Elaine McConnell has been a council tenant since 1996. In March 2024, her adult son, who lived with her and was a qualifying occupier, was convicted of an offence under section 4(3)(b) of the Misuse of Drugs Act 1971. Ms McConnell was not at the property when the offence took place and was unaware of it.

The council sought possession using the streamlined eviction procedure under section 16(2)(aa) and paragraph 2 of Schedule 2 to the Housing (Scotland) Act 2001.

In November 2025, a summary sheriff refused the application. While accepting that the council had a legitimate aim in tackling drug dealing, she weighed Ms McConnell’s health conditions, her otherwise incident-free tenancy, the lack of evidence of any specific community impact, and the positive effect of her son’s community-based sentence. She concluded that eviction would be disproportionate. The Sheriff Appeal Court allowed the council’s appeal in June 2026.

Ms McConnell applied under section 38(b) of the Sheriff Courts (Scotland) Act 1971 for certification as suitable for further appeal. Sheriff Principal Catherine Dowdalls KC applied a test similar to that for second appeals under section 113 of the Courts Reform (Scotland) Act 2014: whether the case raises an important point of principle or practice not yet established, or there is another compelling reason for the Court of Session to hear it.

She held that the compatibility of the 2001 Act’s streamlined eviction framework with Article 8 has not been authoritatively determined, as earlier authorities concerned materially different statutory schemes. She also found that the correct approach to Article 8 proportionality in streamlined eviction cases remains unresolved.

Ms McConnell’s wider arguments include whether proportionality should extend to the circumstances of the offending, the tenant’s own culpability and ongoing risk; the proper standard for appellate review of a first-instance proportionality assessment; and whether requiring evidence of impact beyond the “ordinary impact of eviction” amounts to an elevated threshold that revives a disapproved exceptionality test.

South Lanarkshire Council opposed certification, arguing the principles are already settled. It said a broader inquiry into surrounding circumstances would reintroduce the general reasonableness test that Parliament deliberately removed from the streamlined procedure. It also pointed to section 16(3A) of the 2001 Act, which preserves a tenant’s ability to rely on Convention rights, as showing there is no incompatibility with Article 8.

The sheriff principal was not persuaded that Ms McConnell’s proportionality argument was likely to succeed on its own facts, given the lack of evidence about the particular impact eviction would have on her. But she held that this did not make the appeal merely academic, describing the wider issues as “a matter of principle of general public importance suitable for determination on appeal to the Court of Session.”

A Court of Session ruling could clarify how far courts must weigh a tenant’s circumstances and culpability once a mandatory ground is established, and whether the regime itself is compatible with Article 8.

Expenses were reserved, with a hearing to be fixed if parties cannot agree within 14 days.

A full case report can be read in our sister title Scottish Legal News.