A brief review of the Housing (Scotland) Bill

With the temporary measures in the Tenant Protection (Cost of Living) (Scotland) Act 2022 ending on 31 March this year, the law in housing in Scotland, particularly in relation to evictions, appeared to be getting “back to normal”. The restrictions on carrying out evictions on some grounds such as rent arrears no longer apply. It cannot be said that this was a true ban on evictions, but a temporary stay of eviction for up to 6 months and therefore the impact in preventing individuals from being evicted is therefore unclear. It also remains to be seen whether we might see a surge in evictions as predicted by some tenants’ rights organisations.

Into that landscape comes the new Housing (Scotland) Bill, which has recently been introduced to the Scottish Parliament. There are provisions in relation to rent control which will likely be of significant interest to private landlords. These provisions in particular have already attracted criticism from house builders and landlord groups; there was a recent suggestion reported in the media that investment in affordable rental properties in Scotland is being put at risk, however, a more detailed consideration of this is recommended. Likely of more interest to local authorities and registered social landlords will be the proposed duty to “ask and act”.

Homelessness

The Bill adds to the existing duties and obligations to enquire of current and prospective tenants if there is a potential for homelessness. If it transpires that an individual is homeless, the landlord must ask whether the individuals are aware of any homelessness application having been made by or behalf of the individual and whether the individual consents to the landlord making a homelessness application if considered appropriate.  Once the duty to ask has been discharged, the landlord then has an obligation to act by making a homelessness application to the relevant local authority if it is appropriate to make that application when taking into account of the individuals’ circumstances and it has the consent of the person to make the application.  If there is threat of homelessness then the landlord must take steps to remove or minimise the threat of homelessness, or to make an appropriate homelessness application.  In its present format, it is unclear when the duty will kick in, particularly where a situation is developing and there may not be a clear point where risk becomes a reality.  In our experience, registered social landlords are often alert to the risk of an individual becoming homeless and will take steps to assist where possible by making referrals to sources of advice.  The provisions have the effect of formalising steps that they may already take, but imposing a further duty to make the homelessness application themselves rather than direct an individual to present themselves to the local authority.

The reaction from various landlords and tenants’ bodies has been mixed.  If the new provisions work to improve the position of vulnerable tenants and avoid or reduce the potential for homelessness, they will be warmly welcomed.  This represents a more interventionist approach with a view to addressing issues at an earlier stage, rather than when the individual is already homeless or eviction is imminent.

The proposals have, however, been met with scepticism in some areas and whether or not local authorities and RSLs have the resources to take such steps, particularly in areas which have already declared a “housing emergency”.  Tenants’ rights bodies such as Shelter have indicated that local authorities are sometimes having difficulty in discharging their existing duties as a result of the significant pressures facing them.  It is also reasonably foreseeable that a number of tenants will not engage in the process.  Presumably this would not adversely affect the relevant landlord so long as they make a genuine attempt to assist the individual and keep appropriate records so that they can demonstrate compliance on their part.

Consideration of delay to eviction

A further area of the Bill which be of interest to social and private landlords alike is the introduction of a mandatory obligation on the part of the Sheriff Court or First Tier Tribunal to carry out a consideration of a delay to the bringing of a tenancy to an end.  The Court or Tribunal would have to consider whether it would be reasonable in the circumstances, but would have discretion to delay or not delay as they see fit.  The factors that they need to take into consideration include whether or not to bring the tenancy to an end without a period of delay would cause the tenant or a member of their household to experience financial hardship, have a detrimental effect on the health of the tenant or a member of their household, or have another detrimental effect on someone having a disability.

This appears to be a particularly wide ranging discretion, with no limit or suggestion as to potential timescales.  It is anticipated that almost any eviction would be likely to cause financial hardship to a tenant and may well have a detrimental effect on their health, at least in the short term and it is somewhat difficult to envisage a situation where that could not be said to be the case.  The tenant and landlord would both be given an opportunity to make representations about whether it would be reasonable or not in the circumstances to delay things at the end of the tenancy.  It would therefore be likely that a tenant or their representative would be arguing for a lengthy delay and the landlord would require to counter that by bringing forward other matters such as then the effect that the delay in tenancy being brought to an end may have on tenants other than the individual being evicted.  This balancing act is already carried out on a day-to-day basis when a Sheriff is considering whether or not grant decree for eviction.  A Sheriff already has the ability to supersede the extract of a decree on the motion of either party and so they are already well versed in considering whether or not a period of delay would be required in the circumstances.  This provision would therefore require that consideration on each and every occasion rather than necessarily extending their existing powers, but it is likely that it would lead to more delays between decree being granted and a landlord’s ability to carry out the eviction.

Domestic abuse

Finally, the Bill seeks to introduce an additional pre-action requirement where domestic abuse is a factor in rent arrears.  Where the landlord considers that the tenant has experienced or is experiencing domestic abuse which is having an impact on the accrual of rent arrears, a duty would be introduced to take such an action to support the needs of the tenant, having regard to its domestic abuse policy and provide the tenant with details of other support that may be available.  This would not appear to change the current position significantly.  Factors such as domestic abuse are regularly considered as part of a landlords’ pre-action requirements and they are well versed in making referrals to domestic abuse charities to assist an individual where appropriate.  It should be noted that it can be an extremely difficult and sensitive situation. Landlords must exercise caution when approaching a tenant about whether or not they are a victim of domestic abuse to ensure that they do not inadvertently make the domestic situation worse.  A domestic abuse policy would be required to confirm how the landlord will exercise its functions in relation to tenants whom the landlord has reason to believe have experience, are experiencing or are at risk of domestic abuse.  Again, assistance to particularly vulnerable tenants is to be welcomed.  There has been a realisation in recent years that landlords may be in a position to help such tenants.  In August 2019 ‘Domestic abuse: a good practice guide for social landlords’ was produced and The Domestic Abuse (Protection) (Scotland) Act 2021 introduced a mechanism for landlords to terminate the tenancy interest of perpetrator of domestic abuse and preserve the home for the survivor, although the latter is not yet in force.  The new provisions, if enacted, appear to be a further step forward.

Future developments

The Bill is presently at a very early stage and it will therefore be interesting to follow its progress through the consultation process which will take place. Interested parties on all sides will doubtless provide detailed responses to the provisions of the Bill and changes may be made as a result.