Information > Briefings > Housing (Scotland) Act 2001
July 2001
The Housing (Scotland) Act was given Royal Assent on 18th July 2001. The passing of the bill by the Scottish Parliament on 13th June was the culmination of much drafting, re-drafting, lobbying, debate and over 200 amendments The end result is a Housing Act that contains many reforms which SCSH has welcomed. It is, however, only a beginning. SCSH will be pressing for further reforms through the Homelessness Task Force and other appropriate forums. SCSH, with the help of its members, will also be monitoring the implementation of the provisions within the Act. This is critical to ensure the good intentions are translated into reality for homeless people.
This briefing concentrates on the sections that will have the most impact on homeless people and provision of accommodation for homeless people. Copies of the Act are available at www.scottish.parliament.uk or from the Stationery Office.
A Summary of the Act
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Each local authority must assess homelessness in their area and produce a strategy for preventing and alleviating homelessness. These strategies must show how the authority will observe and encourage equal opportunities. Ministers will produce guidance on what should be included, the timescale for production of a strategy and the period the strategy must cover. They can also give specific guidance to individual authorities. The strategies must be reviewed on instruction from the Executive. Local authorities have a duty to provide a copy of their homelessness strategy to anyone who requests it.
Local authorities have a duty to make available advice and information (free of charge) about homelessness and the prevention of homelessness to anyone that requires it. This information must cover services to assist homeless people or to prevent people becoming homeless. The Scottish Executive may issue guidance on the form and content of the advice
Temporary accommodation and advice must be provided to a homeless person while their case is assessed regardless of whether they are in priority need. The period defined as threatened with homelessness is extended from 28 days to two months.
A right of appeal is created where a homeless decision can be challenged and an applicant’s circumstances reviewed by a senior officer in the local authority. Local authorities must now also have regard to the best interests of dependent children when meeting their duties toward homeless people. This follows lobbying by Children in Scotland supported by SCSH. The Act also reverses the "Awua" judgement. People who are unintentionally homeless and in priority need must be found permanent accommodation.
RSLs have a duty to assist local authorities in the provision of accommodation for homeless people. RSL’s can only refuse where there is ‘good reason’ and must reply to a request within a "reasonable period". Good reason and reasonable period will be defined in guidance. There is provision for an independent arbiter if there is a disagreement between the authority and an RSL.
There is very little in the Housing (Scotland) Act itself. The Act allows for occupancy rights to be dealt with by secondary legislation and a working group is currently developing proposals. These rights will have to include a minimum period of notice except where the safety of staff or other residents is endangered.
Scottish Ministers are given the power to instruct local authorities to develop a Common Housing Register (CHR) in their area. RSLs must comply with requests made by local authorities in relation to the establishment of a CHR
Anyone over 16 has the right to register on a housing list held by a local authority or a RSL.
Following a suggestion from SCSH, the broad legal framework for allocating houses which applies currently to local authorities (as set out in the Housing (Scotland) Act 1987), will be extended to RSLs. Specifically the factors which they ‘must not take into account’ in determining an allocation apply across the social rented sector. This includes the following:
Housing providers are also required to take no account of whether an applicant is already resident in their area if the applicant:
The name of the new tenancy is to be the Scottish Secure Tenancy (SST). This will apply to all lets in the council and RSL sectors replacing the current secure and assured tenancies. It is intended that it will be brought in as a ‘big bang’ on a single day – indications are that this will be September 2002. Private rented sector tenancies will remain as "assured" or "short assured".
The Act creates a new right for anyone aged 16 or over to apply for a joint tenancy. This includes same sex couples. Landlords can only refuse with good reason and can be challenged in the courts.
A number of lets cannot be SSTs or short SSTs. These include student lets, premises occupied during a contract of employment or temporary accommodation for homeless people. Fully mutual co-op tenants will be included in these provisions but will not have the right to buy.
Grounds for recovery are listed in schedule two and are at the discretion of the Sheriff. The Scottish Executive has not included its previously heralded new ground for repossession 'due to persistent delay in paying rent’. This follows strong representations from SCSH and others. There is a new mandatory ground for compulsory transfer which relates to the tenant (or persons residing with the tenant) causing a nuisance pursuing a course of conduct which amounts to harassment. Harassment will be defined in relation to section 8 of the Protection from Harassment Act 1997.
"Qualifying occupiers" will now have a right to appear in court during repossession proceedings as well as the tenant themselves. This could be a family member over 16 or a lodger.
RSLs and local authorities will now follow the same abandonment procedures when a tenant quits a property without notice. Abandoned properties can be recovered without court proceedings with the tenant having six months to raise an objection.
As suggested by SCSH there is explicit recognition of same sex couples. The qualifying period before the right to succeed comes into force has been set at 6 months for all cohabiting couples – an improvement on the original proposal of 12 months but a reduction in the current rights of different sex cohabiting couples. As proposed by SCSH the time period for carers to qualify for succession rights has been removed. They must simply be 16 years old or above, have the house as their principal home and have given up secure accommodation. With regard to adapted housing succession rights are limited to spouses and cohabitees. Others, unless they have a need for the adaptations themselves, do not have the right to succeed to that tenancy but must be offered alternative accommodation by the landlord.
Tenants have a right to a written tenancy agreement and access to information, on request, on policies relating to allocations, repairs etc. Information must also be provided on the tenants Right to Buy.
