Step 3: Find out how you need to defend your eviction

If you've had a Notice to Leave, Notice to Quit or Notice of proceedings for recovery of possession but haven't yet got a notice from the court or tribunal that the landlord is applying for an eviction order, they still need to go to court or tribunal to evict you.

You shouldn’t move out if you’re planning to defend the eviction. If you move out you might be seen as abandoning your tenancy and lose the chance to defend it. You should get advice and act quickly as you may be able to stop your landlord from pursuing the eviction further.  

You could negotiate with your landlord or try mediation. 

Negotiate with your landlord

Write a letter to your landlord asking them to stop the eviction process. Say you’re willing to try to challenge the eviction in court if they continue with it.

Your letter should also include:

• your name and address

• a summary of what happened - explain it's discrimination under the Equality Act 2010

• the type of discrimination, for example direct or indirect

• what you want, for example to stay in your home - if you’re asking for money, say how much and how you worked out that amount

• other reasons that you’re challenging the eviction, for example if the notice asking you to leave is incorrect

• that you want a reply within 14 days - if the notice will expire before then, ask your landlord to delay the eviction process until you’ve had chance to consider their reply

Keep a copy of the letter and ask the Post Office for free proof of postage - you might need to prove when you sent your letter.

Try mediation

If you still can’t sort out your problem, you could ask a mediator to help. This is a person who doesn’t know either side and who’s trained to help people resolve disagreements.

You might have to pay for a mediator.

Check your local council’s website to see if they can help you find a mediator - they might help even if you’re not a council tenant. You can find your local council on GOV.UK

If you still need help, you can look for a mediator on the Scottish Mediation website.

Think about making a homelessness application to the council

You can make a homelessness application to the council if you’re at risk of becoming homeless within 2 months. In some cases the council may be able to support you to stay in your home and prevent you becoming homeless. Read more about making a homelessness application.

If you’re a Scottish secure tenant the council or a housing association needs to go to the sheriff court under a type of legal action called Summary Cause to evict you. These are called “possession proceedings.” You’ll be expected to follow the rules on court action for Summary Cause.

If you or the other side - you’re called ‘the parties’ - don’t follow these rules, the court is likely to take this into account when it makes its decision. If you haven’t done what you’re supposed to, you might find that you:

• aren’t allowed to rely on certain evidence or arguments

• are ordered to pay the other side’s legal costs

Read the guidance notes for Summary Cause on the Scottish Courts Website.

Getting a summons

You’ll get paperwork in the post or delivered by a sheriff officer directing you to attend a hearing at the sheriff court - the legal term for this is ‘a summons’.  

The summons tells you:

• the time of the court hearing

• the date of the hearing

• where the hearing will take place

• the grounds on which the landlord is evicting you

• if the landlord is asking for an order to get you to pay rent you owe  

You don’t have to reply to the summons because all eviction cases have to come to court. You can choose not to reply and argue your case in person instead. It’s usually better to reply to the summons because you can set out your arguments against the eviction in a structured way. There’s guidance about your options for responding to a summons on the Scottish Courts website.

If you reply to the summons make sure you say:

• any reasons for challenging the eviction under housing law, for example if the notice asking you to leave wasn’t valid

• why you think you were discriminated against - you’ll need to give the protected characteristic

• all the types of discrimination you’re claiming - you can check if you’re not sure 

• the effect it’s had on you - this could be money you’ve lost or the emotional impact

If you’re in rent arrears, and the summons says your landlord is asking the court to order you to pay the rent you owe, there will be a special form with the summons asking the court to give you time to pay. It’s important to get advice about whether you want to fill in this form or not. It might not be the best thing to do because you’re admitting to owing the debt.  

Check all the facts in the summons are correct before you return it. Make a copy or take a picture of the form and other documents you’ve included for your records.

See example 1 of a reply to a summons in the sheriff court.

Counterclaiming

If you respond to the summons and want to make a counterclaim for compensation for discrimination or for another reason, like money the landlord owes you - you should state that in your summons. 

You’ll need to be ready to explain the reason for your counterclaim. For example you can say you’re claiming compensation for discrimination and this will be used to pay off some or all of the rent arrears.

You can ask for:

• money if you’ve been upset or hurt by the discrimination - this is known as ‘injury to feelings’

• money to cover any you’ve lost as a result of the discrimination

• compensation for personal injury - you’ll have to prove you had the injury and that it was caused by the discrimination

You’ll need to work out how much money to claim. 

There’s a counterclaim in example 1.

Preparing your case for court

You should be prepared to explain to the court why you shouldn’t be evicted and why you should win your counterclaim, if you’re making one. The landlord or their representative will speak first at the hearing to argue why you should be evicted. You will then be asked to speak. The sheriff may ask you questions.

