them.

For the breaking payment arrangements - true, but because his jobseekers allowance was sanctioned (no payments) for not attending a course he was on (disagreement as they refused to believe he had medical issues that affected what kind of work he can do) BUT he informed the Housing Association to explain he hadn't received his benefit therefore could not pay the arrangement. (not once the jobcentre actually tell him there could be probelms with his housing benefit during that)

As he is fully entitled to Housing Benefit going forward and had NO arrears in the years previous it is not reasonable to claim their right to future rent will be seriously prejudiced.

Also argue that it is not reasonable as his medical problems have contributed to the problems and, should the order be granted, he would be moved to a very unsuitable area. Considering the medical and mental health issues he has this would have a disastrous effect on his health. He feels relatively safe where he is now as he has friends and family close by. As this has shown him how serious his problems are affecting his life he is now contacting victim support and his doctor for some long needed help/counselling.

Should I just reply to each item in their statement of claim, point by point?

I want to get it drafted up and run it by CAB 2moro in case it MUST be in. Thankyou again, I feel I understand more and that he has a reasonable defence to this now, just don't want to mess up submitting it!

Just between us (if it all goes well)...it may be a blessing in disguise. This has shocked him enough to get some help, we have been trying for years but he would not listen, thought he could handle it all himself and denied the attack affected him as much as it did. Silver lining?

Should I just reply to each item in their statement of claim, point by point?

 

It is very important that the cock up with the housing benefit is also mentioned and the reasons for this as well as mentioning that it is being sorted out. Also mention that he is willing to pay the arrears at a reasonable rate from his benefits.

The core of any reasonableness case is a recognition of the problems combined with a clear commitment to sort them out.

Got you, am working on it now. i also came across something on the govanlc site that caught my attention.

When I go to CAB 2moro I am going to ask if, in this case and for a Scottish secure tenancy, is the notice to quit a must as well? I read that they successfully argued that as 2 housing officers had simply delivered the notice to quit by hand, witnessed by each other, the notice for possession was incompetent. The sheriff agreed that only a sheriff officer could serve such notice (I think, its been a long evening so far).

In the court paperwork is a copy of the Notice of Proceedings, with a copy of the 'hand delivered' statement by the 2 housing officers. Am wondering now if notice to quit was ever issued, how was it issued and would it make any (or all?) the difference in this case.

Arrrgggh, why so last minute!! Anyway, thankyou so much Rory, there is at least a wing and a prayer now. Will post back 2moro with update.

Dipply x

Just a quick question, do you know how the Notice to Quit was served? This is a legal preliminary step before eviction proceedings are raised. It ends the tenancy and allows the landlord to raise the summary cause eviction action. The Notice to Quit needs to be served by either sheriff officers or by recorded delivery.

If it was served by a Housing Association housing officer then this would be considered as incompetent in terms of the sheriff court rules (see the case of Govan Housing Association v Kane 2001 which was dismissed by the court as incompetent (inept was the actual word used by the sheriff when refering to service of the notice to quit), and legal expenses were awarded against the housing association). Without the Notice to Quit being served correctly legally there is no basis to bring the action against your brother and the pursuers case would fail.

Sorry didn't see your post before posting.

Am wondering now if notice to quit was ever issued, how was it issued and would it make any (or all?) the difference in this case.

 

I dismissed the principal action in this case. The defender took exception to the service of the Notice to Quit upon which the whole action is founded. He pointed out that the rules of the Sheriff Court require such notices to be served in terms of rule 34.8 of the schedule. That makes it clear that such notices require to be served by three categories of persons posting by recorded delivery and/or sheriff officers doing so by any method competent for the sheriff officer to serve a writ.

 

It was, said the defender's agent, the position that it was not open to any of the categories of person mentioned in 34.8.1 to serve the notice other than by recorded delivery. Mr Stevenson for the pursuers said that the word 'may' in the section brooked the possibility that there were other methods competent to serve such a notice and what was done in this case by introducing it into the defender's letterbox by an officer of the pursuers was sufficient.

 

I disagreed in that in my view the service of a notice to quit which is such a fundamental and important document for the purposes of recovery of heritable possession that it required to be served in the manner set out in 34.8 and that this did not brook any other method of service. So the options were, recorded delivery by any of the persons mentioned in 34.8.1 or sheriff officers.

 

In this case it was not sheriff officers who made the service and in my view it was therefore inept. Accordingly, the foundation for the action having been withdrawn it must fall, but the counter-claim still remains. I took the view that there was the bare bones of a right of action here although the defender's averments if true show that on the matter of proof the defender cannot succeed. The defender's agent to facilitate matters reduced the sum sued for to below the ordinary cause limit to enable a proof to be fixed and the matter to be dealt with.

Please note rule 34.8 refers to the ordinary cause rules. The appropriate rules in a summary cause action are contained in the summary cause rules chapter 5 Register of Summary Causes, service and return of the summons.

Aha, you may be onto something here. My brother brought me all the paperwork he had from the association and no sign of it - that is not to say it was something he had a long while ago but there must obviously be a traceable record of the delivery. We maybe could stop this all.

That is my mission for the morning. thank you again, especially at this wee small hour.

Inept...I like it