SSSTs can be granted for a minimum period of six months and can be extended for up to a further six months by agreement between landlord and tenant. The SSST has the same rights as the Scottish Secure Tenancy apart from the security of tenure, Right to Buy and succession rights. The list of circumstances (contained in schedule 6) in which a short tenancy can be created are:
Probationary tenancies may only be created for people who have been evicted for anti social behaviour within the last three years who are the subject of an Anti Social Behaviour Order (ASBO). Landlords must provide support to those that are the subject of ASBOs to assist them in achieving a full Scottish Secure Tenancy. Unlike the other short tenancies, probationary tenancies can last for a maximum of a year. After that they convert automatically to a Scottish Secure Tenancy unless they are brought to an end. Tenants can appeal to the courts if they feel they should have a full Scottish Secure Tenancy. The Executive plans a draft model Short Scottish Secure tenancy agreement to be available for consultation at the end of 2001.
The Right to Buy is included in the Scottish Secure Tenancy and will apply to many more Scottish tenants. Tenants with an existing Right to Buy will retain their right with their current discount and qualifying period rules. Significant changes were made during the parliamentary progress of the Act which resulted in a longer qualifying period and lower discounts for new recipients of the modernised Right to Buy than was originally proposed (see section 49 below). However, SCSH remains concerned that the extended Right to Buy will result in fewer good quality properties available for let in the socially rented sector.
Housing associations which had received charitable status on the date of Royal Assent (18th July 2001) will be exempt although tenants who had the right to buy at the time of becoming a charity retain the right. The same is true for co-operative housing associations. Houses designed for people with special needs or with special facilities are exempt from the Right to Buy. RSL properties that are not currently covered by the Right to Buy will remain exempt for a period of ten years. RSLs can apply to opt in to the Right to Buy before the end of the ten years. They can also apply to Ministers for a further ten year exemption. The criteria for such an application will be set out in guidance.
Local authorities can make a proposal to Ministers if they wish to exempt any part of their area from the Right to Buy. This is defined as the need for housing accommodation in social housing exceeding (or likely to exceed) substantially the supply or likely supply of such accommodation. The exemption lasts for up to 5 years.
Prospective purchasers can be refused the right to purchase by their landlord if they have arrears of rent, council tax or water and sewerage charges or if a landlord is seeking repossession of their house. Local authorities will have a duty to provide a certificate of a prospective purchaser’s council tax payment position free of charge to the purchaser.
Tenants entitled to the modernised Right to Buy are required to have lived in a tenancy of a qualifying landlord for a period of five years. Discounts start at 20% and rise annually by 1% to a maximum of 35% of the value of the house. Discounts are capped at £15 000. Ministers can vary up or down the level of discount and the cap on the maximum discount available.
Ministers must publish a report on the effect of the Right to Buy within four years of the Act coming into force. This will include analysis of the impact of sales on housing supply and demand.
This chapter does not create a ‘right to participate’ as such. However, there is a clear statutory duty on landlords to ensure tenant participation. All local authority and RSL landlords must produce a strategy to promote tenant participation, including an assessment of resources required to enable tenants to participate effectively. Landlords must also keep a public register of tenants’ organisations. Local authorities will receive additional funding to develop tenant participation.
Tenants must be consulted about housing management policy and repairs and maintenance, the tenant participation strategy and any plans to transfer the stock.
The regulation of landlords will, in practice, be the responsibility of the new Executive Agency which is to be established to replace Scottish Homes. This will be a single regulatory framework for all RSL and local authority housing management functions.
Duties will include the maintenance of a register of social landlords, provisions for amendments to that register, inspection powers with regard to RSLs and a duty to publish reports on those inspections. Local Authorities can be required to submit a remedial plan to Ministers to deal with aspects of their service that are found to be unsatisfactory during the inspection process. As a final sanction, Scottish Ministers have the power to appoint a special manager if standards are still not being met.
Scottish Homes will be abolished and its functions transferred to a new Executive Agency. The dissolution is expected to take place in November 2001.
The Act commits Scottish Ministers to producing a statement detailing the measures they and local authorities have taken to prevent people from living in fuel poverty – this statement is expected in July 2002. It must be reviewed every four years with a view to the elimination of fuel poverty within 15 years of the initial statement.
Local authorities may be instructed by Ministers to produce a "local housing strategy" . The content of these strategies will be developed in guidance but the Act requires detail on the nature and condition of the housing stock, the extent of housing need and the demand and availability of housing (including special needs housing). The local authority must also explain how the strategy will promote equal opportunities. Two or more local authorities can seek permission to prepare joint strategies.
This enables the funding transfer in the Supporting People proposals and allows local authorities to take on the development funding role previously undertaken by Scottish Homes. The section includes a very broad definition of housing support services: ‘housing support services includes any service which provides support, assistance, advice or counselling to an individual with particular needs with a view to enabling that individual to occupy or to continue to occupy as the person’s sole or main residence residential accommodation other than excepted accommodation’
This section sets out the powers of local authorities to assist registered social landlords in housing matters. This can include improvement, repair and management of housing; undertaking community re-generation activity and acting to prevent and alleviate homelessness.
The section extends the range of repairs and improvements which can receive a grant. This will include installation of mains-powered smoke detectors, replacing unsafe wiring and the fitting of fire-retardant doors. Private tenants must have lived in the property for at least two years to be eligible. The 1964 age of house limit is removed and extends coverage for grants to all houses over 10 years old.
The Act allows for the introduction of means testing and the creation of an appeals system to challenge decisions of the means test. The maximum grant level is set at £20,000 (subject to change by statutory instrument) and an enabling power to introduce a minimum percentage grant for all applicants.
This adjusts the definition of the tolerable standard to include a shower, bath or wash hand basin, but falls short of the radical overhaul of the definition which is required and is currently being considered by the Executive’s Housing Improvement Task Force.
This states that "Scottish Ministers and local authorities must exercise the functions conferred on them by this Act in a manner which encourages equal opportunities and in particular the observance of the equal opportunity requirements"
© 2001 Scottish Council for Single Homeless
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