To prepare your case for court, make notes on:

• what you agree with and what parts you disagree with in the landlord’s case as set out in the Summons. If you’re not sure if you disagree or agree with something, you should make a note that you’ll ask for the landlord to prove that in court

• what has happened to you in a chronological order so you don’t forget anything

• what evidence supports each part of your arguments

If there's evidence that you need but you don't have, you might need to ask the landlord for this. For example, your housing file. Here's an example application to recover a housing file. 

If you filled in a Summons, you can use that as a guide to make sure you set out your case to the court in a structured way. Make sure you’re able to say at the hearing:

• why you think you were discriminated against - you’ll need to give the protected characteristic

• all the types of discrimination you’re claiming - you can check if you’re not sure

• the effect it’s had on you - this could be money you’ve lost or the emotional impact

• other reasons for challenging the eviction, for example if the notice asking you to leave wasn’t valid

• if it’s direct discrimination, who your comparator is

• if it’s indirect discrimination, which provision, criterion or practice is discriminatory and why it puts you and other people with your protected characteristic at a particular disadvantage compared to other people. If you’re not sure you can read more about how to show your evidence

• if it’s discrimination arising from a disability, explain how you’re being treated unfavourably because of something linked to your disability. If you’re not sure you can read more about how to show your evidence

• if it’s a failure to make a reasonable adjustment for your disability, explain how their failure is linked to the eviction. For example, your landlord might have refused to help you to complete an online payment form that would make it easier for you to pay your rent with your disability and this is what caused you to get into rent arrears. Explain that the landlord is a ‘controller of the premises’ and what reasonable adjustments you asked them to make

State which part of the law covers your defence

You’ll need to be able to say which part of the law covers your circumstances - it might be more than one.

You’ll need to say you’re defending your landlord’s claim under section 35 of the Equality Act 2010. You should also say the discrimination happened during the ‘management of premises’. This is the legal term that covers most things landlords do, like collecting rent and dealing with repairs.

You should make sure you’re familiar with which part of the law covers your claim. You should be ready to tell the court that you’re defending the eviction under ‘Part 4 of the Equality Act 2010’.

Also be ready to tell the court what type of discrimination happened:

If you’re making a counterclaim for compensation because your landlord failed to make reasonable adjustments you’ll also need to say they’re a controller and you’re counterclaiming under section 20 and 36 of Equality Act 2010.

If the discrimination happened when you were first trying to rent the home

If you’re counterclaiming for compensation you need to say the discrimination happened during the ‘disposal of premises’ under section 33 of the Equality Act 2010. For example your landlord might have forced you to rent a different property to the one you wanted because of your race, and now they’re evicting you for rent arrears.

If the discrimination was by a person whose permission you needed to rent the home

If you’re counterclaiming for compensation you need to say the discrimination happened during ‘permission for disposal of premises’ under section 34 of the Equality Act 2010. For example, your landlord might have refused to let you sublet a room in your flat because of the tenant’s religion, and now they’re evicting you for rent arrears.  

Evidence

Make a list of any evidence you have that you want the court to know about - for example, letters and emails. Make sure you have multiple copies of any documents and take them with you to court - one for you, your landlord, the sheriff and one for each witness you have.

You should be aware that if you have lots of evidence and/or witnesses to support your case the sheriff may arrange a separate hearing later called a ‘proof’ where your evidence is examined. It’s best to get a lawyer to represent you at a proof because the rules of evidence are complicated and if you don’t follow them some of your evidence might not be allowed. The main rules of evidence are in Chapter 8 of the Summary Cause Rules. Think now about what legal help you would get if a proof was needed.

Going to court for the first hearing

You must attend the hearing. If you don’t turn up, the court will assume you don’t want to defend the eviction and is likely to grant the possession order to your landlord. Although there’s a chance you could recall the decision later, you can’t rely on this.  

You need to turn up in plenty of time and report to the sheriff clerk’s office to find out which courtroom the case will be heard in and to let the court know you’ll be there. You might have to wait for a long time for your case to be called as there are often lots of cases on the same day.

If you haven’t been able to arrange representation you should still go to the hearing and put your arguments forward. In some courts there are housing advisers, such as Citizens Advice Bureau advisers, who attend the court and can help people who have hearings that day.

The first hearing is called the “First calling” - the sheriff clerk will tell you where to go and what to do. The sheriff will be wearing a wig and robes. The landlord or their lawyer will give a summary of their reasons for evicting you and then the sheriff will ask you or your lawyer or adviser to speak. While the landlord or their lawyer is talking you should make notes about any of their arguments that aren’t correct and that you have evidence to argue against. You need to address the sheriff politely as as My Lord/Lady.

