Private rented housing – Enhanced Enforcement Areas 9 Privately owned housing – local authority powers 10 Elsewhere in the Act… 11 The Housing (Scotland) Act 2014 GWSF Member Briefing This briefing provides a summary of what the final Housing (Scotland) Act contains, after the various changes that were made during the Bill’s Parliamentary passage which ended in June. The Bill received Royal Assent on 1 August 2014 and became the Housing (Scotland) Act 2014. Where appropriate it includes brief comments on GWSF’s view of the changes the Act will bring. 1 Introduction This briefing does not cover every provision in the Act but focuses instead on: Social sector changes to the right to buy, allocations and tenancies Changes relating to the powers of the Scottish Housing Regulator and to tenant ballots in group structures Private rented sector – Enhanced Enforcement Areas Privately owned housing – enhanced local authority powers over owners The Act can be seen at Timetable - when will it all come into force? Different parts of the Act will be brought into force at different times. In most cases we don’t yet know much in the way of commencement dates, though we do know that the right to buy will be abolished two years after Royal Assent – hence on 1 August 2016. We also understand that the provisions on tenant ballots in group structure
arrangements are expected to come into force around November 2014. 2 Abolition of right to buy Part 1 of the Act abolishes the right to buy altogether, two years from the date of Royal Assent – on 1 August 2016. Whilst the two year lead-in period is longer than GWSF wanted, it does at least represent a reduction from the originally proposed three years. There are no other changes to RTB, so all the current complexities will have to be tolerated for the remaining time RTB is in operation. 3 Social sector allocations Reasonable preference categories The only significant change here is that under occupying social housing tenants will be a new ‘reasonable preference’ category. The revised categories are: People who are homeless or threatened with homelessness and have unmet housing needs People living in unsatisfactory housing conditions and have unmet housing needs Social housing tenants considered by their landlord to be under occupying The first two categories mirror the existing categories (with the addition of the reference to unmet needs). As now, ‘unsatisfactory housing conditions’ can cover any situation where someone is badly housed – e.g. someone experiencing domestic abuse. The Act says that someone has unmet housing needs where the landlord considers that the household has housing needs which can’t be met by the available housing options. Whilst this is, in many ways, an unsatisfactory definition, the Act says that landlords must have regard to any Scottish Government guidance, and GWSF’s understanding is that there will indeed be guidance produced (and consulted on) on this issue, amongst others. We will want to ensure, for example, that the new legislation does not stop landlords housing people who are working but have a positive preference to live in secure, affordable housing. Duty to consult on allocations policies There is a new duty on social landlords to consult tenants, registered tenants organisations and applicants on changes to priorities within their allocations policies, and to publish a report on the consultation. GWSF believes this new duty should largely reflect existing good practice. Experience suggests that interest in contributing to such consultations – particularly among applicants – varies, and associations will be keen to see a non-prescriptive approach to consultation and reporting from both the Scottish Government and Scottish Housing Regulator.
Repossession of a tenancy in Scotland on the grounds of damage to the property Rent arrears above a certain level Deliberately providing false information as part of a housing application Refusal of offers of housing, where the landlord considers the refusal to be unreasonable. The Act allows – but doesn’t require – the Scottish Government to set down in regulations (a) the maximum period for which someone can be suspended, and (b) how far back a landlord can go in considering previous behaviour. There may be some worries about trying to legislate for the latter: landlords generally accept the principle of recognising that people can change their behaviour over time and should not be penalised unduly for previous misconduct, but to put a specific time period into law could be seen as very inflexible. The Act introduces a new right of appeal to the court for applicants aggrieved at being suspended. The Scottish Government is likely to produce and consult on guidance on suspensions. 4 Social sector tenancies Short SST for anti social behaviour The Act widens the circumstances in which landlords can either give a Short SST for anti social behaviour or demote an existing tenancy to a Short SST. Currently, this applies only to a tenant or applicant who has been evicted for anti social behaviour or subject to an ASBO in the last three years. The Bill makes a number of changes: The ASBO provision will now apply to a tenant, joint tenant, member of the household, lodger, sub tenant or visitor A Short SST can be given (to a tenant, joint tenant, member of the household, lodger, sub tenant or visitor) for a much wider range of ASB – i.e. any ASB or harassment towards someone in the area The minimum period for a Short SST for ASB is to be 12 rather than six months, extendable to 18 months Clarification that for any Short SST for ASB, at the end of the 12 or 18 month period the tenancy converts automatically to a full SST if the landlord has not taken action to end the tenancy Clarification that the tenant must receive a notice at least two months before expiry of the Short SST either ending or (in the case of a 12 month tenancy) extending it to 18 months Clarification that the court must make a repossession order where the Short SST is being ended by the landlord Landlords must have regard to any Scottish Government
The current six month qualifying period for co-habiting couples who are not spouses or civil partners is increased from six to 12 months. Level 2 and 3 successors – family members and carers – will have to meet a new 12 month qualifying period. In all cases the landlord would have to have been notified (by the tenant or prospective successor) that the person was living in the property. Note: As now, all the above qualifying requirements around succession and assignation etc. are about the tenant’s rights. Landlords will continue to have discretion to reduce or waive these requirements where they are satisfied that the circumstances are genuine and not ‘queue jumping’. This discretion accords with GWSF’s previously expressed preference for a six rather than 12 month qualifying period. Eviction after conviction There is to be a requirement that a court grants an order for possession made by a landlord within 12 months of a tenant’s conviction for using the property for illegal or immoral purposes or for an offence punishable by imprisonment committed in, or in the vicinity, of the house. The Scottish Government will produce and consult on guidance on these provisions. Whilst this speedier route to recovery after conviction is welcome, landlords are likely to want to exercise discretion where, for example, a conviction (e.g. for possession of drugs) did not result in anti social behaviour affecting neighbours or others in the community. Recovery of possession of adapted property There is a minor but helpful change here. Currently, when a landlord has let an adapted property to a household which doesn’t need the adaptation, it can recover possession of it (to offer it to a disabled household) only if the existing household ‘no longer’ requires the adaptations. The amendment in the Act means that this ground can now apply equally in the case of households who have never required the adaptations. As now, the duty to offer suitable alternative accommodation applies in such cases. 5 Scottish Housing Regulator powers – RSL insolvency The Act specifies four tests which need to be met before the SHR can set aside the normal requirement for it to consult an RSL’s tenants and lenders before directing a transfer of its assets. The four tests are: The RSL’s viability is in jeopardy for financial reasons There is a risk of someone taking steps to have the RSL declared insolvent A direction to transfer assets would substantially reduce the likelihood of someone taking