The Upper Tribunal (UT/AP/0973) has recently quashed a decision of the First-tier Tribunal for Scotland (Housing and Property Chamber) (FTT) granting an eviction order of a Private Residential Tenancy on the basis of substantial rent arrears.
In the case of Feathersone v Nwaobi, (EV/23/1073) notice to leave was served under grounds 12 and 12A of Schedule 3 of the Private Housing (Tenancies) (Scotland) Act 2016. When the application to the Tribunal was lodged in April 2023, arrears exceeded £4,000 and no rent had been paid since February 2022. At the CMD, the tenant opposed eviction stating deductions from his Universal Credit entitlement had been paid direct to the landlord. The landlord’s agent understood there had been communication with Universal Credit but no payments had been received.
A Hearing was assigned and parties directed to lodge evidence. Evidence for the landlord suggested payments were not made to the rent account, however, the tenant submitted a partial screenshot confirming receipt of benefits, but not that such payments had been made to the rent account.
The tenant failed to participate in the Hearing. Despite two nominal payments since the CMD, the arrears exceeded £6,000; over 18 months’ rent. The FTT determined it was reasonable to grant the eviction order. Its decision stated: ‘there was no evidence that rent has been or will be paid by state benefits. receives an element of housing benefit’.
The tenant appealed on the basis the FTT had failed to properly address the issue of whether arrears had been due to a failure or delay in payment of benefits.
Under the legislation, the FTT is indeed bound to consider whether arrears over the period in question is wholly or partly a consequence of delay or failure in the payment of a relevant benefit, including Universal Credit.’ Given the evidence presented, the UT held the FTT’s findings were ‘incomprehensible’ and ‘simply wrong’ which amounted to an error of law. The appeal was therefore allowed and the case will be re-heard.
The decision serves as an important reminder that – even in cases with substantial arrears – landlords and agents should consider the tenant’s benefit entitlement, if there are specific difficulties and what steps could have been taken to secure payment. Only then can the FTT properly consider if eviction is reasonable.