As well as your arguments against the eviction you’ll need to set out your counterclaim, for example for compensation for discrimination. Follow the notes you’ve made when preparing for court to make sure you don’t forget anything.

If you haven’t had time to prepare for your hearing for a good reason, for example you’ve been ill or you need time to get legal advice, when you attend the hearing it might be possible to ask the court for an “adjournment”. This means the case is delayed to give you time to prepare.

If you’re defending your eviction with housing law and/or discrimination arguments the sheriff will probably arrange another hearing called a “proof” hearing. This means witnesses will be called and your evidence of discrimination examined.

There’s more guidance about going to court on the Scottish courts website.

A proof hearing

A proof hearing is a separate hearing where evidence is presented and considered. It’s a formal hearing in which you and your witnesses can be asked questions by the lawyers of each side. There are complex rules about how you involve witnesses and present evidence in Summary Cause - you must follow these. The main rules for defended actions the rules are in Chapter 8 of the Summary Cause rules but you would need to have a good understanding of all the rules.

Although you could represent yourself, it’s best to get a solicitor if a proof hearing is arranged. This is because if you don’t follow the rules your evidence might not be allowed and it could harm your case. A citizens advice bureau adviser can’t represent you at a proof hearing.

The sheriff decides

The sheriff might make a decision at the end of the proof hearing or take weeks to decide. The sheriff will make their decision based on the evidence from both sides.

The sheriff will tell you their decision about different aspects of your case, for example:

• whether you have a protected characteristic

• whether you were discriminated against

• whether the other side has an effective defence - for indirect discrimination or discrimination arising from a disability this includes if the discrimination can be justified

The sheriff will decide on each part of the case, not just the discrimination. They’ll decide whether your landlord has been able to prove they’re entitled to evict you - this might includes things like whether the notice you received is valid and whether it is reasonable to evict you (depending on what type of tenancy you have).

The court will decide whether each part of your case is more likely to have happened or be true than not. For example, they might have to decide whether you are more likely than not to have a disability. This is called being proved 'on the balance of probabilities’.

The sheriff could:

• dismiss the action, meaning the eviction isn’t granted or

• grant the landlord a court order to evict or

• grant the landlord a court order but delay it

• continue the case to another hearing

The sheriff might also order that:

• you’re given compensation

• your landlord has to change something, for example their policy on disabled tenants

• one side must pay the other side’s costs (called expenses)

If you’re also claiming money, the sheriff will decide the amount - this could be different to what you asked for. They’ll tell you when and how you’ll be paid. You might have to pay your landlord for rent arrears if the amount you’re given is less than the amount you owe.

If your case is about indirect discrimination and your landlord proves they didn’t mean to treat you unfavourably then the court can’t look at giving you compensation until it’s considered the other solutions available to it. For example they might look at getting them to change the rule or practice that was discriminatory.

The rules covering this are in section 119 of the Equality Act 2010.

Asking the sheriff to delay the eviction

If the sheriff grants the landlord an eviction order it may be possible to delay the eviction by 1 to 3 months by asking the sheriff to “supercede extract”. You’ll need a good reason for the delay and evidence, such as evidence of illness or disability in your family or that you won’t be rehoused for a certain period. The sheriff doesn’t have to grant the delay.

You should also get advice about other housing options you have. You might be able to make a homelessness application to the council if you’re at risk of being legally homeless, depending on your circumstances. An adviser at your local citizens advice bureau can help you to make an application.

If you’re a private tenant the landlord needs to get a possession order from the First-tier Tribunal for Scotland before they can make you leave your home. You’ll get a notice that they’ve applied to the tribunal and have the chance to reply within 14 days.

Replying to the tribunal

You’ll have to build your discrimination and housing law arguments to challenge the eviction and write to the tribunal setting these out. If you need help, speak to an adviser. You usually have 14 days to reply to the tribunal but you could ask for more time to gather evidence. The tribunal doesn’t have to grant this. Say why you disagree with the eviction and give as much detail as you can to explain what happened.

Make sure you state:

• why you think you were discriminated against - you’ll need to give the protected characteristic

• all the types of discrimination you’re claiming - you can check if you’re not sure

• the effect it’s had on you - this could be money you’ve lost or the emotional impact

• reasons for challenging the eviction under housing law, for example if the notice asking you to leave wasn’t valid

• if it’s direct discrimination, who your comparator is

• if it’s indirect discrimination, which provision, criterion or practice is discriminatory and why it puts you and other people with your protected characteristic at a particular disadvantage compared to other people. If you’re not sure you can read more about how to show your evidence

• if it’s discrimination arising from a disability, explain how you’re being treated unfavourably because of something linked to your disability. If you’re not sure you can read more about how to show your evidence

• if it’s a failure to make a reasonable adjustment for your disability, explain how their failure is linked to the eviction. For example, your landlord might have refused to help you to complete an online payment form that would make it easier for you to pay your rent with your disability and this is what caused you to get into rent arrears. Explain that the landlord is a ‘controller of the premises’ and what reasonable adjustments you asked them to make

State what part of the law applies

You’ll need to be able to say which part of the law covers your circumstances - it might be more than one.

You should make sure you’re familiar with which part of the law covers your claim. You should be ready to tell the tribunal that you’re defending the eviction under ‘Part 4 of the Equality Act 2010’. You’ll need to say you’re defending your landlord’s claim under section 35 of the Equality Act 2010. You should also say the discrimination happened during the ‘management of premises’. This is the legal term that covers most things landlords do, like collecting rent and dealing with repairs.

You’ll then need to say what happened and why it was against the law.

Counterclaiming

You can't make a counterclaim in the First-tier Tribunal. If you think you want to make a claim for discrimination, you'll need to take a claim in the sheriff court. 

Preparing for a tribunal hearing

Use your reply to the tribunal as a guide to setting out your case in a structured way at a hearing or case management discussion.

Make sure you’ve read the landlord’s case carefully. Make a list of what you agree with and what parts you disagree with. If you’re not sure if you disagree or agree with something, you should make a note that you’ll ask for the landlord to prove that in court.

Write down what has happened to you in a chronological order so you don’t forget anything. Make a list of any evidence you have that you want the court to know about - for example, letters and emails. Make sure you have at least 4 copies of any documents to court - one for you, your landlord, the sheriff and the witness.

Going to the first tier tribunal

The tribunal might decide that a case management discussion or a formal hearing is needed to decide your case. This is where you’ll put forward your housing law and discrimination arguments. You can represent yourself at a hearing but it’s best to have an adviser or a lawyer.

You might be able to get help with the cost of a solicitor under civil legal aid if:

• you’re on a low income or you get benefits and

• you have little or no savings

You should be aware that the tribunal doesn’t order the losing party to pay the winner’s legal expenses, so you can’t rely on this to pay your legal costs. It’s possible to apply for an expenses order if the other side has acted unreasonably and caused unnecessary or unreasonable expenses, but this is rare.

It’s important you go to any case management discussions and hearings that you’re called to attend, unless an adviser or lawyer is going for you. If you don’t put your arguments forward the Tribunal is more likely to grant the eviction order to your landlord.

You can have a supporter like a friend or relative go to the tribunal with you as well as a lawyer or adviser. The supporter can:

• provide moral support

• help to manage tribunal documents and other papers

• take notes of the proceedings

• 'quietly' advise on points of law and procedure

The tribunal decides

The tribunal doesn’t usually decide on the day of the hearing. You’ll get a written “Decision with Statement of Reasons”, usually within 21 days but it may take longer. You can see examples of past decisions on the First Tier Tribunal website. You can stay in your home while you’re waiting for a decision.

The tribunal can decide to:

• dismiss the application, meaning you can’t be evicted or

• grant the landlord an order to evict.

The tribunal might also order that:

• your landlord has to change something, for example their policy on disabled tenants

• one party pay the other side’s legal costs (called expenses), but only if they’ve acted unreasonably and caused unnecessary or unreasonable expenses, but this is rare

The tribunal will make its decision based on the evidence from both sides.

The tribunal will tell you its decision about different aspects of your case, for example:

• whether you have a protected characteristic

• whether you were discriminated against

• whether the other side has an effective defence - for indirect discrimination or discrimination arising from a disability this includes if the discrimination can be justified

The tribunal will decide on each part of the case, not just the discrimination. They’ll decide whether your landlord has been able to prove they’re entitled to evict you - this might include things like whether the notice you received is valid and whether it is reasonable to evict you.

If the eviction order is granted

If the tribunal makes a decision to grant the landlord an order to evict you, the landlord can’t make you leave immediately. They don’t get the eviction order until the deadline for you to appeal has passed. Even once this deadline has passed, if you don’t appeal, only a sheriff officer or another legal agent can make you leave.

You might be able to appeal the decision but you should also get advice about other housing options you have. You might be able to make a homelessness application to the council if you’re at risk of becoming legally homeless, depending on your circumstances. An adviser at your local Citizens Advice Bureau can help you to make an application.

You can appeal a decision of the Tribunal on a point of law. This means that the Tribunal didn’t apply the law in the correct way. You need to get permission from the Tribunal to appeal within 30 days of getting the decision on your case. It can be difficult to appeal so you should get help from an adviser or a lawyer and contact them as soon as possible after your get your decision.